S. 7438 2
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title. This act shall be known and may be cited as
the "Fossil Fuel Subsidy Elimination Act".
§ 2. Subdivisions 17, 18, 21, and 22 of section 352 of the economic
development law, as amended by section 1 of part K of chapter 59 of the
laws of 2017, subdivision 18 as separately amended by section 1 of part
ZZ of chapter 59 of the laws of 2017, are amended to read as follows:
17. "Qualified investment" means an investment in tangible property
(including a building or a structural component of a building) owned by
a business enterprise which:
(a) is depreciable pursuant to section one hundred sixty-seven of the
internal revenue code;
(b) has a useful life of four years or more;
(c) is acquired by purchase as defined in section one hundred seven-
ty-nine (d) of the internal revenue code;
(d) DOES NOT DIRECTLY PRODUCE, TRANSMIT, DISTRIBUTE, TRANSPORT, OR
STORE FOSSIL FUELS OR DIRECTLY UTILIZE FOSSIL FUELS FOR THE PRODUCTION
OF ON-SITE ENERGY, INCLUDING THERMAL ENERGY, FOR ANY PURPOSE. FOR THE
PURPOSES OF THIS ARTICLE, FOSSIL FUEL SHALL HAVE THE SAME DEFINITION AS
IN SECTION 1-103 OF THE ENERGY LAW;
(E) has a situs in this state; and
[(e)] (F) is placed in service in the state on or after the date the
certificate of eligibility is issued to the business enterprise.
18. "Regionally significant project" means (a) a manufacturer creating
at least ten net new jobs in the state and making significant capital
investment in the state; (b) a business creating at least ten net new
jobs in agriculture in the state and making significant capital invest-
ment in the state, (c) a financial services firm, distribution center,
or back office operation creating at least one hundred net new jobs in
the state and making significant capital investment in the state, (d) a
scientific research and development firm creating at least ten net new
jobs in the state, and making significant capital investment in the
state, (e) a life sciences company creating at least twenty net new jobs
in the state and making significant capital investment in the state or
(f) an entertainment company creating or obtaining at least two hundred
net new jobs in the state and making significant capital investment in
the state. Other businesses creating one hundred fifty or more net new
jobs in the state and making significant capital investment in the state
may be considered eligible as a regionally significant project by the
commissioner as well. A REGIONALLY SIGNIFICANT PROJECT SHALL NOT BE
ENGAGED IN THE PRODUCTION, TRANSMISSION, DISTRIBUTION, TRANSPORTATION,
STORAGE, SALE, PURCHASE, OR DELIVERY OF FOSSIL FUELS. The commissioner
shall promulgate regulations pursuant to section three hundred fifty-six
of this article to determine what additional criteria a business must
meet to be eligible as a regionally significant project, including, but
not limited to, whether a business exports a substantial portion of its
products or services outside of the state or outside of a metropolitan
statistical area or county within the state.
21. "Research and development expenditures" mean the expenses of the
business enterprise that are qualified research expenses under the
federal research and development credit under section forty-one of the
internal revenue code and are attributable to activities conducted in
the state. If the federal research and development credit has expired,
then the research and development expenditures shall be calculated as if
S. 7438 3
the federal research and development credit structure and definition in
effect in federal tax year two thousand nine were still in effect.
RESEARCH AND DEVELOPMENT EXPENDITURES DOES NOT INCLUDE ANY EXPENSES FOR
TANGIBLE PERSONAL PROPERTY THAT DIRECTLY PRODUCES, TRANSMITS, DISTRIB-
UTES, TRANSPORTS, OR STORES FOSSIL FUELS OR DIRECTLY UTILIZES FOSSIL
FUELS FOR THE PRODUCTION OF ON-SITE ENERGY, INCLUDING THERMAL ENERGY,
FOR ANY PURPOSE.
22. "Scientific research and development" means conducting research
and experimental development in the physical, engineering, and life
sciences, including but not limited to agriculture, electronics, envi-
ronmental, biology, botany, biotechnology, computers, chemistry, food,
fisheries, forests, geology, health, mathematics, medicine, oceanogra-
phy, pharmacy, physics, veterinary, and other allied subjects. For the
purposes of this article, scientific research and development does not
include medical or veterinary laboratory testing facilities, OR ANY
RESEARCH THAT CONTRIBUTES TO THE PRODUCTION, TRANSMISSION, DISTRIBUTION,
TRANSPORTATION, STORAGE, SALE, PURCHASE, OR DELIVERY OF FOSSIL FUELS.
§ 3. Subdivision 7 of section 355 of the economic development law, as
added by section 4 of part G of chapter 61 of the laws of 2011, is
amended to read as follows:
7. For availability of special excelsior jobs program rates governing
the provision of [gas or] electric service, see subdivision twelve-d of
section sixty-six of the public service law. Such special excelsior jobs
program rates may remain available to participants as defined in this
article for a period of up to ten years commencing in the first taxable
year that the participant receives a certificate of tax credit, or the
first taxable year listed on its preliminary schedule of benefits,
whichever is later. Provided however, if a participant is removed from
the excelsior jobs program pursuant to this article, the excelsior jobs
program rates may be denied.
§ 4. Subdivision 12-d of section 66 of the public service law, as
added by section 8 of part G of chapter 61 of the laws of 2011, is
amended to read as follows:
12-d. Notwithstanding any other provision of law, upon application of
[a gas or] AN electric corporation, the commission shall authorize such
corporation to charge a special excelsior jobs program rate equal to the
incremental cost of providing ELECTRIC service to participants in the
excelsior jobs program as defined in article seventeen of the economic
development law.
§ 5. Subdivision 2 of section 433 of the economic development law, as
added by section 1 of part A of chapter 68 of the laws of 2013, is
amended to read as follows:
2. The following types of businesses are prohibited from participating
in the START-UP NY program.
(a) retail and wholesale businesses;
(b) restaurants;
(c) real estate brokers;
(d) law firms;
(e) medical or dental practices;
(f) real estate management companies;
(g) hospitality;
(h) finance and financial services;
(i) businesses providing personal services;
(j) businesses providing business administrative or support services,
unless such business has received permission from the commissioner to
apply to participate in the START-UP NY program upon demonstration that
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the business would create no fewer than one hundred net new jobs in the
tax-free NY area;
(k) accounting firms;
(l) businesses providing utilities; [and]
(m) businesses engaged in the generation or distribution of electric-
ity, the distribution of natural gas, or the production of steam associ-
ated with the generation of electricity; AND
(N) BUSINESSES ENGAGED IN THE PRODUCTION, TRANSMISSION, DISTRIBUTION,
TRANSPORTATION, OR STORAGE OF FOSSIL FUELS AS DEFINED IN SECTION 1-103
OF THE ENERGY LAW.
