Relates to the definition of presence in New York in determining a taxpayer's New York residency status; adds filing fees for partnerships; enacts reforms to the empire zones program; relates to conforming the definition of manufacturing for purposes of tax credits under article 9-A of the tax law; excludes generation and distribution of electricity; provides for exemption from franchise tax for certain town or county cooperative insurance companies; increases the rate of the premiums tax on certain insurance companies; eliminates the franchise tax imposed on life insurance companies; relates to tax collection and offset agreements with the United States and other states; relates to the treatment of overcapitalized captive insurance companies; limits various under-utilized tax credits; requires nonresident individuals to include as income the gain or loss from the sale of a partnership, limited liability corporation, S corporation with 100 or fewer shareholders to the extent that the gain or loss includes gain or loss from real property located in New York state; changes the percentage used to compute the mandatory first installment of franchise tax and the metropolitan commuter transportation district business tax surcharge under articles 9, 9-A, 32 and 33; relates to a credit against income tax for persons or entities investing in low-income housing; provides for a five hundred dollar threshold for a sales and compensating use tax exemption for clothing and footwear for two, one week exemption periods; imposes state and local sales and compensating use taxes on certain personal services; hair, manicures, pedicures, beauty, massage services, credit rating services; exempts personal services that are rendered by a physician or other person licensed under title 8 of the education law; repeals provisions of the administrative code relating to sales and use taxes; relates to limiting itemized deductions for certain taxpayers and determining the amount of estimated tax installments to be paid; relates to the treatment of income received by partners for performing investment management services as New York source income received for services; provides a tax credit for increasing research activities; relates to qualified emerging technology company facilities, operations and training credits; relates to imposing a tax on cable television service; relates to tobacco products, cigarette taxes, and the manner in which cigars are taxed; includes the amount of any discount given for a coupon in the amounts subject to the sales and compensating use taxes; relates to investment of lottery moneys available and retained on deposit for the payment of lottery prizes; such moneys may be invested or caused to be invested in obligations by the comptroller as provided or in other investments with the care, skill, prudence and diligence of a prudent person acting in like capacity; such investments may be made by a money manager or other advisor recommended by the lottery division and approved by the comptroller; relates to the operation of video lottery gaming; makes technical corrections regarding the operation of video lottery gaming and approving the construction or alteration of any facility housing video lottery gaming; amends chapter 383 of the laws of 2001, authorizes the division of the lottery to conduct a pilot program involving the operation of video lottery terminals at certain racetracks; expands the definition of "vendor" for purposes of the sales and compensating use taxes; authorizes video lottery gaming at Belmont Park; relates to taxing flavored malt beverages at the low liquor tax rate; relates to extending certain provisions of the racing, pari-mutuel wagering and breeding law; increases the percentage for computing receipts and considerations for certain taxes; attempts to curtail certain sales and compensating use tax avoidance schemes; repeals sales and compensating use tax credit and refund for bad debt for purchases made by private label credit cards; provides for the taxation of digital products; removes the cap on the taxation of motor fuel and diesel motor fuel; authorizes the commissioner of taxation and finance to require the use of decals as evidence that a carrier has a valid certificate of registration for each motor vehicle operated or to be operated on the public highways of this state; imposes state sales and compensating use tax surcharge on certain beverage products; 18% on fruit drinks that contain less than 70% of natural fruit juice and soft drinks, soda and beverages that are ordinarily dispensed at soda fountains; does not apply to diet soda; raises replacement certificates of registration from four dollars to fifteen dollars for motor vehicles and for any trailer, semi-trailer, dolly or other device drawn thereby; imposes an additional rate of sales tax on certain luxury property; eliminates the expiration of and make permanent the provisions of law authorizing the quick draw lottery game; eliminates restrictions on the manner in which the quick draw lottery game is authorized to be conducted; relates to participation in more than one joint, multi-jurisdictional and out of state lottery; allows for participation in more than one such group at any time; creates a new grocery store or drug store wine license; provides schedule of fees for stores in business for less than twelve months and for stores in business for twelve months and longer; increases taxes paid by distributors of beer and wine; provides for a special floor tax to be imposed on beer and wine products under contract but not delivered prior to the effective date of the tax increase; increases the special tax on passenger car rentals from 5% to 6% of the receipts therefrom; relates to imposing a sales and compensating use tax on certain transportation services; expands sales taxes on certain amusement charges; relates to narrowing the sales tax definition and treatment of capitol improvements; imposes higher penalties for tax scofflaws.
STATE OF NEW YORK
________________________________________________________________________
S. 60--A A. 160--A
SENATE - ASSEMBLY(Prefiled)
January 7, 2009
___________
IN SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti-
cle seven of the Constitution -- read twice and ordered printed, and
when printed to be committed to the Committee on Finance -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
IN ASSEMBLY -- A BUDGET BILL, submitted by the Governor pursuant to
article seven of the Constitution -- read once and referred to the
Committee on Ways and Means -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the tax law and the administrative code of the city of
New York, in relation to the definition of presence in New York in
determining a taxpayer's New York residency status (Part A); to amend
the tax law, in relation to conforming the definition of manufacturing
under the capital base to the definition of manufacturing under the
entire net income base (Part B); to amend the tax law, in relation to
the exemption from the franchise tax on insurance corporations under
article thirty-three of such law for town or county cooperative insur-
ance corporations (Part C); to amend the tax law, in relation to
increasing the rate of the premiums tax on certain insurance companies
and eliminating the franchise tax imposed on life insurance companies,
and to repeal certain provisions of the tax law relating thereto (Part
D); to amend the tax law, in relation to collection and offset agree-
ments with the United States or other states (Part E); to amend the
tax law, in relation to the treatment of overcapitalized captive
insurance companies (Part F); to amend the tax law, in relation to
limiting various underutilized tax credits (Part G); to amend the tax
law, in relation to requiring nonresidents to include as a source of
income the gain or loss from the sale of a partnership, limited
liability corporation, S corporation or a non-publicly traded C corpo-
ration with one hundred or fewer shareholders to the extent that the
gain or loss includes gain or loss from real property located in New
York (Part H); to amend the tax law, in relation to changing the
percentage used to complete the mandatory first installment of fran-
chise tax and the metropolitan commuter transportation district busi-
ness tax surcharge under articles 9, 9-A, 32 and 33 (Part I); to amend
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12374-02-9
S. 60--A 2 A. 160--A
the tax law, in relation to adding filing fees for partnerships (Part
J); to amend the general municipal law and the tax law, in relation to
enacting reforms to the empire zones program; and to repeal certain
provisions of such laws relating thereto (Part K); to amend the public
housing law, in relation to providing a credit against income tax for
persons or entities investing in low-income housing (Part L); to amend
the tax law and the administrative code of the city of New York, in
relation to limiting itemized deductions for certain taxpayers and
determining the amount of estimated tax installments to be paid (Part
M); to amend the tax law, in relation to the treatment of income
received by partners for performing investment management services as
New York source income received for the performance of services (Part
N); to amend the tax law, in relation to providing taxpayers with a
credit for increasing research activities (Part O); to amend the tax
law, in relation to the qualified emerging technology company facili-
ties, operations and training credit (Part P); to amend the tax law,
in relation to imposing sales tax on cable television service (Part
Q); to amend the tax law, in relation to the tobacco products and
cigarette taxes to remedy various compliance and enforcement problems
and in relation to taxing cigars by unit rather than by a percentage
of the wholesale price (Part R); to amend the tax law, in relation to
including the amount of any discount given for a coupon in the amounts
subject to the sales and compensating use taxes (Part S); to amend the
state finance law, in relation to investment of lottery moneys avail-
