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

                                  9103

                          I N  A S S E M B L Y

                            January 26, 2016
                               ___________

Introduced  by  M. of A. KOLB -- read once and referred to the Committee
  on Ways and Means

AN ACT to amend the tax law, in relation to excise tax  on  telecommuni-
  cations services (Part A); to amend the tax law, in relation to tempo-
  rary  municipal assistance sales and compensating use taxes for cities
  of one million or more on telecommunications services (Part B); and to
  amend the tax law, in relation to the effectiveness of any local  law,
  ordinance  or resolution imposing any tax increasing or decreasing the
  rate of tax on telecommunication services (Part C)

  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 components of legislation relating
to  the  "mobile  tax  freedom  act". Each component is wholly contained
within a Part identified as Parts A through C. 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,  including the effective date of the Part, which makes a refer-
ence 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 Part in which it is found. Section three of this
act sets forth the general effective date of this act.
                                  PART A
  Section 1. Subdivision (a) of section 1115 of the tax law  is  amended
by adding a new paragraph 44 to read as follows:
  (44) MOBILE TELECOMMUNICATION SERVICES.
  S  2.  Paragraphs  (a)  and  (h) of subdivision 1 and paragraph (a) of
subdivision 2 of section 186-e of the tax law, paragraph (a) of subdivi-
sion 1 as amended by section 2 and paragraph (h)  of  subdivision  1  as
added  by  section  3  of  part S of chapter 85 of the laws of 2002, and
paragraph (a) of subdivision 2 as amended by section  2  of  part  P  of
chapter 59 of the laws of 2015, are amended to read as follows:
  (a) [(1)] "Gross receipt" means the amount received in or by reason of
any  sale, conditional or otherwise, of telecommunication services or in
or by reason of the furnishing  of  telecommunication  services.  [Gross

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

                                                           LBD13548-01-6

A. 9103                             2

receipt from the sale of mobile telecommunications service provided by a
home  service  provider  shall  include "charges for mobile telecommuni-
cations service" as described in paragraph one  of  subdivision  (l)  of
section  eleven  hundred eleven of this chapter, regardless of where the
mobile  telecommunications  service  originates,  terminates  or  passes
through.]  Gross  receipt  is  expressed in money, whether paid in cash,
credit or property of any kind or nature, and shall be determined  with-
out  any  deduction therefrom on account of the cost of the service sold
or the cost of materials, labor or services used or other costs,  inter-
est or discount paid, or any other expenses whatsoever except that there
shall,  however,  be  allowed  a deduction for bad debts with respect to
charges previously subjected to the tax  hereunder  when  the  debt  has
become  worthless in accordance with generally accepted accounting prin-
ciples consistently applied by the taxpayer. "Amount received"  for  the
purpose of the definition of gross receipt, as the term gross receipt is
used throughout this article, means the amount charged for the provision
of a telecommunication service.
  [(2)  (A)  Any  charge  for  a  service or property billed by or for a
mobile telecommunications customer's  home  service  provider  shall  be
deemed  to be provided by such mobile telecommunications customer's home
service provider.
  (B) Charges for mobile telecommunications service that are provided or
deemed to be provided by a  mobile  telecommunications  customer's  home
service  provider  shall be sourced to the taxing jurisdiction where the
mobile telecommunications customer's place of primary  use  is  located,
regardless  of  where  the mobile telecommunications service originates,
terminates or passes through.]
  [(h) For the purpose of applying the provisions  of  this  section  to
mobile  telecommunications  service,  the  following  terms when used in
relation to mobile telecommunications service shall be defined  as  such
terms are defined in section eleven hundred one of this chapter: "mobile
telecommunications service," "mobile telecommunications customer," "home
service  provider," "licensed service area," "reseller," "serving carri-
er," "place of primary use" and "taxing jurisdiction".]
  (a) [(1)] There is hereby imposed an excise tax on the sale  of  tele-
communication services[, except for the sale of mobile telecommunication
services  that  are  subject to tax under subparagraph two of this para-
graph, by any person which is a provider of telecommunication services,]
to be paid by such person, at the rate of  three  and  one-half  percent
prior  to  October  first, nineteen hundred ninety-eight, three and one-
quarter  percent  from  October  first,  nineteen  hundred  ninety-eight
through December thirty-first, nineteen hundred ninety-nine, and two and
one-half  percent  on  and  after  January  first, two thousand of gross
receipt from: (i) any intrastate telecommunication  services;  (ii)  any
interstate  and  international  telecommunication  services  (other than
interstate and international private telecommunication  services)  which
originate  or  terminate  in  this  state  and  which  telecommunication
services are charged to a service address in this state,  regardless  of
where  the  amounts  charged  for such services are billed or ultimately
paid; and (iii) interstate and international  private  telecommunication
services, the gross receipt to which the tax shall apply shall be deter-
mined as prescribed in subdivision three of this section.
  [(2) There is hereby imposed an excise tax on the sale of mobile tele-
communication  services, by any person which is a provider of telecommu-
nication services, to be paid by such person, at the  rate  of  two  and
nine-tenths  percent  on  and  after  May first, two thousand fifteen of

