Legislation

Search OpenLegislation Statutes
This entry was published on 2021-04-23
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 1119
Subject to the conditions and limitations provided for herein, a refund or credit shall be allowed for a tax paid pursuant to subdivision...
Tax (TAX) CHAPTER 60, ARTICLE 28, PART 3
§ 1119. (a) Subject to the conditions and limitations provided for
herein, a refund or credit shall be allowed for a tax paid pursuant to
subdivision (a) of section eleven hundred five or section eleven hundred
ten (1) on the sale or use of tangible personal property if the
purchaser or user, in the performance of a contract, later incorporates
that tangible personal property into real property located outside this
state, (2) on the sale or use of tangible personal property purchased in
bulk, or any portion thereof, which is stored and not used by the
purchaser or user within this state if that property is subsequently
reshipped by such purchaser or user to a point outside this state for
use outside this state, (3) on the sale to or use by a contractor or
subcontractor of tangible personal property if that property is used by
him solely in the performance of a pre-existing lump sum or unit price
construction contract, (4) on the sale or use within this state of
tangible personal property, not purchased for resale, if the use of such
property in this state is restricted to fabricating such property
(including incorporating it into or assembling it with other tangible
personal property), processing, printing or imprinting such property and
such property is then shipped to a point outside this state for use
outside this state, or (6) on the sale of tangible personal property
purchased for use in constructing, expanding or rehabilitating
industrial or commercial real property (other than property used or to
be used exclusively by one or more registered vendors primarily engaged
in the retail sale of tangible personal property) located in an area
designated as an empire zone pursuant to article eighteen-B of the
general municipal law, but only to the extent that such property becomes
an integral component part of the real property. (For the purpose of
clause (3) of the preceding sentence, the term "pre-existing lump sum or
unit price construction contract" shall mean a contract for the
construction of improvements to real property under which the amount
payable to the contractor or subcontractor is fixed without regard to
the costs incurred by him in the performance thereof, and which (i) was
irrevocably entered into prior to the date of the enactment of this
article or the enactment of a law increasing the rate of tax imposed
under this article, or (ii) resulted from the acceptance by a
governmental agency of a bid accompanied by a bond or other performance
guaranty which was irrevocably submitted prior to such date.) Where the
tax on the sale or use of such tangible personal property has been paid
to the vendor, to qualify for such refund or credit, such tangible
personal property must be incorporated into real property as required in
clause (1) above, reshipped as required in clause (2) above, used in the
manner described in clauses (3), (4) and (6) above within three years
after the date such tax was payable to the tax commission by the vendor
pursuant to section eleven hundred thirty-seven. Where the tax on the
sale or use of such tangible personal property was paid by the applicant
for the credit or refund directly to the tax commission, to qualify for
such refund or credit, such tangible personal property must be
incorporated into real property as required in clause (1) above,
reshipped as required in clause (2) above, used in the manner described
in clauses (3), (4) and (6) above within three years after the date such
tax was payable to the tax commission by such applicant pursuant to this
article. An application for a refund or credit pursuant to this section
must be filed with such commission within the time provided by
subdivision (a) of section eleven hundred thirty-nine. Such application
shall be in such form as the tax commission may prescribe. Where an
application for credit has been filed, the applicant may immediately
take such credit on the return which is due coincident with or
immediately subsequent to the time that he files his application for
credit. However, the taking of the credit on the return shall be deemed
to be part of the application for credit and shall be subject to the
provisions in respect to applications for credit in section eleven
hundred thirty-nine as provided in subdivision (e) of such section. With
respect to a sale or use described in clause (3) above where a
pre-existing lump sum or unit price construction contract was
irrevocably entered into prior to the date of the enactment of this
article or the bid accompanied by the performance guaranty was
irrevocably submitted to the governmental agency prior to such date, the
purchaser or user shall be entitled to a refund or credit only of the
amount by which the tax on such sale or use imposed under this article
plus any tax imposed under the authority of article twenty-nine exceeds
the amount computed by applying against such sale or use the local rate
of tax, if any, in effect at the time such contract was entered into or
such bid was submitted.