§ 6. Subparagraph (i) of paragraph (b) of subdivision 1 of section
210-B of the tax law, as amended by section 2 of part P of chapter 59 of
the laws of 2017, is amended to read as follows:
(i) A credit shall be allowed under this subdivision with respect to
tangible personal property and other tangible property, including build-
ings and structural components of buildings, which are: depreciable
pursuant to section one hundred sixty-seven of the internal revenue
code, have a useful life of four years or more, are acquired by purchase
as defined in section one hundred seventy-nine (d) of the internal
revenue code, have a situs in this state and are (A) principally used by
the taxpayer in the production of goods by manufacturing, processing,
assembling, refining, mining, extracting, farming, agriculture, horti-
culture, floriculture, viticulture or commercial fishing, (B) industrial
waste treatment facilities or air pollution control facilities, used in
the taxpayer's trade or business, (C) research and development property,
or (D) principally used in the ordinary course of the taxpayer's trade
or business as a broker or dealer in connection with the purchase or
sale (which shall include but not be limited to the issuance, entering
into, assumption, offset, assignment, termination, or transfer) of
stocks, bonds or other securities as defined in section four hundred
seventy-five (c)(2) of the Internal Revenue Code, or of commodities as
defined in section four hundred seventy-five (e) of the Internal Revenue
Code, (E) principally used in the ordinary course of the taxpayer's
trade or business of providing investment advisory services for a regu-
lated investment company as defined in section eight hundred fifty-one
of the Internal Revenue Code, or lending, loan arrangement or loan orig-
ination services to customers in connection with the purchase or sale
(which shall include but not be limited to the issuance, entering into,
assumption, offset, assignment, termination, or transfer) of securities
as defined in section four hundred seventy-five (c)(2) of the Internal
Revenue Code, (F) principally used in the ordinary course of the taxpay-
er's business as an exchange registered as a national securities
exchange within the meaning of sections 3(a)(1) and 6(a) of the Securi-
ties Exchange Act of 1934 or a board of trade as defined in subparagraph
one of paragraph (a) of section fourteen hundred ten of the not-for-pro-
fit corporation law or as an entity that is wholly owned by one or more
such national securities exchanges or boards of trade and that provides
automation or technical services thereto, or (G) principally used as a
qualified film production facility including qualified film production
facilities having a situs in an empire zone designated as such pursuant
to article eighteen-B of the general municipal law, where the taxpayer
is providing three or more services to any qualified film production
company using the facility, including such services as a studio lighting
grid, lighting and grip equipment, multi-line phone service, broadband
information technology access, industrial scale electrical capacity,
food services, security services, and heating, ventilation and air
S. 7438 5
conditioning. For purposes of clauses (D), (E) and (F) of this subpara-
graph, property purchased by a taxpayer affiliated with a regulated
broker, dealer, registered investment advisor, national securities
exchange or board of trade, is allowed a credit under this subdivision
if the property is used by its affiliated regulated broker, dealer,
registered investment advisor, national securities exchange or board of
trade in accordance with this subdivision. For purposes of determining
if the property is principally used in qualifying uses, the uses by the
taxpayer described in clauses (D) and (E) of this subparagraph may be
aggregated. In addition, the uses by the taxpayer, its affiliated regu-
lated broker, dealer and registered investment advisor under either or
both of those clauses may be aggregated. Provided, however, a taxpayer
shall not be allowed the credit provided by clauses (D), (E) and (F) of
this subparagraph unless the property is first placed in service before
October first, two thousand fifteen and (i) eighty percent or more of
the employees performing the administrative and support functions
resulting from or related to the qualifying uses of such equipment are
located in this state or (ii) the average number of employees that
perform the administrative and support functions resulting from or
related to the qualifying uses of such equipment and are located in this
state during the taxable year for which the credit is claimed is equal
to or greater than ninety-five percent of the average number of employ-
ees that perform these functions and are located in this state during
the thirty-six months immediately preceding the year for which the cred-
it is claimed, or (iii) the number of employees located in this state
during the taxable year for which the credit is claimed is equal to or
greater than ninety percent of the number of employees located in this
state on December thirty-first, nineteen hundred ninety-eight or, if the
taxpayer was not a calendar year taxpayer in nineteen hundred ninety-
eight, the last day of its first taxable year ending after December
thirty-first, nineteen hundred ninety-eight. If the taxpayer becomes
subject to tax in this state after the taxable year beginning in nine-
teen hundred ninety-eight, then the taxpayer is not required to satisfy
the employment test provided in the preceding sentence of this subpara-
graph for its first taxable year. For purposes of clause (iii) of this
subparagraph the employment test will be based on the number of employ-
ees located in this state on the last day of the first taxable year the
taxpayer is subject to tax in this state. If the uses of the property
must be aggregated to determine whether the property is principally used
in qualifying uses, then either each affiliate using the property must
satisfy this employment test or this employment test must be satisfied
through the aggregation of the employees of the taxpayer, its affiliated
regulated broker, dealer, and registered investment adviser using the
property. For purposes of clause (A) of this subparagraph, tangible
personal property and other tangible property shall not include property
principally used by the taxpayer in the production or distribution of
electricity, natural gas after extraction from wells, steam, or water
delivered through pipes and mains. FOR PURPOSES OF THIS SUBDIVISION,
TANGIBLE PERSONAL PROPERTY AND OTHER TANGIBLE PROPERTY DOES NOT INCLUDE
PROPERTY THAT DIRECTLY PRODUCES, TRANSMITS, DISTRIBUTES, TRANSPORTS, OR
STORES FOSSIL FUELS AS DEFINED IN SECTION 1-103 OF THE ENERGY LAW, OR
DIRECTLY UTILIZES FOSSIL FUELS FOR THE PRODUCTION OF ON-SITE ENERGY,
INCLUDING THERMAL ENERGY, FOR ANY PURPOSE.
§ 7. Subdivision (m) of section 301-a of the tax law, as added by
section 20 of part K of chapter 61 of the laws of 2011, is amended to
read as follows:
S. 7438 6
(m) Special rate adjustment for certain vessels. Notwithstanding any
provision of this section to the contrary, the use of non-highway diesel
motor fuel in the engine of a vessel to propel such vessel shall be
subject to tax at the motor fuel and highway diesel motor fuel rate
provided for in this section, and shall be subject to the provisions of
section three hundred one-j of this article, including the adjustment
set forth in paragraph [four] THREE of subdivision (a) of such section
three hundred one-j. A credit or refund shall be available to the extent
tax paid on gallonage used to propel any such vessel exceeds the amount
of tax due based on the tax rate set forth herein. Provided, however,
that the commissioner shall require such documentary proof to qualify
for any credit or reimbursement provided hereunder as the commissioner
deems appropriate.