A. 9103                             3

gross receipts from any mobile telecommunications service provided by  a
home  service  provider  where  the mobile telecommunications customer's
place of primary use is within this state.]
  S 3. Paragraph (b) of subdivision 2 of section 186-e of the tax law is
amended by adding a new subparagraph 5 to read as follows:
  (5) MOBILE TELECOMMUNICATIONS EXCLUSION. THE SALE OF MOBILE TELECOMMU-
NICATION  SERVICE  SHALL  IN  NO  EVENT  CONSTITUTE A TELECOMMUNICATIONS
SERVICE, AND THE RECEIPTS FROM THE SALE OF SUCH SERVICE ARE WITHOUT  THE
SCOPE OF THE TAX IMPOSED BY THIS SECTION.
  S  4.  Paragraph (b) of subdivision 1 of section 186-c of the tax law,
as amended by section 1 of part P of chapter 59 of the laws of 2015,  is
amended to read as follows:
  (b)  [(1)]  In  addition  to the surcharge imposed by paragraph (a) of
this subdivision, there is hereby  imposed  a  surcharge  on  the  gross
receipts from telecommunication services[, except for the gross receipts
from  mobile  telecommunication  services  that are subject to tax under
subparagraph two of this paragraph,] relating to the metropolitan commu-
ter transportation district at the rate  of  seventeen  percent  of  the
state  tax  rate under section one hundred eighty-six-e of this article.
All the definitions and other provisions of section one hundred  eighty-
six-e  of  this  article shall apply to the tax imposed by this subpara-
graph with such modification and limitation as may be necessary (includ-
ing  substituting  the  words  "metropolitan   commuter   transportation
district"  for "state" where appropriate) in order to adapt the language
of such  section  one  hundred  eighty-six-e  of  this  article  to  the
surcharge imposed by this subparagraph within such metropolitan commuter
transportation district so as to include (i) any intra-district telecom-
munication  services, (ii) any inter-district telecommunication services
which originate or terminate in such  district  and  are  charged  to  a
service address therein regardless of where the amounts charged for such
services are billed or ultimately paid, and (iii) as apportioned to such
district, private telecommunication services. Provided however, such tax
surcharge  shall  be  calculated as if the tax imposed under section one
hundred eighty-six-e of this article were imposed at a rate of three and
one-half percent.
  [(2) In addition to the surcharge imposed by  paragraph  (a)  of  this
subdivision,  there  is hereby imposed a surcharge on the gross receipts
from mobile telecommunication  services  relating  to  the  metropolitan
commuter  transportation  district  at the rate of seven-tenths and two-
hundredths and one-thousandth percent on and after May first, two  thou-
sand  fifteen.  All  the definitions and other provisions of section one
hundred eighty-six-e of this article shall apply to the tax  imposed  by
this subparagraph with such modification and limitation as may be neces-
sary  (including substituting the words "metropolitan commuter transpor-
tation district" for "state" where appropriate) in order  to  adapt  the
language of such section one hundred eighty-six-e of this article to the
surcharge imposed by this subparagraph within such metropolitan commuter
transportation  district  so as to include any mobile telecommunications
service provided by a home service provider where the mobile  telecommu-
nications  customer's  place  of primary use is within such metropolitan
commuter transportation district.]
  S 5. This act shall take effect on the first  day  of  the  sales  tax
quarterly period, as described in subdivision (b) of section 1136 of the
tax  law,  beginning  at least ninety days after the date this act shall
have become a law and shall apply  in  accordance  with  the  applicable
transitional provisions of sections 1106 and 1217 of the tax law.

