STATE OF NEW YORK
________________________________________________________________________
4730
2009-2010 Regular Sessions
IN ASSEMBLY
February 5, 2009
___________
Introduced by M. of A. THIELE, KOLB, WALKER, ALFANO -- Multi-Sponsored
by -- M. of A. BARRA, CALHOUN, GIGLIO, SPANO -- read once and referred
to the Committee on Ways and Means
AN ACT to amend the tax law, in relation to providing a sales and
compensating use tax exemption on Energy Star appliances
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision (a) of section 1115 of the tax law is amended
2 by adding a new paragraph 44 to read as follows:
3 (44) Alternative energy systems and tangible personal property used in
4 or on habitable residential and non-residential structures for the
5 purpose of improving the energy efficiency of such structures. For
6 purposes of this subdivision: (i) alternative energy systems shall
7 include systems which do not rely on petroleum products or natural gas
8 as their energy source or fuel cell electric generating equipment as
9 described in paragraph two of subsection (g-2) of section six hundred
10 six of this chapter; and (ii) tangible personal property shall include
11 roof products, windows, doors and skylights approved by the Energy Star
12 program and products, such as insulation and weatherstripping, that
13 improve the energy efficiency of residential and non-residential heating
14 and cooling systems.
15 § 2. The New York State Energy Research and Development Authority, in
16 consultation with manufacturers, retailers, and public interest groups,
17 shall develop public information programs and materials to identify and
18 encourage the sales of products eligible for the tax incentives provided
19 under paragraph 44 of subdivision (a) of section 1115 of the tax law.
20 § 3. Subdivision (b) of section 1101 of the tax law is amended by
21 adding a new paragraph 33 to read as follows:
22 (33) New Energy Star appliance. A residential refrigerator, combina-
23 tion residential refrigerator/freezer, residential freezer, residential
24 clothes washer and residential clothes dryer (including a combination
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03998-01-9
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1 washer/dryer), residential light fixture which uses exclusively a pin-
2 based compact fluorescent bulb, non-commercial ceiling fan with or
3 without a light, non-commercial ceiling fan light kit, non-commercial
4 dishwasher, room or central air conditioner, non-commercial furnace,
5 non-commercial boiler and non-commercial hot water heater, non-commer-
6 cial dehumidifier, non-commercial air-source and geothermal heat pump,
7 non-commercial home sealing, non-commercial programmable thermostat and
8 non-commercial room air cleaner which is sold for the first time at
9 retail, provided such appliance qualifies for, and is labeled with, an
10 Energy Star label by the manufacturer, pursuant to an agreement among
11 the manufacturer, the United States environmental protection agency and
12 the United States department of energy.
13 § 4. Subdivision (a) of section 1115 of the tax law is amended by
14 adding a new paragraph 45 to read as follows:
15 (45) During the first week of each sales tax quarter, new Energy Star
16 appliances.
17 § 5. Clause 9 of subdivision (b) of section 1107 of the tax law, as
18 amended by section 78 of part A of chapter 56 of the laws of 1998, is
19 amended to read as follows:
20 (9) Except as otherwise provided by law, the [exemption] exemptions
21 provided for in paragraph thirty of subdivision (a) of section eleven
22 hundred fifteen relating to clothing and footwear and paragraph forty-
23 five of subdivision (a) of section eleven hundred fifteen relating to
24 new Energy Star appliances shall not apply.
25 § 6. Subdivision (f) of section 1109 of the tax law, as added by
26 section 118-a of part A of chapter 389 of the laws of 1997, is amended
27 to read as follows:
28 (f) The [exemption] exemptions contained in [paragraph] paragraphs
29 thirty and forty-five of subdivision (a) of section eleven hundred
30 fifteen of this article shall not apply.