able and retained on deposit for the payment of lottery prizes (Part
T); to amend the tax law, in relation to replacing the year-round
sales and compensating use tax exemption for clothing and footwear
under one hundred ten dollars with two one-week exemption periods with
a five hundred dollar threshold and authorizing counties and cities
that impose such taxes to elect or decline such exemption weeks; and
to repeal subdivision (k) of section 1210 of such law relating thereto
(Part U); to amend the tax law, in relation to imposing state and
local sales and compensating use taxes on certain personal services
and credit rating and reporting services currently imposed by a city
of one million or more, and to repeal section 11-2002 and subchapter 3
of chapter 20 of title 11 of the administrative code of the city of
New York, relating to that city's sales and use taxes on those
personal services and credit rating and reporting services (Part V);
to amend the tax law, in relation to making technical corrections
regarding the operation of video lottery gaming and approving the
construction or alteration of any facility housing video lottery
gaming; and to amend chapter 383 of the laws of 2001, amending the tax
law and other laws relating to authorizing the division of the lottery
to conduct a pilot program involving the operation of video lottery
terminals at certain racetracks, in relation to the effectiveness
thereof; and to repeal certain provisions of the tax law relating
thereto (Part W); to amend the tax law and the alcoholic beverage
control law, in relation to taxing flavored malt beverages at the low
liquor tax rate (Part X); to amend the racing, pari-mutuel wagering
and breeding law in relation to licenses for simulcast facilities,
sums relating to track simulcast, simulcast of out-of-state thorough-
bred races, simulcasting of races run by out-of-state harness tracks
and distributions of wagers; to amend chapter 281 of the laws of 1994
amending the racing, pari-mutuel wagering and breeding law and other
laws relating to simulcasting and to amend chapter 346 of the laws of
1990 amending the racing, pari-mutuel wagering and breeding law and
S. 60--A 3 A. 160--A
other laws relating to simulcasting and the imposition of certain
taxes, in relation to extending certain provisions thereof; and to
amend the racing, pari-mutuel wagering and breeding law, in relation
to extending certain provisions thereof (Part Y); to amend the tax
law, in relation to changing the rate of the prepaid sales tax on
cigarettes (Part Z); to amend the tax law, in relation to curtailing
certain abusive sales and use tax avoidance schemes by narrowing the
use tax non-resident exemption for certain items of tangible personal
property and the sales tax exemption for commercial aircraft (Part
AA); to repeal subdivision (e-1) of section 1132 of the tax law relat-
ing to a sales tax bad debt credit or refund for purchases made by
private label credit cards (Part BB); to amend the tax law and the
rural electric cooperative law, in relation to imposing sales and
compensating use tax on digital products and clarifying the corpo-
ration franchise tax treatment of these products (Part CC); to amend
the tax law, chapter 35 of the laws of 2006 amending the tax law
relating to computing sales and compensating use tax on motor fuel and
diesel motor fuel and amending the tax law and the general business
law relating to requiring retail dealers of motor fuel and diesel
motor fuel to reduce prices for such fuel, and chapter 109 of the laws
of 2006 amending the tax law and other laws relating to the sales tax
imposed on motor fuel and diesel motor fuel, in relation to repealing
the state and any local sales and compensating use tax cap on motor
fuel and diesel motor fuel and restoring the percentage rate of those
taxes on those fuels (Part DD); to amend the tax law, in relation to
reauthorizing the commissioner of taxation and finance to require the
use of decals in certain instances (Part EE); to amend the tax law, in
relation to expanding the definition of vendor for purposes of the
sales and compensating use taxes (Part FF); to amend the racing, pari-
mutuel wagering and breeding law and the tax law, in relation to
authorizing video lottery gaming at Belmont Park (Part GG); to amend
the tax law and the state finance law, in relation to imposing a state
sales and compensating use tax surcharge on certain beverage products
(Part HH); to amend chapter 405 of the laws of 1999, amending the real
property tax law relating to improving the administration of the
school tax relief (STAR) program, in relation to eliminating the expi-
ration and repeal of the Quick Draw lottery game; and to amend the tax
law, in relation to the game of Quick Draw (Part II); to amend the tax
law, in relation to participation in more than one joint, multi-juris-
diction and out-of-state lottery (Part JJ); to amend the alcoholic
beverage control law, in relation to creating a new grocery or drug
store wine license (Part KK); to amend the tax law, in relation to
taxes on beer and wine under article 18 of the tax law (Part LL); to
amend the tax law, in relation to the special tax on passenger car
rentals under article 28-A of such law (Part MM); to amend the tax
law, in relation to imposing state and local sales taxes on certain
transportation services (Part NN); to amend the tax law, in relation
to expanding sales taxes on certain amusement charges; and to repeal
sections 1122 and 1123 of such law relating thereto (Part OO); to
amend the tax law, in relation to narrowing the sales taxes definition
and treatment of capital improvement (Part PP); to amend the tax law,
in relation to the fees for replacement highway use tax credentials
(Part QQ); to amend the tax law, in relation to imposing an additional
rate of sales tax on certain luxury property (Part RR); and to amend
the tax law, in relation to reporting information regarding deposits
and bank settlements (Subpart A); to amend the tax law, in relation to
S. 60--A 4 A. 160--A
authorizing the use of generally accepted statistical sampling to
determine the amount of sales and compensating use tax due under arti-
cles 28 and 29 of such law (Subpart B); to amend the tax law, in
relation to imposing a penalty for failure to keep mandatory records,
to provide records in auditable format or to provide access to manda-
tory records maintained electronically (Subpart C); to amend the tax
law, in relation to the failure of a responsible person to collect and
pay over withholding tax (Subpart D); to amend the tax law, in
relation to certain penalties; to amend chapter 61 of the laws of 2005
amending the tax law relating to certain transactions and related
information, in relation to making the penalty amount for aiding or
assisting in the giving of fraudulent returns permanent; and to repeal
certain provisions of the tax law relating thereto (Subpart E); to
amend the tax law, in relation to providing expedited hearings relat-
ing to cancellations, revocations, or suspensions of certain creden-
tials and to penalties imposed on persons who aid or assist in the
filing of fraudulent tax documents (Subpart F); to amend the tax law,
in relation to establishing an award program for significant informa-
tion concerning noncompliance with the tax laws of the state of New
York (Subpart G); to amend the tax law, in relation to changing the
last quarterly withholding filing date for employers (Subpart H); to
amend the tax law, in relation to a branch or separate office of a
bank (Subpart I); to amend the criminal procedure law, the penal law
and the tax law, in relation to creating the offense of "tax fraud
act"; to amend the tax law, in relation to simplifying and consolidat-
ing the provisions describing the acts that constitute offenses under
such law; and to repeal certain provisions of the tax law relating
thereto (Subpart J); to amend the county law, in relation to authoriz-
ing district attorneys to appoint attorneys employed by the department
of taxation and finance as special assistant district attorneys in tax
cases (Subpart K); to amend the tax law, in relation to clarifying
some technical aspects of the voluntary disclosure and compliance
program (Subpart L); to amend the tax law, abandoned property law,
environmental conservation law, insurance law, lien law, mental
hygiene law, public health law, real property tax law, social services
law, state finance law and the administrative code of the city of New
York, in relation to decreasing the overpayment and increasing the
underpayment rates of interest, changing the overpayment interest
accrual date for sales and compensating use taxes and providing for an
interest-free period for refunds or credits of sales and compensating
use taxes (Subpart M); to amend the tax law, in relation to requiring
certain third-parties to file information returns providing informa-
tion about vendors, hotel operators and recipients of amusement charg-
es (Subpart N); to amend the tax law, in relation to the filing of tax
warrants and related records in the department of state; and to repeal
section 6 of such law relating thereto (Subpart O); and to amend the
tax law, in relation to the collection of a penalty and interest on
sales and use taxes upon a bulk sale of assets (Subpart P) (Part SS)
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act enacts into law major components of legislation
2 which are necessary to implement the state fiscal plan for the 2009-2010
3 state fiscal year. Each component is wholly contained within a Part
S. 60--A 5 A. 160--A
1 identified as Parts A through SS. The effective date for each particular
2 provision contained within such Part is set forth in the last section of
3 such Part. Any provision in any section contained within a Part, includ-
4 ing the effective date of the Part, which makes a reference to a section
5 "of this act", when used in connection with that particular component,
6 shall be deemed to mean and refer to the corresponding section of the
7 Part in which it is found. Section three of this act sets forth the
8 general effective date of this act.