A. 9103                             4

                                 PART B

  Section  1.  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  IN
PARAGRAPH  FORTY-FOUR  OF  SUBDIVISION  (A)  OF  SECTION  ELEVEN HUNDRED
FIFTEEN OF THIS ARTICLE RELATING TO  MOBILE  TELECOMMUNICATION  SERVICES
SHALL  BE  APPLICABLE  PURSUANT  TO A LOCAL LAW, ORDINANCE OR RESOLUTION
ADOPTED BY A CITY SUBJECT TO THE PROVISIONS OF THIS SECTION.  SUCH  CITY
IS  EMPOWERED  TO  ADOPT OR REPEAL SUCH A LOCAL LAW, ORDINANCE OR RESOL-
UTION. SUCH ADOPTION OR REPEAL SHALL ALSO BE DEEMED TO AMEND  ANY  LOCAL
LAW,  ORDINANCE  OR  RESOLUTION  ENACTED  BY  SUCH A CITY IMPOSING TAXES
PURSUANT TO THE AUTHORITY OF SUBDIVISION (A) OF SECTION  TWELVE  HUNDRED
TEN OF THIS CHAPTER.
  S 2. Paragraph 1 of subdivision (a) of section 1210 of the tax law, as
amended  by  section  3  of part Z of chapter 59 of the laws of 2015, is
amended to read as follows:
  (1) Either, all of the taxes described in article twenty-eight of this
chapter, at the same uniform rate, as to which taxes all  provisions  of
the  local  laws, ordinances or resolutions imposing such taxes shall be
identical, except as to rate and except as otherwise provided, with  the
corresponding  provisions  in  such  article twenty-eight, including the
definition and exemption provisions of  such  article,  so  far  as  the
provisions  of  such  article twenty-eight can be made applicable to the
taxes imposed by such city or  county  and  with  such  limitations  and
special  provisions  as are set forth in this article. The taxes author-
ized under this subdivision may not be  imposed  by  a  city  or  county
unless  the  local law, ordinance or resolution imposes such taxes so as
to include all portions and all types of  receipts,  charges  or  rents,
subject  to  state  tax  under  sections  eleven hundred five and eleven
hundred ten of this chapter, except as otherwise provided. (i) Any local
law, ordinance or resolution enacted  by  any  city  of  less  than  one
million  or by any county or school district, imposing the taxes author-
ized by this subdivision, shall, notwithstanding any provision of law to
the contrary, exclude from the operation of such local taxes  all  sales
of  tangible  personal  property  for  use  or  consumption directly and
predominantly in the production  of  tangible  personal  property,  gas,
electricity,  refrigeration  or steam, for sale, by manufacturing, proc-
essing, generating, assembly, refining, mining or  extracting;  and  all
sales of tangible personal property for use or consumption predominantly
either  in  the  production  of tangible personal property, for sale, by
farming or in a commercial horse boarding operation, or  in  both;  and,
unless such city, county or school district elects otherwise, shall omit
the  provision  for credit or refund contained in clause six of subdivi-
sion (a) or subdivision (d) of section eleven hundred nineteen  of  this
chapter.  (ii)  Any  local  law,  ordinance or resolution enacted by any
city, county or school district, imposing the taxes authorized  by  this
subdivision,  shall  omit the residential solar energy systems equipment
and electricity exemption provided for in subdivision (ee), the  commer-
cial  solar  energy systems equipment and electricity exemption provided
for in subdivision (ii) and the clothing and footwear exemption provided
for in paragraph thirty of subdivision (a)  of  section  eleven  hundred
fifteen  of  this  chapter,  unless such city, county or school district
elects otherwise as to either  such  residential  solar  energy  systems
equipment  and  electricity  exemption,  such  commercial  solar  energy
systems equipment and electricity exemption or such clothing  and  foot-