31 § 7. Section 1109 of the tax law is amended by adding a new subdivi-
32 sion (i) to read as follows:
33 (i) Notwithstanding any other provision of state or local law, ordi-
34 nance or resolution to the contrary: (1) In the event that a county,
35 city or school district located in the metropolitan commuter transporta-
36 tion district imposes taxes pursuant to the authority of subpart B of
37 part I of article twenty-nine of this chapter and elects to provide the
38 new Energy Star appliances exemption authorized in paragraph one of
39 subdivision (a) of section twelve hundred ten of this chapter, or a city
40 located in such district in which the taxes provided for in section
41 eleven hundred seven of this part are in effect elects to provide such
42 new Energy Star appliances exemption from such taxes pursuant to the
43 authority of subdivision (p) of such section twelve hundred ten or of
44 section eleven of the chapter of the laws of two thousand nine which
45 added this subdivision, or the taxes provided for in section eleven
46 hundred eight of this article are in effect in a city located in such
47 district, the exemption provided by paragraph forty-five of subdivision
48 (a) of section eleven hundred fifteen of this article shall be applica-
49 ble in such portion of the metropolitan commuter transportation district
50 in which such county, city or school district is located. The commis-
51 sioner shall determine and certify to the comptroller the amount of
52 revenue forgone at the rate of one-quarter of one percent under this
53 section in such county, city or school district on account of sales of
54 new Energy Star appliances in such county, city or school district.
55 (2) Commencing with the sales tax quarterly period which commences on
56 March first, two thousand ten, the commissioner shall make such determi-
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1 nations and certifications on the twelfth day of the month following the
2 month in which sales tax quarterly returns are due under section eleven
3 hundred thirty-six of this article with respect to such quarterly period
4 for as long as such new Energy Star appliances exemptions from such
5 taxes imposed pursuant to the authority of article twenty-nine of this
6 chapter or by section eleven hundred seven or eleven hundred eight of
7 this part are in effect. Neither the commissioner nor the comptroller
8 shall be held liable for any inaccuracy in such determinations and
9 certifications. Such determinations and certifications may be based on
10 such information as may be available to the commissioner at the time
11 such determinations and certifications shall be made under this subdivi-
12 sion and may be estimated on the basis of percentages or other indices
13 calculated from distributions from prior periods. The commissioner shall
14 be authorized to require such information as the commissioner deems
15 necessary to comply with the requirements of this subdivision from
16 persons required to file returns under such section eleven hundred thir-
17 ty-six of this article.
18 (3) By the fifteenth day of the month in which the commissioner has
19 made the certifications to the comptroller described in paragraph two of
20 this subdivision, the comptroller shall bill any county, city or school
21 district in such metropolitan commuter transportation district which
22 provides such new Energy Star appliances exemption, and any city in such
23 district in which the taxes imposed by section eleven hundred seven of
24 this part are in effect which has elected to provide such new Energy
25 Star appliances exemption, and any city in such district in which the
26 taxes imposed by section eleven hundred eight of this part are in
27 effect, an amount equal to one-half of the amount certified to the comp-
28 troller by the commissioner in respect of such county, city or school
29 district; and such county, city or school district shall pay the amount
30 of such bill to the comptroller by the twenty-fifth day of such month.
31 The comptroller shall deposit any such amounts received in the mass
32 transportation operating assistance fund established by section eighty-
33 eight-a of the state finance law to the credit of the metropolitan mass
34 transportation operating assistance account therein.
35 (4) In the event that a county, city or school district imposing tax
36 pursuant to the authority of subpart B of part I of article twenty-nine
37 of this chapter does not pay in full a bill described in paragraph three
38 of this subdivision by the twenty-fifth day of the month described in
39 paragraphs two and three of this subdivision, the comptroller shall
40 deduct any amount not paid from the amount of the next payment or
41 payments due such county, city or school district pursuant to subdivi-
42 sion (c) of section twelve hundred sixty-one of this chapter until such
43 amount not paid has been recovered. The comptroller shall deposit the
44 amounts so deducted and recovered in the mass transportation operating
45 assistance fund to be credited as provided in paragraph three of this
46 subdivision.
47 (5) In the event that a city in which the taxes imposed by section
48 eleven hundred seven of this part are in effect does not pay in full a
49 bill described in paragraph three of this subdivision by the twenty-
50 fifth day of the month described in paragraphs two and three of this
51 subdivision, the comptroller shall deduct any amount not paid from the
52 amount of the next payment or payments due such city, with respect to
53 taxes, penalty and interest imposed pursuant to the authority of section
54 twelve hundred twelve-a of this chapter, pursuant to subdivision (c) of
55 section twelve hundred sixty-one of this chapter, until such amount not
56 paid has been recovered. The comptroller shall deposit the amounts so
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1 deducted and recovered in the mass transportation operating assistance
2 fund to be credited as provided in paragraph three of this subdivision.