9 PART A
10 Section 1. Subparagraph (A) of paragraph 1 of subsection (b) of
11 section 605 of the tax law, as amended by chapter 760 of the laws of
12 1992, is amended to read as follows:
13 (A) who is domiciled in this state, unless (i) [he] the taxpayer main-
14 tains no permanent place of abode in this state, maintains a permanent
15 place of abode elsewhere, and spends in the aggregate not more than
16 thirty days of the taxable year in this state, or (ii) (I) within any
17 period of five hundred forty-eight consecutive days [he] the taxpayer is
18 present in a foreign country or countries for at least four hundred
19 fifty days, and (II) during [such] the period of five hundred forty-
20 eight consecutive days [he is] the taxpayer, the taxpayer's spouse
21 (unless the spouse is legally separated) and the taxpayer's minor chil-
22 dren are not present in this state for more than ninety days [and does
23 not maintain a permanent place of abode in this state at which his
24 spouse (unless such spouse is legally separated) or minor children are
25 present for more than ninety days], and (III) during the nonresident
26 portion of the taxable year with or within which [such] the period of
27 five hundred forty-eight consecutive days begins and the nonresident
28 portion of the taxable year with or within which [such] the period ends,
29 [he] the taxpayer is present in this state for a number of days which
30 does not exceed an amount which bears the same ratio to ninety as the
31 number of days contained in [such] that portion of the taxable year
32 bears to five hundred forty-eight, or
33 § 2. Paragraph 1 of subsection (a) of section 1305 of the tax law, as
34 amended by chapter 790 of the laws of 1978, is amended to read as
35 follows:
36 (1) who is domiciled in the city wherein the tax is imposed, unless
37 (A) [he] the taxpayer maintains no permanent place of abode in [such]
38 the city, maintains a permanent place of abode elsewhere, and spends in
39 the aggregate not more than thirty days of the taxable year in [such]
40 the city, or (B) (i) within any period of five hundred forty-eight
41 consecutive days [he] the taxpayer is present in a foreign country or
42 countries for at least four hundred fifty days, and (ii) during such
43 period of five hundred forty-eight consecutive days [he is] the taxpay-
44 er, the taxpayer's spouse (unless the spouse is legally separated) and
45 the taxpayer's minor children are not present in [such] the city for
46 more than ninety days [and does not maintain a permanent place of abode
47 in such city at which his spouse (unless such spouse is legally sepa-
48 rated) or minor children are present for more than ninety days], and
49 (iii) during any period of less than twelve months, which would be
50 treated as a separate taxable period pursuant to section thirteen
51 hundred seven, and which period is contained within [such] the period of
52 five hundred forty-eight consecutive days, [he] the taxpayer is present
53 in [such] the city for a number of days which does not exceed an amount
54 which bears the same ratio to ninety as the number of days contained in
S. 60--A 6 A. 160--A
1 [such] that period of less than twelve months bears to five hundred
2 forty-eight, or
3 § 3. Subparagraph (A) of paragraph 1 of subdivision (b) of section
4 11-1705 of the administrative code of the city of New York, as amended
5 by chapter 333 of the laws of 1987, is amended to read as follows:
6 (A) who is domiciled in this city, unless (i) [he] the taxpayer main-
7 tains no permanent place of abode in this city, maintains a permanent
8 place of abode elsewhere, and spends in the aggregate not more than
9 thirty days of the taxable year in this city, or (ii) (I) within any
10 period of five hundred forty-eight consecutive days [he] the taxpayer is
11 present in a foreign country or countries for at least four hundred
12 fifty days, and (II) during [such] the period of five hundred forty-
13 eight consecutive days [he is] the taxpayer, the taxpayer's spouse
14 (unless the spouse is legally separated) and the taxpayer's minor chil-
15 dren are not present in this city for more than ninety days [and does
16 not maintain a permanent place of abode in this city at which his spouse
17 (unless such spouse is legally separated) or minor children are present
18 for more than ninety days], and (III) during any period of less than
19 twelve months, which would be treated as a separate taxable period
20 pursuant to section 11-1754, and which period is contained within [such]
21 the period of five hundred forty-eight consecutive days, [he] the
22 taxpayer is present in this city for a number of days which does not
23 exceed an amount which bears the same ratio to ninety as the number of
24 days contained in [such] that period of less than twelve months bears to
25 five hundred forty-eight, or
26 § 4. Paragraph 1 of subsection (a) of section 1325 of the tax law, as
27 added by chapter 345 of the laws of 1984, is amended to read as follows:
28 (1) who is domiciled in the city wherein the city income tax surcharge
29 is imposed pursuant to the authority of this article, unless (A) [he]
30 the taxpayer maintains no permanent place of abode in such city, main-
31 tains a permanent place of abode elsewhere, and spends in the aggregate
32 not more than thirty days of the taxable year in [such] the city, or
33 (B)(i) within any period of five hundred forty-eight consecutive days
34 [he is] the taxpayer, the taxpayer's spouse (unless the spouse is legal-
35 ly separated) and the taxpayer's minor children are present in a foreign
36 country or countries for at least four hundred fifty days, and (ii)
37 during [such] the period of five hundred forty-eight consecutive days
38 [he] the taxpayer is not present in [such] the city for more than ninety
39 days [and does not maintain a permanent place of abode in such city at
40 which his spouse (unless such spouse is legally separated) or minor
41 children are present for more than ninety days], and (iii) during any
42 period of less than twelve months, which would be treated as a separate
43 taxable period pursuant to section thirteen hundred twenty-seven of this
44 article, and which period is contained within [such] the period of five
45 hundred forty-eight consecutive days, [he] the taxpayer is present in
46 [such] the city for a number of days which does not exceed an amount
47 which bears the same ratio to ninety as the number of days contained in
48 [such] that period of less than twelve months bears to five hundred
49 forty-eight, or
50 § 5. Paragraph 1 of subsection (f) of section 1 contained in
51 subsection (c) of section 1340 of the tax law, as added by chapter 345
52 of the laws of 1984, is amended to read as follows:
53 (1) who is domiciled in the city, unless (A) [he] the taxpayer main-
54 tains no permanent place of abode in the city, maintains a permanent
55 place of abode elsewhere, and spends in the aggregate not more than
56 thirty days of the taxable year in the city, or (B) (i) within any peri-
S. 60--A 7 A. 160--A
1 od of five hundred forty-eight consecutive days [he] the taxpayer is
2 present in a foreign country or countries for at least four hundred
3 fifty days, and (ii) during such period of five hundred forty-eight
4 consecutive days [he is] the taxpayer, the taxpayer's spouse (unless the
5 spouse is legally separated) and the taxpayer's minor children are not
6 present in the city for more than ninety days [and does not maintain a
7 permanent place of abode in the city at which his spouse (unless such
8 spouse is legally separated) or minor children are present for more than
9 ninety days], and (iii) during any period of less than twelve months,
10 which would be treated as a separate taxable period based on a change of
11 resident status, and which period is contained within [such] the period
12 of five hundred forty-eight consecutive days, [he] the taxpayer is pres-
13 ent in the city for a number of days which does not exceed an amount
14 which bears the same ratio to ninety as the number of days contained in
15 [such] that period of less than twelve months bears to five hundred
16 forty-eight, or
17 § 6. This act shall take effect immediately and apply to taxable years
18 beginning on or after January 1, 2009.
19 PART B
20 Section 1. Subparagraph 2 of paragraph (b) of subdivision 1 of section
21 210 of the tax law, as amended by section 1 of part GG-1 of chapter 57
22 of the laws of 2008, is amended to read as follows:
23 (2) For purposes of subparagraph one of this paragraph, the term
24 "manufacturer" shall mean a taxpayer which during the taxable year is
25 principally engaged in the production of goods by manufacturing, proc-
26 essing, assembling, refining, mining, extracting, farming, agriculture,
27 horticulture, floriculture, viticulture or commercial fishing. However,
28 the generation and distribution of electricity, the distribution of
29 natural gas, and the production of steam associated with the generation
30 of electricity are not qualifying activities for a manufacturer under
31 this subparagraph. Moreover, for purposes of computing the capital base
32 in a combined report, the combined group shall be considered a "manufac-
33 turer" for purposes of this subparagraph only if the combined group
34 during the taxable year is principally engaged in the activities set
35 forth in this subparagraph, or any combination thereof. A taxpayer or a
36 combined group shall be "principally engaged" in activities described
37 above if, during the taxable year, more than fifty percent of the gross
38 receipts of the taxpayer or combined group, respectively, are derived
39 from receipts from the sale of goods produced by such activities. In
40 computing a combined group's gross receipts, intercorporate receipts
41 shall be eliminated. A "qualified New York manufacturer" is a manufac-
42 turer that has property in New York that is described in clause (A) of
43 subparagraph (i) of paragraph (b) of subdivision twelve of this section
44 and either (i) the adjusted basis of that property for federal income
45 tax purposes at the close of the taxable year is at least one million
46 dollars or (ii) all of its real and personal property is located in New
47 York. In addition, a "qualified New York manufacturer" means a taxpayer
48 that is defined as a qualified emerging technology company under para-
49 graph (c) of subdivision one of section thirty-one hundred two-e of the
50 public authorities law regardless of the ten million dollar limitation
51 expressed in subparagraph one of such paragraph.