§ 8. Paragraph 3 of subdivision (f) and paragraph 4 of subdivision (g)
of section 301-a of the tax law are REPEALED.
§ 9. Subdivisions (a) and (d) of section 301-b of the tax law, subdi-
vision (a) as added by chapter 190 of the laws of 1990, paragraph 5 of
subdivision (a) as amended by section 3 of part E of chapter 59 of the
laws of 2012, paragraphs 6, 7 and 8 of subdivision (a) as added by
section 4 of part W-1 of chapter 109 of the laws of 2006, and subdivi-
sion (d) as amended by section 21 of part K of chapter 61 of the laws of
2011, are amended to read as follows:
(a) Products. (1) [Kerosene sold or used by a petroleum business which
is registered under article twelve-A of this chapter as a distributor of
diesel motor fuel so long as (i) such product has not been blended or
mixed with any other product constituting diesel motor fuel or motor
fuel or a residual petroleum product and (ii) such product is not used
by the petroleum business as fuel to operate a motor vehicle or sold by
such petroleum business to a consumer for use as fuel to operate a motor
vehicle.
(2) Kero-jet fuel (i) sold by a petroleum business which is registered
under article twelve-A of this chapter as a distributor of diesel motor
fuel to a consumer for use exclusively as jet aircraft fuel or to a
petroleum business registered under such article twelve-A as a "distrib-
utor of kero-jet fuel only" where such fixed base operator is engaged
solely in making or offering to make retail sales not in bulk of kero-
jet fuel directly into the fuel tank of an airplane for the purpose of
operating such airplane, (ii) used by a petroleum business, registered
under article twelve-A of this chapter as a distributor of diesel motor
fuel, exclusively as jet aircraft fuel, or (iii) sold at retail not in
bulk by a petroleum business registered under article twelve-A of this
chapter as a "distributor of kero-jet fuel only" where such fuel is
delivered directly into the fuel tank of a jet airplane for use in the
operation of such airplane.
(3)] Aviation gasoline, meeting the specifications set forth in Ameri-
can Standard Testing Material Specification D910 or Military Specifica-
tion MIL-G-5572, which is imported or caused to be imported into this
state by a petroleum business which is registered under article twelve-A
of this chapter as a distributor of motor fuel or produced, refined,
manufactured or compounded in this state by such a petroleum business.
[(4) Residual petroleum product sold by a petroleum business regis-
tered under this article as a residual petroleum product business if
such product is sold by such petroleum business to a consumer for use
exclusively as bunker fuel for vessels or if such product is used by
such petroleum business exclusively as bunker fuel in its own vessels.
(5) Liquefied petroleum gases, such as butane, ethane or propane.
S. 7438 7
(6)] (2) E85 imported or caused to be imported into this state or
produced, refined, manufactured or compounded in this state by a petro-
leum business registered under article twelve-A of this chapter, as a
distributor of motor fuel, and then sold by such petroleum business and
delivered to a filling station and placed in a storage tank of such
filling station for such E85 to be dispensed directly into a motor vehi-
cle for use in the operation of such vehicle.
[(7)] (i) Partial B20 exemption. B20 imported or caused to be imported
into this state or produced, refined, manufactured or compounded in this
state by a petroleum business registered under article twelve-A of this
chapter, as a distributor of diesel motor fuel, and then sold by such
petroleum business.
(ii) Calculation of partial exemption. The amount of the partial
exemption under this paragraph shall be determined by multiplying the
quantity of B20 times twenty percent of the applicable taxes otherwise
imposed by this article on such fuel.
[(8)] (3) CNG or hydrogen.
(d) Sales to consumers for heating purposes. [(1)] Total residential
heating exemption. Non-highway diesel motor fuel sold by a petroleum
business registered under article twelve-A of this chapter as a distrib-
utor of diesel motor fuel or residual petroleum product sold by a petro-
leum business registered under this article as a residual petroleum
product business to the consumer exclusively for residential heating
purposes only if such non-highway diesel motor fuel is delivered into a
storage tank which is not equipped with a hose or other apparatus by
which such fuel can be dispensed into the fuel tank of a motor vehicle
and such storage tank is attached to the heating unit burning such fuel.
[(2) Partial non-residential heating exemption. (A) Non-highway diesel
motor fuel sold by a petroleum business registered under article
twelve-A of this chapter as a distributor of diesel motor fuel or resi-
dual petroleum product sold by a petroleum business registered under
this article as a residual petroleum product business to the consumer
exclusively for heating, other than residential heating purposes only if
such non-highway diesel motor fuel is delivered into a storage tank
which is not equipped with a hose or other apparatus by which such fuel
can be dispensed into the fuel tank of a motor vehicle and such storage
tank is attached to the heating unit burning such fuel (B) Calculation
of partial exemption. The partial exemption under this paragraph shall
be determined by multiplying the quantity of non-highway diesel motor
fuel and residual petroleum product eligible for the exemption times the
sum of the then current rate of the supplemental tax imposed by section
three hundred one-j of this article and forty-six percent of the then
current rate of the tax imposed by section three hundred one-a of this
article, with respect to the specific non-highway diesel motor fuel or
residual petroleum product rate, as the case may be.]
§ 10. The opening paragraph and paragraph 1 of subdivision (c) of
section 301-b of the tax law, as added by chapter 190 of the laws of
1990, are amended to read as follows:
Sales to [New York state and] the federal government. (1) Motor fuel
imported or caused to be imported into this state or produced, refined,
manufactured or compounded in this state by a petroleum business regis-
tered under article twelve-A of this chapter, as a distributor of motor
fuel, and then sold by such petroleum business to an organization
described in paragraph [one or] two of subdivision (a) of section eleven
hundred sixteen of this chapter where such motor fuel is used by such
organization for its own use or consumption.