3 (6) In the event that a city in which the taxes imposed by section
4 eleven hundred eight of this part are in effect does not pay in full a
5 bill described in paragraph three of this subdivision by the twenty-
6 fifth day of the month described in paragraphs two and three of this
7 subdivision, the comptroller shall deduct any amount not paid from the
8 amount of any other moneys due such city from the comptroller, not
9 otherwise pledged, dedicated or encumbered pursuant to other state law,
10 until such amount not paid has been recovered. The comptroller shall
11 deposit the amounts so deducted and recovered in the mass transportation
12 operating assistance fund to be credited as provided in paragraph three
13 of this subdivision.
14 (7) The commissioner shall certify the amount of any over calculation
15 or under calculation of any certification required to be made to the
16 comptroller under paragraph three of this subdivision as soon after its
17 discovery as reasonably possible and subsequent bills to a city, county
18 or school district to which the over calculation or under calculation
19 relates shall be adjusted accordingly, provided that the comptroller may
20 adjust such number of subsequent bills as the comptroller shall consider
21 reasonable in view of the amount of the adjustment and all other facts
22 and circumstances.
23 (8) On the same date that the comptroller is required to bill a coun-
24 ty, city or school district an amount as provided in paragraph three of
25 this subdivision, the comptroller shall, after having first made any
26 deposits required by section ninety-two-r of the state finance law and
27 only to the extent that there are moneys remaining after having made
28 such required deposits, withdraw from the state treasury, to the debit
29 of the general fund, an amount equal to the total of the amounts
30 required to be billed to counties, cities and school districts pursuant
31 to such paragraph three and deposit such total amount in the mass trans-
32 portation operating assistance fund to be credited as provided in such
33 paragraph three. The amount of any over calculation or under calculation
34 determined in paragraph seven of this subdivision shall likewise be
35 applied to the amounts required to be deposited under this paragraph, so
36 that the amounts deposited under this paragraph equal the total of the
37 amounts required to be billed to counties, cities and school districts
38 under such paragraph three, as adjusted, pursuant to such paragraph
39 seven.
40 § 8. Subparagraph (i) of paragraph 1 of subdivision (a) of section
41 1210 of the tax law, as amended by section 4 of part SS-1 of chapter 57
42 of the laws of 2008, is amended to read as follows:
43 (i) Either, all of the taxes described in article twenty-eight of this
44 chapter, at the same uniform rate, as to which taxes all provisions of
45 the local laws, ordinances or resolutions imposing such taxes shall be
46 identical, except as to rate and except as otherwise provided, with the
47 corresponding provisions in such article twenty-eight, including the
48 definition and exemption provisions of such article, so far as the
49 provisions of such article twenty-eight can be made applicable to the
50 taxes imposed by such city or county and with such limitations and
51 special provisions as are set forth in this article. The taxes author-
52 ized under this subdivision may not be imposed by a city or county
53 unless the local law, ordinance or resolution imposes such taxes so as
54 to include all portions and all types of receipts, charges or rents,
55 subject to state tax under sections eleven hundred five and eleven
56 hundred ten of this chapter, except as otherwise provided. Any local
A. 4730 5
1 law, ordinance or resolution enacted by any city of less than one
2 million or by any county or school district, imposing the taxes author-
3 ized by this subdivision, shall, notwithstanding any provision of law to
4 the contrary, exclude from the operation of such local taxes all sales
5 of tangible personal property for use or consumption directly and
6 predominantly in the production of tangible personal property, gas,
7 electricity, refrigeration or steam, for sale, by manufacturing, proc-
8 essing, generating, assembly, refining, mining or extracting; and all
9 sales of tangible personal property for use or consumption predominantly
10 either in the production of tangible personal property, for sale, by
11 farming or in a commercial horse boarding operation, or in both; and,
12 unless such city, county or school district elects otherwise, shall omit
13 the provision for credit or refund contained in clause six of subdivi-
14 sion (a) of section eleven hundred nineteen of this chapter. Any local
15 law, ordinance or resolution enacted by any city, county or school
16 district, imposing the taxes authorized by this subdivision, shall omit
17 the residential solar energy systems equipment exemption provided for in
18 subdivision (ee), the clothing and footwear exemption provided for in