52 § 2. This act shall take effect immediately and shall apply to taxable
53 years beginning on or after January 1, 2009.
S. 60--A 8 A. 160--A
1 PART C
2 Section 1. Paragraph 7 of subdivision (a) of section 1512 of the tax
3 law, as amended by chapter 817 of the laws of 1987, is amended to read
4 as follows:
5 (7) a town or county cooperative insurance corporation as heretofore
6 contemplated by section one hundred eighty-seven of this chapter in
7 effect immediately prior to January first, nineteen hundred
8 seventy-four, that properly reported to the superintendent of insurance
9 total direct premiums written for the taxable year of twenty-five
10 million dollars or less.
11 § 2. This act shall take effect immediately and apply to taxable years
12 beginning on or after January 1, 2009.
13 PART D
14 Section 1. Subdivisions (g), (h), (i) and (j) of section 1500, and
15 sections 1501, 1502, 1502-a, 1503, 1504, and 1505 of the tax law are
16 REPEALED.
17 § 2. Subdivision (e) of section 1500 of the tax law, as amended by
18 section 1 of part H3 of chapter 62 of the laws of 2003, is amended to
19 read as follows:
20 (e) The term "taxpayer" means any insurance corporation subject to the
21 tax imposed under section [fifteen hundred one, fifteen hundred two-a,
22 or] fifteen hundred ten or any captive insurance company subject to the
23 tax imposed under section fifteen hundred two-b of this article.
24 § 3. Subdivision (a) of section 1502-b of the tax law, as separately
25 amended by section 3 of part H1 of chapter 62 and chapter 188 of the
26 laws of 2003, is amended to read as follows:
27 (a) In lieu of the [taxes] tax and tax surcharge imposed by sections
28 [fifteen hundred one, fifteen hundred two-a,] fifteen hundred five-a[,]
29 and fifteen hundred ten of this article, every captive insurance company
30 licensed by the superintendent of insurance pursuant to the provisions
31 of article seventy of the insurance law, other than the metropolitan
32 transportation authority and a public benefit corporation or not-for-
33 profit corporation formed by a city with a population of one million or
34 more pursuant to subsection (a) of section seven thousand five of the
35 insurance law, each of which is expressly exempt from the payment of
36 fees, taxes or assessments whether state or local, shall, for the privi-
37 lege of exercising its corporate franchise, pay a tax on (1) all gross
38 direct premiums, less return premiums thereon, written on risks located
39 or resident in this state and (2) all assumed reinsurance premiums, less
40 return premiums thereon, written on risks located or resident in this
41 state. The rate of the tax imposed on gross direct premiums shall be
42 four-tenths of one percent on all or any part of the first twenty
43 million dollars of premiums, three-tenths of one percent on all or any
44 part of the second twenty million dollars of premiums, two-tenths of one
45 percent on all or any part of the third twenty million dollars of premi-
46 ums, and seventy-five thousandths of one percent on each dollar of
47 premiums thereafter. The rate of the tax on assumed reinsurance premiums
48 shall be two hundred twenty-five thousandths of one percent on all or
49 any part of the first twenty million dollars of premiums, one hundred
50 and fifty thousandths of one percent on all or any part of the second
51 twenty million dollars of premiums, fifty thousandths of one percent on
52 all or any part of the third twenty million dollars of premiums and
53 twenty-five thousandths of one percent on each dollar of premiums there-
S. 60--A 9 A. 160--A
1 after. The tax imposed by this section shall be equal to the greater of
2 (i) the sum of the tax imposed on gross direct premiums and the tax
3 imposed on assumed reinsurance premiums or (ii) five thousand dollars.
4 § 4. Subdivisions (a) and (e) of section 1505-a of the tax law, subdi-
5 vision (a) as amended by section 6 of part II-1 of chapter 57 of the
6 laws of 2008 and subdivision (e) as amended by chapter 166 of the laws
7 of 1991, are amended to read as follows:
8 (a) (1) Every domestic insurance corporation and every foreign or
9 alien insurance corporation, and every life insurance corporation
10 described in paragraph two of subdivision (b) of section fifteen hundred
11 [one] ten of this article, for the privilege of exercising its corporate
12 franchise, or of doing business, or of employing capital, or of owning
13 or leasing property in the metropolitan commuter transportation district
14 in a corporate or organized capacity, or of maintaining an office in the
15 metropolitan commuter transportation district, for all or any part of
16 its taxable years commencing on or after January first, nineteen hundred
17 eighty-two, but ending before December thirty-first, two thousand thir-
18 teen, except corporations specified in subdivision (c) of section
19 fifteen hundred twelve of this article, shall annually pay, in addition
20 to the [taxes otherwise] tax imposed by section fifteen hundred ten of
21 this article, a tax surcharge on [the taxes imposed under this article]
22 that tax after the deduction of any credits otherwise allowable under
23 this article as allocated to such district. [Such taxes shall be allo-
24 cated to such district for purposes of computing such tax surcharge upon
25 taxpayers subject to tax under subdivision (b) of section fifteen
26 hundred ten of this article by applying the methodology, procedures and
27 computations set forth in subdivisions (a) and (b) of section fifteen
28 hundred four of this article, except that references to terms denoting
29 New York premiums, and total wages, salaries, personal service compen-
30 sation and commissions within New York shall be read as denoting within
31 the metropolitan commuter transportation district and terms denoting
32 total premiums and total wages, salaries, personal service compensation
33 and commissions shall be read as denoting within the state. If it shall
34 appear to the commissioner that the application of the methodology,
35 procedures and computations set forth in such subdivisions (a) and (b)
36 does not properly reflect the activity, business or income of a taxpayer
37 within the metropolitan commuter transportation district, then the
38 commissioner shall be authorized, in the commissioner's discretion, to
39 adjust such methodology, procedures and computations for the purpose of
40 allocating such taxes by:
41 (A) excluding one or more factors therein;
42 (B) including one or more other factors therein, such as expenses,
43 purchases, receipts other than premiums, real property or tangible
44 personal property; or
45 (C) any other similar or different method which allocates such taxes
46 by attributing a fair and proper portion of such taxes to the metropol-
47 itan commuter transportation district. The commissioner from time to
48 time shall publish all rulings of general public interest with respect
49 to any application of the provisions of the preceding sentence. The
50 commissioner may promulgate rules and regulations to further implement
51 the provisions of this section.
52 (2) Such taxes] The tax imposed by section fifteen hundred ten shall
53 be allocated to such district for purposes of computing such tax
54 surcharge [upon taxpayers subject to tax under section fifteen hundred
55 two-a of this article] pursuant to a fraction, the denominator of which
56 shall be the direct premiums subject to tax under section fifteen
S. 60--A 10 A. 160--A
1 hundred ten of this article, and the numerator of which shall be the
2 direct premiums subject to tax under section fifteen hundred ten of this
3 article that are written on risks located or resident in the metropol-
4 itan commuter transportation district, including premiums written,
5 procured or received in the metropolitan commuter transportation
6 district on business that cannot be specifically assigned as located or
7 resident in an area of New York state outside the metropolitan commuter
8 transportation district, or in another state or states; provided, howev-
9 er, in the case of special risk premiums, the numerator shall include
10 only those premiums written, procured or received in the metropolitan
11 commuter transportation district on property or risks located or resi-
12 dent in the metropolitan commuter transportation district. If it shall
13 appear to the commissioner that the application of the methodology,
14 procedures and computations set forth in this paragraph does not proper-
15 ly reflect the activity[,] or business [or income] of a taxpayer within
16 the metropolitan commuter transportation district, then the commissioner
17 shall be authorized, in the commissioner's discretion, to adjust such
18 methodology, procedures and computations for the purpose of allocating
19 such taxes by: (A) excluding the factor therein and including one or
20 more other factors such as expenses, purchases, receipts other than
21 premiums, real property or tangible personal property; or (B) any other
22 similar or different method which allocates such taxes by attributing a
23 fair and proper portion of such taxes to the metropolitan commuter
24 transportation district. The commissioner from time to time shall
25 publish all rulings of general public interest with respect to any
26 application of the provisions of the preceding sentence. The commission-
27 er may promulgate rules and regulations to further implement the
28 provisions of this section.