In the case of the enactment of a law increasing the rate of tax
imposed by this article, the purchaser or user shall be entitled only to
a refund or credit of the amount by which the increased tax on such sale
or use imposed under this article plus any tax imposed under the
authority of article twenty-nine exceeds the amount computed by applying
against such sale or use the state and local rates of tax in effect at
the time such contract was entered into or such bid was submitted.

(b) Subject to the conditions and limitations provided for in this
subdivision, a refund or credit shall be allowed for a tax paid pursuant
to subdivision (a) and paragraph three of subdivision (c) of section
eleven hundred five, or section eleven hundred ten of this article and
any tax imposed pursuant to the authority of article twenty-nine of this
chapter on the sale to or use by an omnibus carrier described in this
subdivision of any omnibus, and of parts, equipment, lubricants, motor
fuel, diesel motor fuel, maintenance, servicing or repair purchased and
used in the operation of any such omnibus by such carrier or on the sale
to or use by a vessel operator described in this subdivision of a vessel
with a seating capacity of more than twenty passengers used for the
transportation on water of passengers for hire, and of parts, equipment,
lubricants, diesel motor fuel, maintenance, servicing or repair
purchased and used in the operation of any such vessel by such operator.
Any such omnibus carrier or vessel operator must provide local transit
service in this state and operate pursuant to a certificate of public
convenience and necessity issued by the commissioner of transportation
of this state or by a like officer or agency of the United States or
pursuant to the contract, franchise or consent between such carrier or
operator and a city having a population of more than one million
inhabitants, or any agency of such city. The amount of such refund or
credit shall be determined by first computing the local transit service
percentage which shall be the proportion that, in the case of such a
carrier, such carrier's vehicle mileage or, in the case of such an
operator, such operator's vessel hours in local transit service in this
state in the calendar year immediately preceding the end of the
quarterly return period, prescribed by section eleven hundred thirty-six
of this article, to which such refund or credit relates bears to such
carrier's total mileage operated in this state in such year or such
operator's total hours operated in this state in such year, as the case
may be. An omnibus carrier or vessel operator which was not engaged in
local transit service in the preceding calendar year shall determine
such percentage with respect to its first four quarterly returns filed
pursuant to section eleven hundred thirty-six of this article, by using
the proportion that such carrier's vehicle mileage or such operator's
vessel hours in local transit service in this state in the first three
months of such operation bears to such carrier's total mileage or such
operator's total hours operated in this state in such period. The amount
of the refund or credit allowable on the combined state and local tax
paid on such purchases or uses then shall be determined in accordance
with the following table:
If the local transit service The refund or credit is:

percentage is:
Less than 10 percent None
10 percent 10 percent of such combined tax
Greater than 10 percent but less 10 percent plus (the product of

than 70 percent 1.5 times each whole percent

in excess of 10 percent) of

such combined tax
70 percent or more 100 percent of such combined tax
For purposes of this subdivision, local transit service, vehicle
mileage, vessel hours, total mileage operated and total hours operated
shall be defined by rule or regulation of the commissioner and records
satisfactory to the commissioner shall be maintained by the carrier or
operator. An application for a refund or credit pursuant to this
subdivision must be filed with the commissioner within the time provided
by subdivision (a) of section eleven hundred thirty-nine of this
article. Such application shall be in such form as the commissioner may
prescribe. Where an application for credit has been filed, the applicant
may immediately take such credit on the return which is due coincident
with or immediately subsequent to the time that the applicant files the
application for credit. However, the taking of the credit on the return
shall be deemed to be part of the application for credit and shall be
subject to the provisions in respect to applications for credit in
section eleven hundred thirty-nine of this article as provided in
subdivision (e) of such section.