A. 9103                             5

wear  exemption.   ANY LOCAL LAW, ORDINANCE OR RESOLUTION ENACTED BY ANY
CITY, COUNTY OR SCHOOL DISTRICT, IMPOSING THE TAXES AUTHORIZED  BY  THIS
SUBDIVISION,  SHALL OMIT THE MOBILE TELECOMMUNICATION SERVICES EXEMPTION
PROVIDED FOR IN PARAGRAPH FORTY-FOUR OF SUBDIVISION (A) OF SECTION ELEV-
EN  HUNDRED  FIFTEEN OF THIS CHAPTER, UNLESS SUCH CITY, COUNTY OR SCHOOL
DISTRICT ELECTS OTHERWISE; PROVIDED THAT IF SUCH A CITY HAVING  A  POPU-
LATION  OF ONE MILLION OR MORE ENACTS THE RESOLUTION DESCRIBED IN SUBDI-
VISION (P) 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  (P)
OF  THIS  SECTION OR AT THE TIME OF 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 RESOLUTION PURSUANT  TO  THE  AUTHORITY  OF
SUBDIVISION  (P)  OF THIS SECTION, SHALL BE FURTHER AMENDED, AS PROVIDED
IN SECTION TWELVE HUNDRED EIGHTEEN OF THIS SUBPART, SO THAT THE WIRELESS
TELECOMMUNICATIONS SERVICES EXEMPTION IN ANY SUCH LOCAL  LAW,  ORDINANCE
OR RESOLUTION OR IN SUCH SECTION ELEVEN HUNDRED SEVEN OF THIS CHAPTER IS
THE SAME AS THE MOBILE TELECOMMUNICATION SERVICES EXEMPTION IN PARAGRAPH
FORTY-FOUR  OF SUBDIVISION (A) OF SECTION ELEVEN HUNDRED FIFTEEN OF THIS
CHAPTER.
  S 3. Subdivision (d) of section 1210 of the tax  law,  as  amended  by
section  4-a  of part Z of chapter 59 of the laws of 2015, is amended to
read as follows:
  (d) A local law, ordinance or resolution imposing any tax pursuant  to
this  section,  increasing or decreasing the rate of such tax, repealing
or suspending such tax, exempting from such tax the energy  sources  and
services  described in paragraph three of subdivision (a) or of subdivi-
sion (b) of this section or changing the rate of  tax  imposed  on  such
energy  sources  and  services  or  providing  for  the credit or refund
described in clause six of subdivision (a)  of  section  eleven  hundred
nineteen  of  this  chapter,  or electing or repealing the exemption for
residential solar equipment  and  electricity  in  subdivision  (ee)  of
section  eleven  hundred  fifteen  of  this  [article]  CHAPTER,  or the
exemption for commercial solar equipment and electricity in  subdivision
(ii) of section eleven hundred fifteen of this [article] CHAPTER must go
into effect only on one of the following dates: March first, June first,
September first or December first; provided, that a local law, ordinance
or  resolution providing for the exemption described in paragraph thirty
of subdivision (a) of section eleven hundred fifteen of this chapter  or
repealing  any  such  exemption  or a local law, ordinance or resolution
providing for a refund or credit described in subdivision (d) of section
eleven hundred nineteen of this chapter or repealing such  provision  so
provided  must  go  into  effect only on March first; PROVIDED, FURTHER,
THAT A LOCAL LAW, ORDINANCE OR RESOLUTION PROVIDING  FOR  THE  EXEMPTION
DESCRIBED  IN  PARAGRAPH FORTY-FOUR OF SUBDIVISION (A) 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 (P) OF THIS SECTION PROVIDING  SUCH  EXEMPTION  OR  REPEALING  SUCH
EXEMPTION  SO  PROVIDED  MAY  GO INTO EFFECT IMMEDIATELY.  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 certi-
fied 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,