29 [(3)] (2) Such tax surcharge shall be computed at the rate of [eigh-
30 teen percent of the taxes imposed under sections fifteen hundred one and
31 fifteen hundred ten of this article as limited by section fifteen
32 hundred five of this article, as allocated to such district, for such
33 taxable years or any part of such taxable years ending before December
34 thirty-first, nineteen hundred eighty-three after the deduction of any
35 credits otherwise allowable under this article, at the rate of seventeen
36 percent of the taxes imposed under such sections as limited by section
37 fifteen hundred five of this article, as allocated to such district, for
38 such taxable years or any part of such taxable years ending on or after
39 December thirty-first, nineteen hundred eighty-three and before January
40 first, two thousand three after the deduction of any credits otherwise
41 allowable under this article, and at the rate of seventeen percent of
42 the taxes imposed under sections fifteen hundred one, fifteen hundred
43 two-a, and fifteen hundred ten of this article, as limited or otherwise
44 determined by subdivision (a) or (b) of section fifteen hundred five of
45 this article, as allocated to such district, for such taxable years or
46 any part of such taxable years ending after December thirty-first, two
47 thousand two after the deduction of any credits otherwise allowable
48 under this article] seventeen percent of the tax imposed by section
49 fifteen hundred ten of this article after the deduction of any credits
50 otherwise allowable under this article, as allocated to such district,
51 for taxable years or any part of a taxable year ending after December
52 thirty-first, two thousand eight; provided, however, that the tax
53 surcharge imposed by this section shall not be imposed upon any taxpayer
54 for more than three hundred seventy-two months. [Provided however, that
55 for taxable years commencing on or after July first, two thousand, and
56 in the case of taxpayers subject to tax under section fifteen hundred
S. 60--A 11 A. 160--A
1 two-a of this article, for taxable years of such taxpayers beginning on
2 or after July first, two thousand and before January first, two thousand
3 three, such surcharge shall be calculated as if (i) the rate of the tax
4 computed under paragraph one of subdivision (a) of section fifteen
5 hundred two of this article was nine percent and (ii) the rate of the
6 limitation on tax set forth in section fifteen hundred five of this
7 article for domestic, foreign and alien insurance corporations except
8 life insurance corporations was two and six-tenths percent.]
9 (e) The provisions concerning returns under section fifteen hundred
10 fifteen of this article shall be applicable to this section, except that
11 for purposes of an automatic extension for six months for filing a
12 return covering the tax surcharges imposed by this section, such auto-
13 matic extension shall be allowed only if a taxpayer files with the
14 commissioner an application for extension in such form and manner as
15 said commissioner may prescribe by regulation and such taxpayer pays on
16 or before the date of such filing in addition to any other amounts
17 required under this article, either ninety percent of the entire tax
18 required to be paid under this section for the applicable period, or not
19 less than the tax surcharge shown on the taxpayer's return for the
20 preceding taxable year, if such preceding taxable year was a taxable
21 year of twelve months. The tax surcharge imposed by this section shall
22 be payable to the commissioner in full at the time the return is
23 required to be filed, and such tax surcharge or the balance thereof,
24 imposed on any taxpayer which ceases to exercise its franchise or be
25 subject to the tax surcharge imposed by this section shall be payable to
26 the commissioner at the time the return is required to be filed,
27 provided such tax surcharge of such domestic, foreign or alien insurance
28 corporation including life insurance corporations, as described in para-
29 graph two of subdivision (b) of section fifteen hundred [one] ten of
30 this article, shall be subject to adjustment as the circumstances may
31 require; all other tax surcharges of any such taxpayer, which pursuant
32 to the foregoing provisions of this section would otherwise be payable
33 subsequent to the time such return is required to be filed, shall never-
34 theless be payable at such time. All of the provisions of this article
35 presently applicable are applicable to the tax surcharge imposed by this
36 section.
37 § 5. The section heading of section 1510 of the tax law, as amended by
38 section 7 of part H3 of chapter 62 of the laws of 2003, is amended to
39 read as follows:
40 [Additional franchise] Franchise tax on insurance corporations.
41 § 6. Subdivision (a) of section 1510 of the tax law, as amended by
42 section 7 of part H3 of chapter 62 of the laws of 2003, is amended to
43 read as follows:
44 (a) Domestic, foreign and alien insurance corporations except life
45 insurance corporations. [Except as hereinafter provided, for taxable
46 years beginning before January first, two thousand three every] Every
47 domestic insurance corporation, every foreign insurance corporation and
48 every alien insurance corporation, other than such corporations trans-
49 acting the business of life insurance, (1) authorized to transact busi-
50 ness in this state under a certificate of authority from the superinten-
51 dent of insurance or (2) which is a risk retention group as defined in
52 subsection (n) of section five thousand nine hundred two of the insur-
53 ance law, shall, for the privilege of exercising corporate franchises or
54 for carrying on business in a corporate or organized capacity within
55 this state, and in addition to any other taxes imposed for such privi-
56 lege, pay a tax on all gross direct premiums, less return premiums ther-
S. 60--A 12 A. 160--A
1 eon, written on risks located or resident in this state. The rate of
2 tax imposed by this subdivision shall be two percent on premiums [writ-
3 ten on or after January first, nineteen hundred seventy-four and before
4 January first, nineteen hundred seventy-five, one and nine-tenths
5 percent on premiums written on or after January first, nineteen hundred
6 seventy-five and before January first, nineteen hundred seventy-six, one
7 and eight-tenths percent on premiums written on or after January first,
8 nineteen hundred seventy-six and before January first, nineteen hundred
9 seventy-eight, one and two-tenths percent on premiums written on or
10 after January first, nineteen hundred seventy-eight and before January
11 first, nineteen hundred ninety-two and one and three-tenths percent on
12 premiums written on and after such date. Provided, however, that the
13 rate of tax imposed by this subdivision on all gross direct premiums,
14 less return premiums thereon, for accident and health insurance
15 contracts shall be one and six-tenths percent for such premiums written
16 on or after January first, nineteen hundred seventy-four and before
17 January first, nineteen hundred seventy-eight, and one percent for such
18 premiums written on or after January first, nineteen hundred seventy-
19 eight].
20 § 7. Paragraph 1 of subdivision (b) of section 1510 of the tax law, as
21 amended by section 7 of part H3 of chapter 62 of the laws of 2003, is
22 amended to read as follows:
23 (1) Except as hereinafter provided, every domestic life insurance
24 corporation, and every foreign and alien life insurance corporation
25 authorized to transact business in this state under a certificate of
26 authority from the superintendent of insurance, shall, for the privilege
27 of exercising corporate franchises or for carrying on business in a
28 corporate or organized capacity within this state, and in addition to
29 any other taxes imposed for such privilege, pay a tax on all gross
30 direct premiums, less return premiums thereon, received in cash or
31 otherwise on risks resident in this state, including supplemental
32 contracts for total and permanent disability benefits and accidental
33 death benefits. The rate of such tax shall be [(i) one and six-tenths]
34 two percent on such premiums [received on or after January first, nine-
35 teen hundred seventy-four and before January first, nineteen hundred
36 seventy-eight, (ii) one percent on such premiums received on or after
37 January first, nineteen hundred seventy-eight and before January first,
38 nineteen hundred eighty-seven, (iii) eight-tenths percent on such premi-
39 ums received on or after January first, nineteen hundred eighty-seven
40 and before January first, nineteen hundred ninety-eight, and (iv)
41 seven-tenths percent on such premiums received on or after January
42 first, nineteen hundred ninety-eight].
43 § 8. Section 1510 of the tax law is amended by adding a new subdivi-
44 sion (d) to read as follows:
45 (d) In no event can the tax imposed under this section be less than
46 two hundred fifty dollars.
47 § 9. Paragraph 2 of subdivision (e) of section 1511 of the tax law, as
48 amended by section 8 of part H3 of chapter 62 of the laws of 2003, is
49 amended to read as follows:
50 (2) In no event shall the credit herein provided for be allowed in an
51 amount which will reduce the tax payable to less than the minimum tax
52 fixed by [paragraph four of subdivision (a) of section fifteen hundred
53 two of this article or section fifteen hundred two-a of this article,
54 whichever is applicable] subdivision (d) of section fifteen hundred ten
55 of this article. If, however, the amount of credit allowable under this
56 subdivision for any taxable year reduces the tax to such amount, any
S. 60--A 13 A. 160--A
1 amount of credit not deductible in such taxable year may be carried over
2 to the following year or years and may be deducted from the taxpayer's
3 tax for such year or years.