(c) A refund or credit equal to the amount of sales or compensating
use tax imposed by this article and pursuant to the authority of article
twenty-nine, and paid on the sale or use of tangible personal property,
shall be allowed the purchaser where such property is later used by the
purchaser in performing a service subject to tax under paragraph (1),
(2), (3), (5), (7) or (8) of subdivision (c) of section eleven hundred
five or under section eleven hundred ten and such property has become a
physical component part of the property upon which the service is
performed or has been transferred to the purchaser of the service in
conjunction with the performance of the service subject to tax or if a
contractor, subcontractor or repairman purchases tangible personal
property and later makes a retail sale of such tangible personal
property, the acquisition of which would not have been a sale at retail
to him but for the second to last sentence of subparagraph (i) of
paragraph (4) of subdivision (b) of section eleven hundred one. An
application for the refund or credit provided for herein must be filed
with the commissioner of taxation and finance within the time provided
by subdivision (a) of section eleven hundred thirty-nine. Such
application shall be in such form as the commissioner may prescribe.
Where an application for credit has been filed, the applicant may
immediately take such credit on the return which is due coincident with
or immediately subsequent to the time that he files his application for
credit. However, the taking of the credit on the return shall be deemed
to be part of the application for credit. The procedure for granting or
denying such applications for refund or credit and review of such
determinations shall be as provided in subdivision (e) of section eleven
hundred thirty-nine.

(d) (1) Subject to the conditions and limitations provided for in this
section, a refund or credit will be allowed for taxes imposed on the
retail sale of tangible personal property described in subdivision (a)
of section eleven hundred five of this article, and on every sale of
services described in subdivisions (b) and (c) of such section, and
consideration given or contracted to be given for, or for the use of,
such tangible personal property or services, where such tangible
personal property or services are sold to a qualified empire zone
enterprise or to a qualified entity that is also a tenant in or part of
a New York state innovation hot spot as provided in section thirty-eight
of this chapter or to a business located in a tax-free NY area approved
pursuant to article twenty-one of the economic development law, provided
that (A) such tangible personal property or tangible personal property
upon which such a service has been performed or such service (other than
a service described in subdivision (b) of section eleven hundred five of
this article) is directly and predominantly, or such a service described
in clause (A) or (D) of paragraph one of such subdivision (b) of section
eleven hundred five of this article is directly and exclusively, used or
consumed by (i) such qualified empire zone enterprise in an area
designated as an empire zone pursuant to article eighteen-B of the
general municipal law with respect to which such enterprise is certified
pursuant to such article eighteen-B, or (ii) such qualified entity at
its location in or as part of a New York state innovation hot spot, or
(iii) such business at its location in such tax-free NY area, or (B)
such a service described in clause (B) or (C) of paragraph one of
subdivision (b) of section eleven hundred five of this article is
delivered and billed to (i) such enterprise at an address in such empire
zone or (ii) such qualified entity at its location in or as part of the
New York state innovation hot spot, or (iii) such business at its
location in such tax-free NY area, or (C) the enterprise's place of
primary use of the service described in paragraph two of such
subdivision (b) of section eleven hundred five is at an address in such
empire zone or at its location in or as part of a New York state
innovation hot spot, or at its location in such tax-free NY area;
provided, further, that, in order for a motor vehicle, as defined in
subdivision (c) of section eleven hundred seventeen of this article, or
tangible personal property related to such a motor vehicle to be found
to be used predominantly in such a zone, at least fifty percent of such
motor vehicle's use shall be exclusively within such zone or at least
fifty percent of such motor vehicle's use shall be in activities
originating or terminating in such zone, or both; and either or both
such usages shall be computed either on the basis of mileage or hours of
use, at the discretion of such enterprise. For purposes of this
subdivision, tangible personal property related to such a motor vehicle
shall include a battery, diesel motor fuel, an engine, engine
components, motor fuel, a muffler, tires and similar tangible personal
property used in or on such a motor vehicle.