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§ 11. The opening paragraph and subdivisions (a) and (b) of section
301-c of the tax law, the opening paragraph as amended by section 5 of
part W-1 of chapter 109 of the laws of 2006, subdivision (a) as amended
by section 23 of part K of chapter 61 of the laws of 2011, and subdivi-
sion (b) as amended by chapter 330 of the laws of 1991, are amended to
read as follows:
A subsequent purchaser shall be eligible for reimbursement of tax with
respect to the following gallonage, subsequently sold by such purchaser
in accordance with subdivision (a), (b), (e), (h), [(j), (k), (n) or
(o)] (I), (K) OR (L) of this section or used by such purchaser in
accordance with subdivision (c), (d), (f), (g)[, (i), (l)] or [(m)] (J)
of this section, which gallonage has been included in the measure of the
tax imposed by this article on a petroleum business:
(a) [Non-highway Diesel motor fuel used for heating purposes. (1)]
Total residential heating reimbursement. Non-highway Diesel motor fuel
purchased in this state and sold by such purchaser to a consumer for use
exclusively for residential heating purposes but only where (i) such
non-highway diesel motor fuel is delivered into a storage tank which is
not equipped with a hose or other apparatus by which such non-highway
Diesel motor fuel can be dispensed into the fuel tank of a motor vehicle
and such storage tank is attached to the heating unit burning such non-
highway Diesel motor fuel, (ii) the tax imposed pursuant to this article
has been paid with respect to such non-highway diesel motor fuel and the
entire amount of such tax has been absorbed by such purchaser, and (iii)
such purchaser possesses documentary proof satisfactory to the commis-
sioner evidencing the absorption by it of the entire amount of the tax
imposed pursuant to this article. Provided, however, that the commis-
sioner is authorized, in the event that the commissioner determines that
it would not threaten the integrity of the administration and enforce-
ment of the tax imposed by this article, to provide a reimbursement with
respect to a retail sale to a consumer for residential heating purposes
of less than ten gallons of non-highway diesel motor fuel provided such
fuel is not dispensed into the tank of a motor vehicle.
[(2) Partial non-residential heating reimbursement. (A) Non-highway
Diesel motor fuel purchased in this state and sold by such purchaser to
a consumer for use exclusively for heating, other than for residential
heating purposes, but only where (i) such non-highway diesel motor fuel
is delivered into a storage tank which is not equipped with a hose or
other apparatus by which such non-highway Diesel motor fuel can be
dispensed into the fuel tank of a motor vehicle and such storage tank is
attached to the heating unit burning such non-highway Diesel motor fuel,
(ii) the tax imposed pursuant to this article has been paid with respect
to such non-highway diesel motor fuel and the entire amount of such tax
has been absorbed by such purchaser, and (iii) such purchaser possesses
documentary proof satisfactory to the commissioner evidencing the
absorption by it of the entire amount of the tax imposed pursuant to
this article.
(B) Calculation of partial reimbursement. Notwithstanding any other
provision of this article, the amount of the reimbursement under this
paragraph shall be determined by multiplying the quantity of non-highway
diesel motor fuel eligible for the reimbursement times the sum of the
then current rate of the supplemental tax imposed by section three
hundred one-j of this article and forty-six percent of the then current
rate of the tax imposed by section three hundred one-a of this article,
with respect to the non-highway diesel motor fuel rate, as the case may
be.]
S. 7438 9
(b) Sales to [New York state and] the federal government. Motor fuel
and diesel motor fuel purchased in this state and sold by such purchaser
in this state to an organization described in paragraph [one or] two of
subdivision (a) of section eleven hundred sixteen of this chapter where
(i) such motor fuel or diesel motor fuel is for such organization's own
use or consumption, (ii) the tax imposed pursuant to this article has
been paid with respect to such motor fuel or diesel motor fuel and the
entire amount of such tax has been absorbed by such purchaser and, (iii)
such purchaser possesses documentary proof satisfactory to the commis-
sioner of taxation and finance evidencing the absorption by it of the
entire amount of the tax imposed pursuant to this article. Provided,
however, that the commissioner [of taxation and finance] shall require
such documentary proof to qualify for any reimbursement of tax provided
by this section as the commissioner deems appropriate, including the
expansion of any certification required pursuant to section two hundred
eighty-five-a or two hundred eighty-five-b of this chapter to cover the
taxes imposed pursuant to this article.
§ 11-a. The opening paragraph of section 301-c of the tax law, as
amended by chapter 468 of the laws of 2000, is amended to read as
follows:
A subsequent purchaser shall be eligible for reimbursement of tax with
respect to the following gallonage, subsequently sold by such purchaser
in accordance with subdivision (a), (b), (e), (h)[, (j)] or [(k)] (I) of
this section or used by such purchaser in accordance with subdivision
(c), (d), (f), (g)[, (i), (l)] or [(m)] (J) of this section, which
gallonage has been included in the measure of the tax imposed by this
article on a petroleum business:
§ 12. Subdivisions (i), (j) and (l) of section 301-c of the tax law
are REPEALED.
§ 13. Subdivisions (k), (m), (n), (o) and (p) of section 301-c of the
tax law are relettered subdivisions (i), (j), (k), (l) and (m).
§ 14. Section 301-d of the tax law is REPEALED.
§ 15. Subdivision (f) of section 301-e is REPEALED.
§ 16. Subdivision (a) of section 301-j of the tax law, as amended by
chapter 309 of the laws of 1996, paragraphs 1, 2, 3 and 4 as amended by
section 29 of part K of chapter 61 of the laws of 2011, is amended to
read as follows:
(a) Imposition of tax. (1) In addition to the taxes imposed by
sections three hundred one-a and three hundred one-e of this article,
there is hereby imposed upon every petroleum business subject to tax
imposed under section three hundred one-a of this article and every
aviation fuel business subject to the aviation gasoline component of the
tax imposed under section three hundred one-e of this article, a supple-
mental monthly tax for each or any part of a taxable month at a rate of
six and eight-tenths cents per gallon with respect to the products
included in each component of the taxes imposed by such section three
hundred one-a and the aviation gasoline component of the tax imposed by
such section three hundred one-e of this article.
(2) [Provided, however, "commercial gallonage," as such term is
defined in subdivision (k) of section three hundred of this article,
shall be exempt from the measure of the tax imposed under this section.
(3)] Provided, further, "railroad diesel," as such term is defined in
subdivision (l) of section three hundred of this article, shall be
exempt from the measure of the tax imposed under this section.
[(4)] (3) Provided, further, a separate per gallon rate shall apply
with respect to highway diesel motor fuel. Such rate shall be determined
S. 7438 10
by taking the adjusted rate per gallon of tax imposed under paragraph
one of this subdivision as adjusted in accordance with paragraph [five]
FOUR of this subdivision and subtracting therefrom one and three-quar-
ters cents. Commencing January first, two thousand twelve, and each
January thereafter, the per gallon rate applicable to highway diesel
motor fuel shall be the adjusted rate under paragraph one of this subdi-
vision as adjusted in accordance with paragraph [five] FOUR of this
subdivision which commences on such date minus one and three-quarters
cents. The resulting rate under this paragraph shall be expressed in
hundredths of a cent.