4 § 10. Subparagraph (A) of paragraph 3 and paragraph 5 of subdivision
5 (f) of section 1511 of the tax law, subparagraph (A) of paragraph 3 as
6 amended by chapter 803 of the laws of 1985 and paragraph 5 as amended by
7 section 9 of part H3 of chapter 62 of the laws of 2003, are amended to
8 read as follows:
9 (A) For each calendar year for which a credit has been authorized
10 pursuant to section seven thousand seven hundred twelve of the insurance
11 law, the commissioner of taxation and finance shall determine the total
12 tax liability of all life insurance corporations under this article,
13 [other than under section fifteen hundred five-a of this article,]
14 before the application of any credits allowed pursuant to this section,
15 for taxable years beginning in such calendar year. Such total tax
16 liability shall be published in the state register on or before the
17 thirtieth day of September of the next succeeding calendar year.
18 (5) No credit allowed pursuant to this subdivision shall reduce the
19 tax payable by any taxpayer under this article for any taxable year to
20 an amount less than the minimum tax fixed by [paragraph four of subdivi-
21 sion (a) of section fifteen hundred two of this article or section
22 fifteen hundred two-a of this article, whichever is applicable] subdivi-
23 sion (d) of section fifteen hundred ten of this article.
24 § 11. The closing paragraph of paragraph 4 and paragraph 5 of subdivi-
25 sion (g) of section 1511 of the tax law, the closing paragraph of para-
26 graph 4 as amended by section 10 and paragraph 5 as amended by section
27 11 of part H3 of chapter 62 of the laws of 2003, are amended to read as
28 follows:
29 Provided, further, however, that the credit provided for herein with
30 respect to the taxable year, and carryovers of such credit to the taxa-
31 ble year, deducted from the tax otherwise due, may not, in the aggre-
32 gate, exceed fifty percent of [(i) in the case of taxpayers subject to
33 tax under subdivision (b) of section fifteen hundred ten of this arti-
34 cle, the lesser of (I) the limitation on tax computed pursuant to subdi-
35 vision (a) of section fifteen hundred five, or (II) the greater of the
36 sum of the taxes imposed under sections fifteen hundred one and fifteen
37 hundred ten or the amount of tax computed pursuant to subdivision (b) of
38 section fifteen hundred five, or (ii) for all other insurance corpo-
39 rations,] the tax imposed under section fifteen hundred [two-a] ten of
40 this article, computed without regard to any credit provided for under
41 this article.
42 (5) The credit or carryovers of such credit allowed under this subdi-
43 vision for any taxable year shall not, in the aggregate, reduce the tax
44 due for such year to less than the minimum tax fixed by [paragraph four
45 of subdivision (a) of section fifteen hundred two of this article or by
46 section fifteen hundred two-a of this article, whichever is applicable]
47 subdivision (d) of section fifteen hundred ten of this article. Howev-
48 er, if the amount of credit or carryovers of such credit, or both,
49 allowed under this subdivision for any taxable year reduces the tax to
50 such amount, or if any part of the credit or carryovers of such credit
51 may not be deducted from the tax otherwise due by reason of the final
52 sentence in paragraph four [hereof] of this subdivision, any amount of
53 credit or carryovers of such credit thus not deductible in such taxable
54 year may be carried over to the following year or years and may be
55 deducted from the taxpayer's tax for such year or years.
S. 60--A 14 A. 160--A
1 § 12. Paragraphs 2 and 3 of subdivision (h) of section 1511 of the tax
2 law, paragraph 2 as amended by section 12 of part H3 of chapter 62 of
3 the laws of 2003 and paragraph 3 as amended by chapter 708 of the laws
4 of 1993, are amended to read as follows:
5 (2) The credit and carryover of such credit allowed under this subdi-
6 vision for any taxable year shall not, in the aggregate, reduce the tax
7 due for such year to less than the minimum fixed by [paragraph four of
8 subdivision (a) of section fifteen hundred two of this article or by
9 section fifteen hundred two-a of this article, whichever is applicable]
10 subdivision (d) of section fifteen hundred ten of this article. Howev-
11 er, if the amount of credit or carryovers of such credit, or both,
12 allowed under this subdivision for any taxable year reduces the tax to
13 such amount, or if any part of the credit or carryovers of such credit
14 may not be deducted from the tax otherwise due by reason of the final
15 sentence of this paragraph, any amount of credit or carryovers of such
16 credit thus not deductible in such taxable year may be carried over to
17 the following year or years and may be deducted from the tax for such
18 year or years. In addition, the amount of such credit, and carryovers of
19 such credit to the taxable year, deducted from the tax otherwise due may
20 not, in the aggregate, exceed fifty percent of [(i) in the case of
21 taxpayers subject to tax under subdivision (b) of section fifteen
22 hundred ten of this article, the lesser of (I) the limitation on tax
23 computed pursuant to subdivision (a) of section fifteen hundred five, or
24 (II) the greater of the sum of the taxes imposed under sections fifteen
25 hundred one and fifteen hundred ten or the amount of tax computed pursu-
26 ant to subdivision (b) of section fifteen hundred five, or (ii) for all
27 other insurance corporations,] the tax imposed under section fifteen
28 hundred [two-a] ten of this article, computed without regard to any
29 credit provided for under this article.
30 [(3) Where the stock, partnership interest or other ownership interest
31 arising from a qualified investment as described in subparagraphs (A)
32 and (B) of paragraph one of this subdivision is disposed of, the taxpay-
33 er's entire net income shall be computed, pursuant to regulations
34 promulgated by the commissioner, so as to properly reflect the reduced
35 cost thereof arising from the application of the credit provided for
36 herein.]
37 § 13. Paragraph 5 of subdivision (j) of section 1511 of the tax law,
38 as amended by section 13 of part H3 of chapter 62 of the laws of 2003,
39 is amended to read as follows:
40 (5) Carryover. The credit and carryovers of such credit allowed under
41 this subdivision for any taxable year shall not, in the aggregate,
42 reduce the tax due for such year to less than the minimum tax fixed by
43 [paragraph four of subdivision (a) of section fifteen hundred two of
44 this article or by section fifteen hundred two-a of this article, which-
45 ever is applicable] subdivision (d) of section fifteen hundred ten of
46 this article. However, if the amount of credit or carryovers of such
47 credit, or both, allowed under this subdivision for any taxable year
48 reduces the tax to such amount, then any amount of credit or carryovers
49 of such credit thus not deductible in such taxable year may be carried
50 over to the following year or years and may be deducted from the taxpay-
51 er's tax for such year or years.
52 § 14. Paragraph 3 of subdivision (k) of section 1511 of the tax law,
53 as amended by section 14 of part H3 of chapter 62 of the laws of 2003,
54 is amended to read as follows:
55 (3) No credit allowable pursuant to this subdivision shall reduce the
56 tax payable under this article to less than the minimum tax fixed by
S. 60--A 15 A. 160--A
1 [paragraph four of subdivision (a) of section fifteen hundred two of
2 this article or by section fifteen hundred two-a of this article, which-
3 ever is applicable] subdivision (d) of section fifteen hundred ten of
4 this article. If, however, the amount of credit allowable under this
5 subdivision for any taxable year reduces the tax to such amount, any
6 amount of credit not taken in such taxable year may be carried over to
7 the following year or years and may be deducted from the taxpayer's tax
8 for such year or years.
9 § 15. Subdivision 1 of section 1511 of the tax law, as amended by
10 section 15 of part H3 of chapter 62 of the laws of 2003, is amended to
11 read as follows:
12 (l) Credit for purchase of an automated external defibrillator. A
13 taxpayer shall be allowed a credit as hereinafter provided, against the
14 tax imposed by this article for the purchase, other than for resale, of
15 an automated external defibrillator, as such term is defined in section
16 three thousand-b of the public health law. The amount of the credit
17 shall be the cost to the taxpayer of automated external defibrillators
18 purchased during the taxable year, such credit not to exceed five
19 hundred dollars with respect to each unit purchased. The credit allowed
20 under this subdivision for any taxable year shall not reduce the tax due
21 for such year to less than the minimum tax fixed by [paragraph four of
22 subdivision (a) of section fifteen hundred two of this article or by
23 section fifteen hundred two-a of this article, whichever is applicable]
24 subdivision (d) of section fifteen hundred ten of this article.