(2) Subject to the conditions and limitations provided for in this
section, a refund or credit will be allowed for taxes imposed on the
retail sale of, and consideration given or contracted to be given for,
or for the use of, tangible personal property sold to a contractor,
subcontractor or repairman for use in (A) erecting a structure or
building of a qualified empire zone enterprise or a business located in
a tax-free NY area approved pursuant to article twenty-one of the
economic development law, (B) adding to, altering or improving real
property, property or land of such an enterprise or such business, or
(C) maintaining, servicing or repairing real property, property or land
of such an enterprise or of such business, as the terms real property,
property or land are defined in the real property tax law; provided,
however, no credit or refund will be allowed under this paragraph unless
such tangible personal property is to become an integral component part
of such structure, building, real property, property or land located in
an area designated as an empire zone pursuant to article eighteen-B of
the general municipal law in, and with respect to which such enterprise
is certified pursuant to such article eighteen-B, or in an area approved
as a tax-free NY area pursuant to article twenty-one of the economic
development law where such business is located.

(3) Except as otherwise provided by law, the refund or credit provided
for in this subdivision will not apply to taxes imposed by paragraph ten
of subdivision (c) of section eleven hundred five and eleven hundred
seven of this article or to taxes imposed pursuant to the authority of
article twenty-nine of this chapter.

(4) In those instances when the provisions of subdivision (w) of
section nine hundred fifty-nine of the general municipal law are
applicable, no refund or credit will be allowed under this subdivision
unless the qualified empire zone enterprise has been issued an empire
zone retention certificate.

(5) A taxpayer may not apply for a credit or refund under this
subdivision more frequently than once a sales tax quarter, pursuant to
subdivision (b) of section eleven hundred thirty-six of this article.

(6) Any reference in this chapter or in any local law, ordinance or
resolution enacted pursuant to the authority of article twenty-nine of
this chapter to former subdivision (z) of section eleven hundred fifteen
of this article will be deemed to be a reference to this subdivision,
and any such local law, ordinance or resolution which provides the
exemptions described in former subdivision (z) of such section eleven
hundred fifteen shall be deemed instead to provide the refunds and
credits described in this subdivision.

(7) Notwithstanding any other provision in this article, article
twenty-nine of this chapter, or any other law to the contrary, a credit
or refund for any sale or use under this section shall not be allowed to
a person that is first certified under article eighteen-B of the general
municipal law on or after April first, two thousand nine, unless that
sale or use is eligible for a credit or refund of the county or city
sales and compensating use taxes imposed pursuant to the authority of
subpart b of part I of article twenty-nine of this chapter.

(e) Subject to conditions and limitations provided in this
subdivision, a room remarketer shall be allowed a refund or credit
against the amount of tax collected and required to be remitted under
section eleven hundred thirty-seven of this article in the amount of the
tax it paid to an operator of a hotel under section eleven hundred four
of this article, where applicable, and subdivision (e) of section eleven
hundred five of this article. Provided, however, that, in order to
qualify for a refund or credit under this subdivision for any sales tax
quarterly period, the room remarketer must, for that quarter, (1) be
registered for sales tax purposes under section eleven hundred
thirty-four of this article; (2) collect the taxes imposed by section
eleven hundred four of this article, where applicable, and subdivision
(e) of section eleven hundred five of this article; and (3) furnish the
certificate of authority number of the operator to whom the applicant
paid the tax in its application for refund or credit if required on that
form or upon request. Provided that if the room remarketer requests the
operator's certificate of authority number and is not provided with that
number, the room remarketer may satisfy this requirement by providing
the operator's name, business address, telephone number, and the address
of the hotel where the occupancy took place. An application for refund
or credit under this subdivision must be filed with the commissioner
within the time provided by subdivision (a) of section eleven hundred
thirty-nine of this article. The application must be in the form
prescribed by the commissioner. Where an application for credit has been
filed, the applicant may immediately take the credit on the return that
is due coincident with or immediately subsequent to the time that the
applicant files the application for credit. However, the taking of the
credit on the return is deemed to be part of the application for credit.
The procedure for granting or denying the applications for refund or
credit and review of those determinations shall be as provided in
subdivision (e) of section eleven hundred thirty-nine of this article.
An operator, including a room remarketer, who is paid tax by a room
remarketer must upon request provide the remarketer with its certificate
of authority number, provided that the operator's failure to do so does
not change the requirement set forth in paragraph three of this
subdivision.