[(5)] (4) Except as herein provided, the tax imposed under this
section shall be calculated in the same respective manner as the taxes
imposed by section three hundred one-a and section three hundred one-e
of this article. Except [for section three hundred one-d and except] as
otherwise provided in this section, all the provisions of this article
applicable to the taxes imposed by sections three hundred one-a and
three hundred one-e of this article, shall apply with respect to the
supplemental tax imposed by this section to the same extent as if it
were respectively imposed by such sections.
§ 17. Subparagraph (A) of paragraph 2 of subsection (a) of section 606
of the tax law, as amended by section 3 of part P of chapter 59 of the
laws of 2017, is amended to read as follows:
(A) A credit shall be allowed under this subsection with respect to
tangible personal property and other tangible property, including build-
ings and structural components of buildings, which are: depreciable
pursuant to section one hundred sixty-seven of the internal revenue
code, have a useful life of four years or more, are acquired by purchase
as defined in section one hundred seventy-nine (d) of the internal
revenue code, have a situs in this state and are (i) principally used by
the taxpayer in the production of goods by manufacturing, processing,
assembling, refining, mining, extracting, farming, agriculture, horti-
culture, floriculture, viticulture or commercial fishing, (ii) indus-
trial waste treatment facilities or air pollution control facilities,
used in the taxpayer's trade or business, (iii) research and development
property, (iv) principally used in the ordinary course of the taxpayer's
trade or business as a broker or dealer in connection with the purchase
or sale (which shall include but not be limited to the issuance, enter-
ing into, assumption, offset, assignment, termination, or transfer) of
stocks, bonds or other securities as defined in section four hundred
seventy-five (c)(2) of the Internal Revenue Code, or of commodities as
defined in section 475(e) of the Internal Revenue Code, (v) principally
used in the ordinary course of the taxpayer's trade or business of
providing investment advisory services for a regulated investment compa-
ny as defined in section eight hundred fifty-one of the Internal Revenue
Code, or lending, loan arrangement or loan origination services to
customers in connection with the purchase or sale (which shall include
but not be limited to the issuance, entering into, assumption, offset,
assignment, termination, or transfer) of securities as defined in
section four hundred seventy-five (c)(2) of the Internal Revenue Code,
or (vi) principally used as a qualified film production facility includ-
ing qualified film production facilities having a situs in an empire
zone designated as such pursuant to article eighteen-B of the general
municipal law, where the taxpayer is providing three or more services to
any qualified film production company using the facility, including such
services as a studio lighting grid, lighting and grip equipment, multi-
line phone service, broadband information technology access, industrial
S. 7438 11
scale electrical capacity, food services, security services, and heat-
ing, ventilation and air conditioning. For purposes of clauses (iv) and
(v) of this subparagraph, property purchased by a taxpayer affiliated
with a regulated broker, dealer, or registered investment adviser is
allowed a credit under this subsection if the property is used by its
affiliated regulated broker, dealer or registered investment adviser in
accordance with this subsection. For purposes of determining if the
property is principally used in qualifying uses, the uses by the taxpay-
er described in clauses (iv) and (v) of this subparagraph may be aggre-
gated. In addition, the uses by the taxpayer, its affiliated regulated
broker, dealer and registered investment adviser under either or both of
those clauses may be aggregated. Provided, however, a taxpayer shall not
be allowed the credit provided by clauses (iv) and (v) of this subpara-
graph unless (I) eighty percent or more of the employees performing the
administrative and support functions resulting from or related to the
qualifying uses of such equipment are located in this state, or (II) the
average number of employees that perform the administrative and support
functions resulting from or related to the qualifying uses of such
equipment and are located in this state during the taxable year for
which the credit is claimed is equal to or greater than ninety-five
percent of the average number of employees that perform these functions
and are located in this state during the thirty-six months immediately
preceding the year for which the credit is claimed, or (III) the number
of employees located in this state during the taxable year for which the
credit is claimed is equal to or greater than ninety percent of the
number of employees located in this state on December thirty-first,
nineteen hundred ninety-eight or, if the taxpayer was not a calendar
year taxpayer in nineteen hundred ninety-eight, the last day of its
first taxable year ending after December thirty-first, nineteen hundred
ninety-eight. If the taxpayer becomes subject to tax in this state after
the taxable year beginning in nineteen hundred ninety-eight, then the
taxpayer is not required to satisfy the employment test provided in the
preceding sentence of this subparagraph for its first taxable year. For
the purposes of clause (III) of this subparagraph the employment test
will be based on the number of employees located in this state on the
last day of the first taxable year the taxpayer is subject to tax in
this state. If the uses of the property must be aggregated to determine
whether the property is principally used in qualifying uses, then either
each affiliate using the property must satisfy this employment test or
this employment test must be satisfied through the aggregation of the
employees of the taxpayer, its affiliated regulated broker, dealer, and
registered investment adviser using the property. For purposes of clause
(i) of this subparagraph, tangible personal property and other tangible
property shall not include property principally used by the taxpayer in
the production or distribution of electricity, natural gas after
extraction from wells, steam, or water delivered through pipes and
mains. FOR PURPOSES OF THIS SUBSECTION, TANGIBLE PERSONAL PROPERTY AND
OTHER TANGIBLE PROPERTY DOES NOT INCLUDE PROPERTY THAT DIRECTLY PRODUC-
ES, TRANSMITS, DISTRIBUTES, TRANSPORTS, OR STORES FOSSIL FUELS AS
DEFINED IN SECTION 1-103 OF THE ENERGY LAW, OR DIRECTLY UTILIZES FOSSIL
FUELS FOR THE PRODUCTION OF ON-SITE ENERGY, INCLUDING THERMAL ENERGY,
FOR ANY PURPOSE.