25 § 16. Paragraph 2 of subdivision (m) of section 1511 of the tax law,
26 as amended by section 16 of part H3 of chapter 62 of the laws of 2003,
27 is amended to read as follows:
28 (2) In no event shall the credit herein provided for be allowed in an
29 amount which will reduce the tax payable to less than the minimum tax
30 fixed by [paragraph four of subdivision (a) of section fifteen hundred
31 two of this article or by section fifteen hundred two-a of this article,
32 whichever is applicable] subdivision (d) of section fifteen hundred ten
33 of this article. If, however, the amount of credit allowable under this
34 subdivision for any taxable year reduces the tax to such amount, any
35 amount of credit not deductible in such taxable year may be carried over
36 to the following year or years and may be deducted from the taxpayer's
37 tax for such year or years.
38 § 17. Paragraph 2 of subdivision (n) of section 1511 of the tax law,
39 as amended by section 17 of part H3 of chapter 62 of the laws of 2003,
40 is amended to read as follows:
41 (2) Application of credit. The credit and carryovers of such credit
42 allowed under this subdivision for any taxable year shall not, in the
43 aggregate, reduce the tax due for such year to less than the minimum tax
44 fixed by [paragraph four of subdivision (a) of section fifteen hundred
45 two of this article or by section fifteen hundred two-a of this article,
46 whichever is applicable] subdivision (d) of section fifteen hundred ten
47 of this article. However, if the amount of credit or carryovers of such
48 credit, or both, allowed under this subdivision for any taxable year
49 reduces the tax to such amount, then any amount of credit or carryovers
50 of such credit thus not deductible in such taxable year may be carried
51 over to the following year or years and may be deducted from the taxpay-
52 er's tax for such year or years.
53 § 18. Paragraph 2 of subdivision (o) of section 1511 of the tax law,
54 as amended by section 18 of part H3 of chapter 62 of the laws of 2003,
55 is amended to read as follows:
S. 60--A 16 A. 160--A
1 (2) Carryover. The credit and carryovers of such credit allowed under
2 this subdivision for any taxable year shall not, in the aggregate,
3 reduce the tax due for such year to less than the minimum tax fixed by
4 [paragraph four of subdivision (a) of section fifteen hundred two of
5 this article or by section fifteen hundred two-a of this article, which-
6 ever is applicable] subdivision (d) of section fifteen hundred ten of
7 this article. However, if the amount of credit or carryovers of such
8 credit, or both, allowed under this subdivision for any taxable year
9 reduces the tax to such amount, then any amount of credit or carryovers
10 of such credit thus not deductible in such taxable year may be carried
11 over to the following year or years and may be deducted from the taxpay-
12 er's tax for such year or years.
13 § 19. Paragraph 2 of subdivision (p) of section 1511 of the tax law,
14 as amended by section 19 of part H3 of chapter 62 of the laws of 2003,
15 is amended to read as follows:
16 (2) Application of credit. The credit allowed under this subdivision
17 for any taxable year shall not reduce the tax due for such year to less
18 than the minimum tax fixed by [paragraph four of subdivision (a) of
19 section fifteen hundred two of this article or by section fifteen
20 hundred two-a of this article, whichever is applicable] subdivision (d)
21 of section fifteen hundred ten of this article. However, if the amount
22 of credit allowed under this subdivision for any taxable year reduces
23 the tax to such amount, then any amount of credit thus not deductible in
24 such taxable year shall be treated as an overpayment of tax to be cred-
25 ited or refunded in accordance with the provisions of section ten
26 hundred eighty-six of this chapter. Provided, however, the provisions of
27 subsection (c) of section ten hundred eighty-eight of this chapter
28 notwithstanding, no interest shall be paid thereon.
29 § 20. Paragraph 4 of subdivision (q) of section 1511 of the tax law,
30 as amended by section 20 of part H3 of chapter 62 of the laws of 2003,
31 is amended to read as follows:
32 (4) Except as otherwise provided in this paragraph, the credit allowed
33 under this subdivision for any taxable year shall not reduce the tax due
34 for such year to less than the amount fixed as a minimum tax by [para-
35 graph four of subdivision (a) of section fifteen hundred two of this
36 article or by section fifteen hundred two-a of this article, whichever
37 is applicable] subdivision (d) of section fifteen hundred ten of this
38 article. However, if the amount of credit allowable under this subdivi-
39 sion for any taxable year reduces the tax to such amount, any amount of
40 credit allowed for a taxable year may be carried over to the fifteen
41 taxable years next following such taxable year and may be deducted from
42 the taxpayer's tax for such year or years. In lieu of such carryover,
43 any such taxpayer which qualifies as a new business under paragraph
44 seven of this subdivision may elect to treat the amount of such carry-
45 over as an overpayment of tax to be credited or refunded in accordance
46 with the provisions of section one thousand eighty-six of this chapter,
47 provided, however, the provisions of subsection (c) of section one thou-
48 sand eighty-eight of this chapter notwithstanding no interest shall be
49 paid thereon.
50 § 21. Paragraph 2 of subdivision (r) of section 1511 of the tax law,
51 as amended by section 21 of part H3 of chapter 62 of the laws of 2003,
52 is amended to read as follows:
53 (2) Application of credit. The credit allowed under this subdivision
54 for any taxable year shall not reduce the tax due for such year to less
55 than the minimum tax fixed by [paragraph four of subdivision (a) of
56 section fifteen hundred two of this article or by section fifteen
S. 60--A 17 A. 160--A
1 hundred two-a of this article, whichever is applicable] subdivision (d)
2 of section fifteen hundred ten of this article. However, if the amount
3 of credit allowed under this subdivision for any taxable year reduces
4 the tax to such amount, then any amount of credit thus not deductible in
5 such taxable year shall be treated as an overpayment of tax to be cred-
6 ited or refunded in accordance with the provisions of section ten
7 hundred eighty-six of this chapter. Provided, however, the provisions of
8 subsection (c) of section ten hundred eighty-eight of this chapter
9 notwithstanding, no interest shall be paid thereon.
10 § 22. Paragraph 2 of subdivision (s) of section 1511 of the tax law,
11 as amended by section 22 of part H3 of chapter 62 of the laws of 2003,
12 is amended to read as follows:
13 (2) Application of credit. The credit allowed under this subdivision
14 for any taxable year shall not reduce the tax due for such year to less
15 than the minimum tax fixed by [paragraph four of subdivision (a) of
16 section fifteen hundred two of this article or by section fifteen
17 hundred two-a of this article, whichever is applicable] subdivision (d)
18 of section fifteen hundred ten of this article.
19 § 23. Paragraph 2 of subdivision (u) of section 1511 of the tax law,
20 as added by section 11 of part H of chapter 1 of the laws of 2003, is
21 amended to read as follows:
22 (2) Application of credit. The credit allowed under this subdivision
23 for any taxable year shall not reduce the tax due for such year to less
24 than the minimum fixed by [paragraph four of subdivision (a) of section
25 fifteen hundred two of this article] subdivision (d) of section fifteen
26 hundred ten of this article. However, if the amount of credits allowed
27 under this subdivision for any taxable year reduces the tax to such
28 amount, any amount of credit thus not deductible in such taxable year
29 shall be treated as an overpayment of tax to be credited or refunded in
30 accordance with the provisions of section ten hundred eighty-six of this
31 chapter. Provided, however, the provisions of subsection (c) of section
32 ten hundred eighty-eight of this chapter notwithstanding, no interest
33 shall be paid thereon.
34 § 24. Paragraph 2 of subdivision (v) of section 1511 of the tax law,
35 as added by section 18 of part H of chapter 1 of the laws of 2003, is
36 amended to read as follows:
37 (2) Application of credit. The credit allowed under this subdivision
38 for any taxable year shall not reduce the tax due for such year to less
39 than the minimum tax fixed by [paragraph four of subdivision (a) of
40 section fifteen hundred two of this article] subdivision (d) of section
41 fifteen hundred ten of this article. However, if the amount of credit
42 allowed under this subdivision for any taxable year reduces the tax to
43 such amount, any amount of credit thus not deductible in such taxable
44 year shall be treated as an overpayment of tax to be credited or
45 refunded in accordance with the provisions of section ten hundred eight-
46 y-six of this chapter. Provided, however, the provisions of subsection
47 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
48 no interest shall be paid thereon.