* (f)(1) Subject to the conditions and limitations provided for in
this section, a refund will be allowed for tax paid pursuant to
subdivision (a) of section eleven hundred five, or section eleven
hundred ten of this article, on the purchase or use of tangible personal
property sold to a participant who has received a certificate of
eligibility in the economic transformation and facility redevelopment
program; provided that such tangible personal property has been used in
constructing, expanding or rehabilitating industrial or commercial real
property located in an area designated as an economic transformation
area pursuant to article eighteen of the economic development law, but
only to the extent that such tangible personal property becomes an
integral component part of such real property. Such tangible personal
property must be purchased, or contracted to be purchased, after the
participant receives its certificate of eligibility and before the
issuance of a certificate of occupancy and it must be used in a manner
consistent with the participant's application for such constructed,
expanded, or rehabilitated real property.

(2) Subject to the conditions and limitations provided for in this
section, a refund will be allowed for taxes imposed on receipts from the
retail sale of, and consideration given or contracted to be given for,
or for the use of, tangible personal property sold to a contractor,
subcontractor or repairman for use in (A) erecting a structure or
building of a participant who has received a certificate of eligibility,
or (B) adding to, altering or improving real property, property or land
of such a participant, as the terms real property, property or land are
defined in the real property tax law; provided, however, no refund will
be allowed under this paragraph unless such tangible personal property
has become an integral component part of such structure, building, real
property, property or land located within an economic transformation
area as defined by article eighteen of the economic development law in,
and with respect to which such participant has been issued a certificate
of eligibility pursuant to such article eighteen and only to the extent
that such property is used in a manner consistent with the participant's
application. Such tangible personal property must be in the contractor's
inventory on or after the day the participant receives its certificate
of eligibility, or be purchased or contracted to be purchased after the
participant receives its certificate of eligibility, but such property
must meet the conditions of the preceding sentence and be used before
the issuance of a certificate of occupancy for such constructed,
expanded, or rehabilitated real property.

(3) Notwithstanding any other provision of law, the refund provided
for in this subdivision shall not apply to the taxes imposed by section
eleven hundred seven or eleven hundred nine of this article or to any
tax imposed pursuant to the authority of article twenty-nine of this
chapter.

(4) Notwithstanding any other provision of law, where the tax on the
sale or use of such tangible personal property has been paid to the
vendor, to qualify for such refund, such tangible personal property must
be incorporated into real property and used as required in paragraphs
one and two of this subdivision within three years after the date such
tax was payable to the commissioner by the vendor pursuant to section
eleven hundred thirty-seven of this article. Where the tax on the sale
or use of such tangible personal property was paid by the applicant for
the refund directly to the commissioner, to qualify for such refund,
such tangible personal property must be incorporated into real property
and used in the manner described in paragraphs one and two of this
subdivision within three years after the date such tax was payable to
the commissioner by such applicant pursuant to this article. An
application for a refund pursuant to this section must be filed with the
commissioner within the time provided by subdivision (a) of section
eleven hundred thirty-nine of this article. Such application shall be in
such form as the commissioner may prescribe. This application will be
the only means of applying for the refund allowed by this section; the
applicant may not take this refund in any other manner, including the
taking of a credit on any return due pursuant to section eleven hundred
thirty-six of this article. A taxpayer may not apply for a refund under
this subdivision more frequently than once a sales tax quarterly period
as described in subdivision (b) of section eleven hundred thirty-six of
this article.

(5) The terms "participant", "economic transformation area", and
"certificate of eligibility" shall have the same meaning as those terms
have in section four hundred of the economic development law.

* NB Repealed December 31, 2026