§ 18. Paragraph 3 of subdivision (b) of section 21 of the tax law, as
amended by chapter 420 of the laws of 2006, clause (i) of subparagraph
(B) as amended by section 22 of part BB of chapter 56 of the laws of
2015, is amended to read as follows:
S. 7438 12
(3) Qualified tangible property. "Qualified tangible property" is
property described in either subparagraph (A) or (B) AND SUBPARAGRAPH
(C) of this paragraph which:
(A) (i) is depreciable pursuant to section one hundred sixty-seven of
the internal revenue code,
(ii) has a useful life of four years or more,
(iii) has been acquired by purchase as defined in section one hundred
seventy-nine (d) of the internal revenue code,
(iv) has a situs on a qualified site in this state, and
(v) is principally used by the taxpayer for industrial, commercial,
recreational or environmental conservation purposes (including the
commercial development of residential housing); or
(B) (i) is, or when occupied becomes, part of a dwelling whose primary
ownership structure is covered under either article nine-B of the real
property law or meets the requirements of section 216 (b)(1) of the
Internal Revenue Code or is part of an affordable housing project as
defined in subdivision twenty-nine of section 27-1405 of the environ-
mental conservation law, where units are sold as single family homes or
multiple family dwellings;
(ii) has been acquired by purchase (as defined in section one hundred
seventy-nine (d) of the Internal Revenue Code);
(iii) has a situs on a qualified site in this state; and
(iv) for purposes of this subparagraph only, and notwithstanding any
other section of law to the contrary, property qualifying under this
subparagraph shall be deemed to be qualified tangible property for the
purposes of paragraph one of subdivision (d) of this section; and in
addition, for the purposes of this subdivision only, property qualifying
under this subparagraph shall be deemed to have been placed in service
for the purposes of paragraph three of subdivision (a) of this section
when a certificate of occupancy is issued for such property; AND
(C) DOES NOT DIRECTLY PRODUCE, TRANSMIT, DISTRIBUTE, TRANSPORT, OR
STORE FOSSIL FUELS AS DEFINED IN SECTION 1-103 OF THE ENERGY LAW, OR
DIRECTLY UTILIZE FOSSIL FUELS FOR THE PRODUCTION OF ON-SITE ENERGY,
INCLUDING THERMAL ENERGY, FOR ANY PURPOSE.
§ 19. Subdivision 26 of section 210-B of the tax law is amended by
adding a new paragraph (g) to read as follows:
(G) FOR PURPOSES OF THIS SUBDIVISION, "QUALIFIED REHABILITATION
EXPENDITURES" DOES NOT INCLUDE EXPENDITURES FOR PROPERTY THAT DIRECTLY
PRODUCES, TRANSMITS, DISTRIBUTES, TRANSPORTS, OR STORES FOSSIL FUELS AS
DEFINED IN SECTION 1-103 OF THE ENERGY LAW, OR DIRECTLY UTILIZES FOSSIL
FUELS FOR THE PRODUCTION OF ON-SITE ENERGY, INCLUDING THERMAL ENERGY,
FOR ANY PURPOSE.
§ 20. Subparagraphs (ix) and (x) of paragraph 3 and paragraph 5 of
subdivision (c) of section 1105 of the tax law, subparagraph (ix) of
paragraph 3 as added by chapter 395 of the laws of 1998, subparagraph
(x) of paragraph 3 as added by section 1 of part FF of chapter 407 of
the laws of 1999, and paragraph 5 as amended by chapter 321 of the laws
of 2005, are amended to read as follows:
(ix) [such services rendered with respect to tangible property used or
consumed directly and predominantly in the production for sale of gas or
oil by manufacturing, processing, generating, assembling, refining,
mining, or extracting.
(x)] such services rendered with respect to property described in
paragraph twelve-a of subdivision (a) of section eleven hundred fifteen
of this article.
S. 7438 13
(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 para-
graph nine of subdivision (b) of section eleven hundred one of this
article, but excluding (i) services rendered by an individual who is 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, assembling,
refining, mining, or extracting, (iii)] services rendered with respect
to real property, property or land used or consumed predominantly either
in the production of tangible personal property, for sale, by farming or
in a commercial horse boarding operation, or in both and [(iv)] (III)
services of removal of waste material from a facility regulated as a
transfer station or construction and demolition debris processing facil-
ity by the department of environmental conservation, provided that the
waste material to be removed was not generated by the facility.
§ 21. Subparagraph (xi) of paragraph 3 of subdivision (c) of section
1105 of the tax law is REPEALED.
§ 22. Paragraph 9 of subdivision (a) of section 1115 of the tax law is
REPEALED.
§ 23. Paragraph (ii) of subdivision (b) of section 1115 of the tax
law, as amended by section 30 of part Y of chapter 63 of the laws of
2000, is amended to read as follows:
(ii) [Gas, electricity] ELECTRICITY, refrigeration and steam, and
[gas,] electric, refrigeration and steam service of whatever nature for
use or consumption directly and exclusively in research and development
in the experimental or laboratory sense shall be exempt from the tax
imposed under subdivision (b) of section eleven hundred five and the
compensating use tax imposed under section eleven hundred ten of this
article. Such research and development shall not be deemed to include
the ordinary testing or inspection of materials or products for quality
control, efficiency surveys, management studies, consumer surveys,
advertising, promotions or research in connection with literary, histor-
ical or similar projects.
§ 24. Paragraph 1 of subdivision (c) of section 1115 of the tax law,
as amended by section 7 of part B of chapter 63 of the laws of 2000, is
amended to read as follows:
(1) [Fuel, gas, electricity] ELECTRICITY, refrigeration and steam, and
[gas,] electric, refrigeration and steam service of whatever nature for
use or consumption directly and exclusively in the production of tangi-
ble personal property, [gas,] electricity, refrigeration or steam, for
sale, by manufacturing, processing, assembling, generating, refining,
mining or extracting shall be exempt from the taxes imposed under subdi-
visions (a) and (b) of section eleven hundred five and the compensating
use tax imposed under section eleven hundred ten of this article.
§ 25. Subdivision (j) of section 1115 of the tax law, as amended by
section 41 of part K of chapter 61 of the laws of 2011, is amended to
read as follows:
(j) The exemptions provided in this section shall not apply to the tax
required to be prepaid pursuant to the provisions of section eleven
hundred two of this article nor to the taxes imposed by sections eleven
hundred five and eleven hundred ten of this article with respect to
receipts from sales and uses of motor fuel or diesel motor fuel,[ except
S. 7438 14
that the exemptions provided in paragraphs nine and forty-two of subdi-
vision (a) of this section shall apply to the tax required to be prepaid
pursuant to the provisions of section eleven hundred two of this article
and to the taxes imposed by sections eleven hundred five and eleven
hundred ten of this article with respect to sales and uses of kero-jet
fuel,] CNG, hydrogen and E85, provided, however, the exemption allowed
for E85 shall be subject to the additional requirements provided in
section eleven hundred two of this article with respect to E85. The
exemption provided in subdivision (c) of this section shall apply to
sales and uses of non-highway diesel motor fuel but only if all of such
fuel is consumed other than on the public highways of this state. The
exemption provided in subdivision (c) of this section shall apply to
sales and uses of non-highway diesel motor fuel for use or consumption
either in the production for sale of tangible personal property by farm-
ing or in a commercial horse boarding operation, or in both but only if
all of such fuel is consumed other than on the public highways of this
state (except for the use of the public highways to reach adjacent farm-
lands or adjacent lands used in a commercial horse boarding operation,
or both).