19 paragraph thirty of subdivision (a) [and], the qualified empire zone
20 enterprise exemptions provided for in subdivision (z) and the new Energy
21 Star appliances exemption provided for in paragraph forty-five of subdi-
22 vision (a) of section eleven hundred fifteen of this chapter, unless
23 such city, county or school district elects otherwise as to either such
24 residential solar energy systems equipment exemption [or], such clothing
25 and footwear exemption [or], such qualified empire zone enterprise
26 exemptions or such new Energy Star appliances exemption; provided that
27 if such a city having a population of one million or more in which the
28 taxes imposed by section eleven hundred seven of this chapter are in
29 effect enacts the resolution described in subdivision (k) of this
30 section or repeals such resolution or enacts the resolution described in
31 subdivision (l) of this section or repeals such resolution or enacts the
32 resolution described in subdivision (n) or (p) of this section or
33 repeals such resolution, such resolution or repeal shall also be deemed
34 to amend any local law, ordinance or resolution enacted by such a city
35 imposing such taxes pursuant to the authority of this subdivision,
36 whether or not such taxes are suspended at the time such city enacts its
37 resolution pursuant to subdivision (k), (l) or (n) of this section or at
38 the time of any such repeal; provided, further, that any such local law,
39 ordinance or resolution and section eleven hundred seven of this chap-
40 ter, as deemed to be amended in the event a city of one million or more
41 enacts a resolution pursuant to the authority of subdivision (k), (l)
42 [or], (n) or (p) of this section, shall be further amended, as provided
43 in section twelve hundred eighteen of this subpart, so that the residen-
44 tial solar energy systems equipment exemption [or], the clothing and
45 footwear exemption [or], the qualified empire zone enterprise exemptions
46 or the new Energy Star appliances exemption in any such local law, ordi-
47 nance or resolution or in such section eleven hundred seven are the
48 same, as the case may be, as the residential solar energy systems equip-
49 ment exemption provided for in subdivision (ee), the clothing and foot-
50 wear exemption in paragraph thirty of subdivision (a) [or], the quali-
51 fied empire zone enterprise exemptions in subdivision (z) or the new
52 Energy Star appliances exemption provided for in paragraph forty-five of
53 subdivision (a) of section eleven hundred fifteen of this chapter.
54 § 9. Subdivision (d) of section 1210 of the tax law, as amended by
55 section 12 of part GG of chapter 63 of the laws of 2000, is amended to
56 read as follows:
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1 (d) A local law, ordinance or resolution imposing any tax pursuant to
2 this section, increasing or decreasing the rate of such tax, repealing
3 or suspending such tax, exempting from such tax the energy sources and
4 services described in paragraph three of subdivision (a) or of subdivi-
5 sion (b) of this section or changing the rate of tax imposed on such
6 energy sources and services or providing for the credit or refund
7 described in clause six of subdivision (a) of section eleven hundred
8 nineteen of this chapter must go into effect only on one of the follow-
9 ing dates: March first, June first, September first or December first;
10 provided, that a local law, ordinance or resolution providing for the
11 exemption described in paragraph thirty or forty-five of subdivision (a)
12 or providing for the exemptions described in subdivision (z) of section
13 eleven hundred fifteen of this chapter or repealing any such exemption
14 so provided and a resolution enacted pursuant to the authority of subdi-
15 vision (k) or (p) of this section providing such exemption or subdivi-
16 sion (l) of this section providing such exemptions or repealing such
17 exemption or exemptions so provided must go into effect only on March
18 first. No such local law, ordinance or resolution shall be effective
19 unless a certified copy of such law, ordinance or resolution is mailed
20 by registered or certified mail to the commissioner at the commission-
21 er's office in Albany at least ninety days prior to the date it is to
22 become effective. However, the commissioner may waive and reduce such
23 ninety-day minimum notice requirement to a mailing of such certified
24 copy by registered or certified mail within a period of not less than
25 thirty days prior to such effective date if the commissioner deems such
26 action to be consistent with the commissioner's duties under section
27 twelve hundred fifty of this article and the commissioner acts by resol-
28 ution. Where the restriction provided for in section twelve hundred
29 twenty-three of this article as to the effective date of a tax and the
30 notice requirement provided for therein are applicable and have not been
31 waived, the restriction and notice requirement in section twelve hundred
32 twenty-three of this article shall also apply.