A. 9103                             6

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 4. Section 1210 of the tax law is amended by adding a  new  subdivi-
sion (p) to read as follows:
  (P)  NOTWITHSTANDING  ANY OTHER PROVISION OF STATE OR LOCAL LAW, ORDI-
NANCE OR RESOLUTION TO THE CONTRARY: (1) ANY 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, ACTING THROUGH ITS  LOCAL  LEGISLA-
TIVE  BODY,  IS  HEREBY AUTHORIZED AND EMPOWERED TO ELECT TO PROVIDE THE
EXEMPTION FROM SUCH TAXES FOR THE SAME  MOBILE  COMMUNICATIONS  SERVICES
EXEMPT  FROM  STATE  SALES AND COMPENSATING USE TAXES DESCRIBED IN PARA-
GRAPH FORTY-FOUR OF SUBDIVISION (A) OF SECTION ELEVEN HUNDRED FIFTEEN OF
THIS CHAPTER BY ENACTING A RESOLUTION IN THE FORM SET FORTH IN PARAGRAPH
TWO OF THIS SUBDIVISION; WHEREUPON, UPON COMPLIANCE WITH THE  PROVISIONS
OF  SUBDIVISIONS  (D)  AND  (E)  OF THIS SECTION, SUCH ENACTMENT OF SUCH
RESOLUTION SHALL BE DEEMED TO BE AN AMENDMENT  TO  SUCH  SECTION  ELEVEN
HUNDRED  SEVEN  AND SUCH SECTION ELEVEN HUNDRED SEVEN SHALL BE DEEMED TO
INCORPORATE SUCH EXEMPTION AS IF IT HAD BEEN DULY ENACTED BY  THE  STATE
LEGISLATURE AND APPROVED BY THE GOVERNOR.
  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  PURCHASES  OF  MOBILE TELECOMMUNICATIONS
SERVICES EXEMPT FROM STATE SALES AND COMPENSATING USE TAXES PURSUANT  TO
PARAGRAPH  FORTY-FOUR  OF  SUBDIVISION  (A)  OF  SECTION  ELEVEN HUNDRED
FIFTEEN 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, (INSERT THE DATE) AND
SHALL APPLY TO SALES MADE AND USES OCCURRING  ON  AND  AFTER  THAT  DATE
ALTHOUGH MADE OR OCCURRING UNDER A PRIOR CONTRACT.
  S  5. The commissioner of taxation and finance is hereby authorized to
implement the provisions of this act with respect to the elimination  of
the imposition of sales tax, additional taxes, and supplemental taxes on
wireless telecommunications services and all other taxes so addressed by
this act.
  S  6.  This  act  shall  take effect on the first day of the sales tax
quarterly period, as described in subdivision (b) of section 1136 of the
tax law, beginning at least ninety days after the date  this  act  shall
have  become  a  law  and  shall apply in accordance with the applicable
transitional provisions of sections 1106 and 1217 of the tax law.

                                 PART C

  Section 1. Subdivision 6 of section 186-f of the tax law is amended by
adding a new paragraph (h) to read as follows:
  (H) THE SUM OF FORTY MILLION DOLLARS ANNUALLY TO BE USED FOR GRANTS OR
REIMBURSEMENTS TO SCHOOL DISTRICTS DESIGNATED AS HIGH NEED  AND  AVERAGE

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NEED FOR THE COSTS RELATED TO THE HIRING OF SCHOOL RESOURCE OFFICERS, TO
BE  DISTRIBUTED  PURSUANT  TO  STANDARDS  AND  GUIDELINES  ISSUED BY THE
COMMISSIONER OF THE STATE EDUCATION DEPARTMENT.   FOR  THE  PURPOSES  OF
THIS  SECTION,  HIGH  NEED  AND  AVERAGE NEED SCHOOL DISTRICTS ARE THOSE
DISTRICTS DESIGNATED PURSUANT TO CLAUSE (C) OF SUBPARAGRAPH TWO OF PARA-
GRAPH C OF SUBDIVISION SIX OF SECTION  THIRTY-SIX  HUNDRED  TWO  OF  THE
EDUCATION LAW.
  S  2.  This  act  shall  take effect on the first day of the sales tax
quarterly period, as described in subdivision (b) of section 1136 of the
tax law, beginning at least ninety days after the date  this  act  shall
have  become  a  law  and  shall apply in accordance with the applicable
transitional provisions of sections 1106 and 1217 of the tax law.
  S 2. Severability. If any clause, sentence, paragraph, section or part
of this act shall be adjudged by any court of competent jurisdiction  to
be  invalid  and  after  exhaustion  of all further judicial review, the
judgment shall not affect, impair, or invalidate the remainder  thereof,
but  shall  be  confined in its operation to the clause, sentence, para-
graph, section or part of this act directly involved in the  controversy
in which the judgment shall have been rendered.
  S  3.  This  act shall take effect immediately provided, however, that
the applicable effective date of Parts A through C of this act shall  be
as specifically set forth in the last section of such Parts.