§ 25-a. Subdivision (j) of section 1115 of the tax law, as amended by
section 41-a of part K of chapter 61 of the laws of 2011, is amended to
read as follows:
(j) The exemptions provided in this section shall not apply to the tax
required to be prepaid pursuant to the provisions of section eleven
hundred two of this article nor to the taxes imposed by sections eleven
hundred five and eleven hundred ten of this article with respect to
receipts from sales and uses of motor fuel or diesel motor fuel[, except
that the exemption provided in paragraph nine of subdivision (a) of this
section shall apply to the tax required to be prepaid pursuant to the
provisions of section eleven hundred two of this article and to the
taxes imposed by sections eleven hundred five and eleven hundred ten of
this article with respect to sales and uses of kero-jet fuel]. The
exemption provided in subdivision (c) of this section shall apply to
sales and uses of non-highway diesel motor fuel but only if all of such
fuel is consumed other than on the public highways of this state. The
exemption provided in subdivision (c) of this section shall apply to
sales and uses of non-highway diesel motor fuel for use or consumption
either in the production for sale of tangible personal property by farm-
ing or in a commercial horse boarding operation, or in both but only if
all of such fuel is consumed other than on the public highways of this
state (except for the use of the public highways to reach adjacent farm-
lands or adjacent lands used in a commercial horse boarding operation,
or both).
§ 26. Subdivision (s) of section 1115 of the tax law, as added by
chapter 201 of the laws of 1995, is relettered subdivision (p).
§ 27. Subdivision (w) of section 1115 of the tax law, as added by
section 32 of part Y of chapter 63 of the laws of 2000, is amended to
read as follows:
(w) Receipts from the sale of [gas or] electricity or [gas or] elec-
tric service of whatever nature and consideration given or contracted to
be given for, or for the use of, [gas or] electricity or [gas or] elec-
tric service of whatever nature purchased for use or consumption direct-
ly and exclusively to provide [gas or] electric service of whatever
nature consisting of operating [a gas pipeline or gas distribution line
or] an electric transmission or distribution line [and ensuring the
necessary working pressure in an underground gas storage facility] shall
S. 7438 15
be exempt from sales and compensating use taxes imposed by this article.
Such exempt [gas or] electricity or [gas or] electric service of whatev-
er nature shall include, but shall not be limited to, such [gas or]
electricity or [gas or] electric service of whatever nature used or
consumed directly and exclusively to (1) [ensure necessary working pres-
sure in a gas pipeline used to transport, transmit or distribute gas,
(2) operate compressors used to transport, transmit or distribute gas
through such a gas pipeline or distribution line or used to ensure
necessary working pressure in such a storage facility, (3) operate heat-
ers to prevent gas in such a pipeline or distribution line from freez-
ing, (4) operate equipment which removes impurities and moisture from
gas in such a pipeline or distribution line, (5)] operate substations
and equipment related to electric transmission and distribution lines
such as transformers, capacitors, meters, switches, communication
devices and heating and cooling equipment, and [(6)] (2) ensure the
reliability of electricity or electric service transmitted or distrib-
uted through such lines, for example, by operating reserve capacity
machinery and equipment.
§ 28. Subdivision (k) of section 300 of the tax law, as amended by
section 17 of part K of chapter 61 of the laws of 2011, is amended to
read as follows:
(k) "Commercial gallonage" means gallonage (1) which is non-highway
diesel motor fuel or residual petroleum product, (2) [which is included
in the full measure of the non-highway diesel motor fuel component or
the residual petroleum product component of the tax imposed under
section three hundred one-a of this article, (3)] which does not (and
will not) qualify (A) [for the utility credit or reimbursement provided
for in section three hundred one-d of this article, (B)] as "manufactur-
ing gallonage", as such term is defined in subdivision (m) of this
section, [(C)] OR (B) for the not-for-profit organization exemption
provided for in subdivision (h) of section three hundred one-b of this
article, [or (D) for the heating exemption provided for in paragraph two
of subdivision (d) of section three hundred one-b of this article or the
heating reimbursement provided for in paragraph two of subdivision (a)
of section three hundred one-c of this article,] and [(4)] (3) which
will not be used nor has been used in the fuel tank connecting with the
engine of a vessel. No gallonage shall qualify as "commercial gallonage"
where such gallonage is eligible for the [(i) utility credit or
reimbursement under such section three hundred one-d of this article,
(ii) "manufacturing exemption" under paragraph three of subdivision (f)
of section three hundred one-a of this article, (iii)] not-for-profit
organization exemption under subdivision (h) of section three hundred
one-b of this article[, or (iv) heating exemption provided for in para-
graph two of subdivision (d) of section three hundred one-b of this
article or the heating reimbursement provided for in paragraph two of
subdivision (a) of section three hundred one-c of this article]. The
commissioner shall require such documentary proof to substantiate the
classification of product as "commercial gallonage" as the commissioner
deems appropriate.
§ 29. Paragraph 1 of subdivision (f) of section 301-b of the tax law,
as amended by section 21 of part K of chapter 61 of the laws of 2011, is
amended to read as follows:
(1) Residual petroleum product and non-highway diesel motor fuel sold
to an electric corporation, [as described in subdivision (a) of section
three hundred one-d of this article,] AS DEFINED IN SUBDIVISION THIRTEEN
OF SECTION TWO OF THE PUBLIC SERVICE LAW, SUBJECT TO THE SUPERVISION OF
S. 7438 16
THE DEPARTMENT OF PUBLIC SERVICE, which is registered with the depart-
ment as a petroleum business tax direct pay permittee, and used by such
electric corporation to fuel generators for the purpose of manufacturing
or producing electricity where such electric corporation provides a copy
of a direct pay permit authorized and issued by the commissioner, to the
petroleum business making such sale. If so registered, such corporation
shall be a taxpayer under this article and (i) such electric corporation
shall file a return monthly and pay the applicable tax under this arti-
cle, after the application of allowable credits, on all such purchases
directly to the commissioner, (ii) such electric corporation shall be
subject to all of the provisions of this article relating to the respon-
sibilities and liabilities of taxpayers under this article with respect
to such residual petroleum product and non-highway diesel motor fuel.