33 § 10. Section 1210 of the tax law is amended by adding a new subdivi-
34 sion (p) to read as follows:
35 (p) Notwithstanding any other provision of state or local law, ordi-
36 nance or resolution to the contrary:
37 (1) Any city having a population of one million or more in which the
38 taxes imposed by section eleven hundred seven of this chapter are in
39 effect, acting through its local legislative body, is hereby authorized
40 and empowered to elect to provide the exemption from such taxes for the
41 same new Energy Star appliances exempt from state sales and compensating
42 use taxes, during the same periods each year, described in paragraph
43 forty-five of subdivision (a) of section eleven hundred fifteen of this
44 chapter by enacting a resolution exactly in the form set forth in para-
45 graph two of this subdivision; whereupon, upon compliance with the
46 provisions of subdivisions (d) and (e) of this section, such enactment
47 of such resolution shall be deemed to be an amendment to such section
48 eleven hundred seven and such section eleven hundred seven shall be
49 deemed to incorporate such exemption as if it had been duly enacted by
50 the state legislature and approved by the governor.
51 (2) Form of Resolution: Be it enacted by the (insert proper title of
52 local legislative body) as follows:
53 Section one. Receipts from sales of and consideration given or
54 contracted to be given for, or for the use of, new Energy Star appli-
55 ances exempt from state sales and compensating use taxes pursuant to
56 paragraph 45 of subdivision (a) of section 1115 of the New York Tax Law
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1 shall also be exempt from sales and compensating use taxes imposed in
2 this jurisdiction, during the same periods set forth in such paragraph
3 45.
4 Section two. This resolution shall take effect March 1, 2010 and shall
5 apply to sales made and uses occurring during the applicable exemptions
6 periods each year, in accordance with the applicable transitional
7 provisions of sections 1106 and 1217 of the New York Tax Law.
8 § 11. Notwithstanding any other provision of state or local law, ordi-
9 nance or resolution to the contrary: (a) Any county or city imposing
10 sales and compensating use taxes pursuant to the authority of subpart B
11 of part 1 of article 29 of the tax law, acting through its local legis-
12 lative body, is hereby authorized and empowered to elect to provide the
13 exemption from such taxes for new Energy Star appliances exempt from
14 state sales and compensating use taxes described in paragraph 45 of
15 subdivision (a) of section 1115 of the tax law, for the periods
16 described therein, whether such taxes are imposed by local law, ordi-
17 nance or resolution, by enacting a resolution exactly in the form set
18 forth in subdivision (c) of this section; whereupon, upon compliance
19 with the provisions of subdivision (d) of this section, such enactment
20 of such resolution shall be deemed to amend such local law, ordinance or
21 resolution imposing such taxes, and such local law, ordinance or resol-
22 ution shall thenceforth be deemed to incorporate such exemption for such
23 periods.
24 (b) Any city of one million or more in which the taxes imposed by
25 section 1107 of the tax law are in effect, acting through its local
26 legislative body, is hereby authorized and empowered to elect to provide
27 the exemption from such taxes for the same new Energy Star appliances
28 exempt from state sales and compensating use taxes described in para-
29 graph 45 of subdivision (a) of section 1115 of the tax law, for the
30 periods described therein, by enacting a resolution exactly in the form
31 set forth in subdivision (c) of this section; whereupon, upon compliance
32 with the provisions of subdivision (d) of this section, such enactment
33 of such resolution shall be deemed to amend such section 1107 of the tax
34 law and such section 1107 shall thenceforth be deemed to incorporate
35 such exemption for such periods as if it had been duly enacted by the
36 state legislature and approved by the governor and such resolution shall
37 also be deemed to amend any local law, ordinance or resolution enacted
38 by such a city imposing such taxes pursuant to the authority of subdivi-
39 sion (a) of section 1210 of the tax law, whether or not such taxes are
40 suspended at the time such city enacts its resolution.
41 (c) Form of Resolution:
42 Be it enacted by the (insert proper title of local legislative body)
43 as follows:
44 Section one: The (county or city) of (insert locality's name) hereby
45 elects the two annual one-week new Energy Star appliance exemption peri-
46 ods commencing in the fall of 2008.
47 Section two: This resolution shall take effect immediately and shall
48 apply to sales made and uses occurring during the applicable periods
49 each year, in accordance with applicable transitional provisions of the
50 New York Tax Law.
51 (d) A resolution adopted pursuant to this section shall be effective
52 only if it is adopted exactly as set forth in subdivision (c) of this
53 section and such county or city adopts it by March 1, 2010, mails a
54 certified copy of it to the commissioner of taxation and finance by
55 certified mail by such date and otherwise complies with the requirements
56 of subdivisions (d) and (e) of section 1210 of the tax law.
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1 § 12. This act shall take effect immediately and shall apply to sales
2 made and uses occurring during exemption periods on or after that date
3 in accordance with the applicable transitional provisions of sections
4 1106 and 1217 of the tax law.