§ 30. Subdivision (y) of section 1511 of the tax law, as added by
chapter 472 of the laws of 2010, is amended by adding a new paragraph 7
to read as follows:
(7) FOR PURPOSES OF THIS SUBSECTION, "QUALIFIED REHABILITATION EXPEND-
ITURES" DOES NOT INCLUDE EXPENDITURES FOR PROPERTY THAT DIRECTLY PRODUC-
ES, TRANSMITS, DISTRIBUTES, TRANSPORTS, OR STORES FOSSIL FUELS AS
DEFINED IN SECTION 1-103 OF THE ENERGY LAW, OR DIRECTLY UTILIZES FOSSIL
FUELS FOR THE PRODUCTION OF ON-SITE ENERGY, INCLUDING THERMAL ENERGY,
FOR ANY PURPOSE.
§ 31. Paragraph (c) of subdivision 1 of section 3102-e of the public
authorities law, as added by section 31 of part A of chapter 56 of the
laws of 1998, is amended to read as follows:
(c) "Qualified emerging technology company" shall mean a company
located in New York state: (1) whose primary products or services are
classified as emerging technologies and whose total annual product sales
are ten million dollars or less; or (2) a company which has research and
development activities in New York state and whose ratio of research and
development funds to net sales equals or exceeds the average ratio for
all surveyed companies classified as determined by the National Science
Foundation in the most recent published results from its Survey of
Industry Research and Development, or any comparable successor survey as
determined by the department, and whose total annual product sales are
ten million dollars or less. QUALIFIED EMERGING TECHNOLOGY COMPANY SHALL
NOT INCLUDE A COMPANY ENGAGED IN THE PRODUCTION, TRANSMISSION, DISTRIB-
UTION, TRANSPORTATION, OR STORAGE OF FOSSIL FUELS AS DEFINED IN SECTION
1-103 OF THE ENERGY LAW.
The definition of "research and development funds" shall be the same
as that used by the National Science Foundation in the aforementioned
survey.
§ 32. Subparagraph (vi) of paragraph (a) of subdivision 1 of section
210 of the tax law, as amended by section 1 of part D of chapter 59 of
the laws of 2019, is amended to read as follows:
(vi) for taxable years beginning on or after January first, two thou-
sand fourteen, the amount prescribed by this paragraph for a taxpayer
that is a qualified New York manufacturer, shall be computed at the rate
of zero percent of the taxpayer's business income base. The term
"manufacturer" shall mean a taxpayer that 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 gener-
ation of electricity, AND THE PRODUCTION, TRANSMISSION, DISTRIBUTION,
S. 7438 17
TRANSPORTATION, OR STORAGE OF FOSSIL FUELS AS DEFINED IN SECTION 1-103
OF THE ENERGY LAW shall not be qualifying activities for a manufacturer
under this subparagraph. Moreover, in the case of a combined report, the
combined group shall be considered a "manufacturer" for purposes of this
subparagraph only if the combined group during the taxable year is prin-
cipally engaged in the activities set forth in this paragraph, or any
combination thereof. A taxpayer or, in the case of a combined report, 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 one of section two
hundred ten-B of this article and either (I) the adjusted basis of such
property for New York state 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. A taxpayer or, in the case of
a combined report, a combined group, that does not satisfy the princi-
pally engaged test may be a qualified New York manufacturer if the
taxpayer or the combined group employs during the taxable year at least
two thousand five hundred employees in manufacturing in New York and the
taxpayer or the combined group has property in the state used in manu-
facturing, the adjusted basis of which for New York state tax purposes
at the close of the taxable year is at least one hundred million
dollars.
§ 33. Subparagraph 2 of paragraph (b) of subdivision 1 of section 210
of the tax law, as amended by section 2 of part D of chapter 59 of the
laws of 2019, is amended to read as follows:
(2) For purposes of subparagraph one of this paragraph, the term
"manufacturer" shall mean a taxpayer that 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; PROVIDED,
HOWEVER, THE PRODUCTION, TRANSMISSION, DISTRIBUTION, TRANSPORTATION, OR
STORAGE OF FOSSIL FUELS AS DEFINED IN SECTION 1-103 OF THE ENERGY LAW
SHALL NOT BE QUALIFYING ACTIVITIES FOR A MANUFACTURER UNDER THIS SUBPAR-
AGRAPH. Moreover, for purposes of computing the capital base in a
combined report, the combined group shall be considered a "manufacturer"
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, in the case of
a combined report, 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, respec-
tively, are derived from receipts from the sale of goods produced by
such activities. In computing a combined group's gross receipts, inter-
corporate receipts shall be eliminated. A "qualified New York manufac-
turer" is a manufacturer that has property in New York that is described
in clause (A) of subparagraph (i) of paragraph (b) of subdivision one of
section two hundred ten-B of this article and either (i) the adjusted
basis of that property for New York state 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
S. 7438 18
emerging technology company under paragraph (c) of subdivision one of
section thirty-one hundred two-e of the public authorities law regard-
less of the ten million dollar limitation expressed in subparagraph one
of such paragraph. A taxpayer or, in the case of a combined report, a
combined group, that does not satisfy the principally engaged test may
be a qualified New York manufacturer if the taxpayer or the combined
group employs during the taxable year at least two thousand five hundred
employees in manufacturing in New York and the taxpayer or the combined
group has property in the state used in manufacturing, the adjusted
basis of which for New York state tax purposes at the close of the taxa-
ble year is at least one hundred million dollars.
§ 34. This act shall take effect immediately and shall apply to taxa-
ble years commencing on or after the first of January next succeeding
the date on which it shall have become a law; provided, however, that:
(a) the amendments to paragraphs 6, 7 and 8 of subdivision (a) of
section 301-b made by section nine of this act shall not affect the
repeal of such paragraphs and shall be deemed repealed therewith;
(b) the amendments to the opening paragraph of section 301-c of the
tax law made by section eleven of this act shall be subject to the expi-
ration and reversion of such paragraph pursuant to section 19 of part
W-1 of chapter 109 of the laws of 2006, as amended, when upon such date
the provisions of section eleven-a of this act shall take effect;
(c) the amendments to subdivisions (k) and (l) of section 301-c made
by section thirteen of this act shall not affect the repeal of such
subdivisions and shall be deemed repealed therewith; and
(d) the amendments to subdivision (j) of section 1115 of the tax law
made by section twenty-five of this act shall be subject to the expira-
tion and reversion of such subdivision pursuant to section 19 of part
W-1 of chapter 109 of the laws of 2006, as amended, when upon such date
the provisions of section twenty-five-a of this act shall take effect.