49 § 25. Paragraph 2 of subdivision (w) of section 1511 of the tax law,
50 as added by section 29 of part H of chapter 1 of the laws of 2003, is
51 amended to read as follows:
52 (2) Application of credit. The credit allowed under this subdivision
53 for any taxable year shall not reduce the tax due for such year to less
54 than the minimum fixed by [paragraph four of subdivision (a) of section
55 fifteen hundred two or section fifteen hundred two-a of this article]
56 subdivision (d) of section fifteen hundred ten of this article. However,
S. 60--A 18 A. 160--A
1 if the amount of credits allowed under this subdivision for any taxable
2 year reduces the tax to such amount, any amount of credit thus not
3 deductible in such taxable year shall be treated as an overpayment of
4 tax to be credited or refunded in accordance with the provisions of
5 section one thousand eighty-six of this chapter. Provided, however, the
6 provisions of subsection (c) of section one thousand eighty-eight of
7 this chapter notwithstanding, no interest shall be paid thereon.
8 § 26. Paragraph 2 of subdivision (x) of section 1511 of the tax law,
9 as added by chapter 537 of the laws of 2005, is amended to read as
10 follows:
11 (2) Application of credit. The credit allowed under this subdivision
12 for any taxable year shall not reduce the tax due for such year to less
13 than the minimum fixed by [paragraph four of subdivision (a) of section
14 fifteen hundred two or section fifteen hundred two-a of this article]
15 subdivision (d) of section fifteen hundred ten of this article. However,
16 if the amount of credits allowed under this subdivision for any taxable
17 year reduces the tax to such amount, any amount of credit thus not
18 deductible in such taxable year shall be treated as an overpayment of
19 tax to be credited or refunded in accordance with the provisions of
20 section one thousand eighty-six of this chapter. Provided, however, the
21 provisions of subsection (c) of section one thousand eighty-eight of
22 this chapter notwithstanding, no interest shall be paid thereon.
23 § 27. Paragraph 3 of subdivision (x) of section 1511 of the tax law,
24 as added by chapter 446 of the laws of 2005, is amended to read as
25 follows:
26 (3) Application of credit. The credit allowed under this subdivision
27 for any taxable year shall not reduce the tax due for such year to less
28 than the minimum tax fixed by [paragraph four of subdivision (a) of
29 section fifteen hundred two of this article or by section fifteen
30 hundred two-a of this article, whichever is applicable] subdivision (d)
31 of section fifteen hundred ten of this article. However, if the amount
32 of credit allowed under this subdivision for any taxable year reduces
33 the tax to such amount, any amount of credit thus not deductible in such
34 taxable year may be carried over to the following year or years and may
35 be deducted from the taxpayer's tax for such year or years.
36 § 28. Subdivision (b) of section 1513 of the tax law, as amended by
37 section 25 of part H3 of chapter 62 of the laws of 2003, is amended to
38 read as follows:
39 (b) Definition of estimated tax and estimated tax surcharge. The terms
40 "estimated tax" and "estimated tax surcharge" mean the amounts which the
41 taxpayer estimates to be the taxes imposed by [sections fifteen hundred
42 one, fifteen hundred two-a and] section fifteen hundred ten of this
43 article or the tax surcharge imposed by section fifteen hundred five-a
44 of this article, respectively, for the current taxable year, less the
45 sum of any credits which it estimates to be allowable against such taxes
46 or tax surcharge, respectively.
47 § 29. Subdivisions (e) and (f) of section 1514 of the tax law, subdi-
48 vision (e) as amended by chapter 166 of the laws of 1991 and subdivision
49 (f) as amended by section 26 of part H3 of chapter 62 of the laws of
50 2003, are amended to read as follows:
51 (e) Interest on certain installments based on the preceding year's
52 tax. Notwithstanding the provisions of section one thousand eighty-
53 eight of this chapter or section sixteen of the state finance law, if an
54 amount paid pursuant to subdivision (a) of this section exceeds the tax
55 or tax surcharge, respectively, shown on the return required to be filed
56 by the taxpayer for the taxable year during which such amount was paid,
S. 60--A 19 A. 160--A
1 interest shall be allowed and paid on the amount by which the amount so
2 paid pursuant to such subdivision (a) exceeds such tax or tax surcharge,
3 at the overpayment rate set by the commissioner of taxation and finance
4 pursuant to subdivision (e) of section one thousand ninety-six or, if no
5 rate is set, at the rate of six percent per annum, from the date of
6 payment of the amount so paid pursuant to such subdivision (a) to the
7 fifteenth day of the third month following the close of the taxable
8 year, provided, however, that no interest shall be allowed or paid under
9 this subdivision if the amount thereof is less than one dollar [or if
10 such interest becomes payable solely because of a loss described in
11 paragraph four of subdivision (b) of section fifteen hundred three].
12 (f) The preceding year's tax defined. As used in this section, "the
13 preceding year's tax" means[, for taxpayers subject to tax under subdi-
14 vision (b) of section fifteen hundred ten of this article, the taxes
15 imposed upon the taxpayer by sections fifteen hundred one and fifteen
16 hundred ten of this article from the preceding taxable year or as other-
17 wise determined by subdivision (b) of section fifteen hundred five of
18 this article, and for taxpayers subject to tax under section fifteen
19 hundred two-a of this article, the tax imposed upon the taxpayer by such
20 section fifteen hundred two-a of this article from the preceding year,]
21 the tax imposed on the taxpayer by this article without regard to the
22 tax surcharge imposed by section fifteen hundred five-a, or for purposes
23 of computing the first installment of estimated tax when an application
24 has been filed for extension of the time for filing the return required
25 to be filed for such preceding taxable year, the amount properly esti-
26 mated pursuant to paragraph one of subdivision (b) of section fifteen
27 hundred sixteen of this article as the tax imposed upon the taxpayer for
28 such taxable year.
29 § 30. Paragraph 1 of subdivision (e) of section 1515 of the tax law,
30 as amended by chapter 770 of the laws of 1992, is amended to read as
31 follows:
32 (1) [If] For taxable years beginning before January first, two thou-
33 sand nine, if the amount of the life insurance company taxable income
34 (which shall include, in the case of a stock life insurance company
35 which has an existing policyholders surplus account, the amount of
36 direct and indirect distributions during the taxable year to sharehold-
37 ers from such account), taxable income of a partnership or taxable
38 income, as the case may be, or alternative minimum taxable income for
39 any year of any taxpayer as returned to the United States treasury
40 department is changed or corrected by the commissioner of internal
41 revenue or other officer of the United States or other competent author-
42 ity, such taxpayer shall report such change or corrected taxable income
43 or alternative minimum taxable income within ninety days (or one hundred
44 twenty days, in the case of a taxpayer making a combined return under
45 this article for such year) after the final determination of such change
46 or correction or as required by the commissioner, and shall concede the
47 accuracy of such determination or state wherein it is erroneous. Any
48 taxpayer filing an amended return with such department shall also file
49 within ninety days (or one hundred twenty days, in the case of a taxpay-
50 er making a combined return under this article for such year) thereafter
51 an amended return with the commissioner which shall contain such infor-
52 mation as the commissioner shall require. The allowance of a tentative
53 carryback adjustment based upon a net operating loss carryback or net
54 capital loss carryback pursuant to section sixty-four hundred eleven of
55 the internal revenue code or upon an operations loss carryback pursuant
S. 60--A 20 A. 160--A
1 to section eight hundred ten of the internal revenue code, shall be
2 treated as a final determination for purposes of this subdivision.
3 § 31. Subdivisions (f) and (g) of section 1515, subdivision (g) of
4 section 1518 and section 1520 of the tax law are REPEALED.
5 § 32. Paragraph 1, clause (ii) of subparagraph (B) of paragraph 2 and
6 subparagraph (A) of paragraph 3 of subdivision (f) of section 16 of the
7 tax law, as amended by section 14 of part CC of chapter 85 of the laws
8 of 2002, are amended to read as follows:
9 (1) General. The tax factor shall be, in the case of article nine-A of
10 this chapter, the larger of the amounts of tax determined for the taxa-
11 ble year under paragraphs (a) and (c) of subdivision one of section two
12 hundred ten of such article. The tax factor shall be, in the case of
13 article twenty-two of this chapter, the tax determined for the taxable
14 year under subsections (a) through (d) of section six hundred one of
15 such article. The tax factor shall be, in the case of article thirty-two
16 of this chapter, the larger of the amounts of tax determined for the
17 taxable year under subsection (a) and paragraph two of subsection (b) of
18 section fourteen hundred fifty-five of such article. The tax factor
19 shall be, in the case of article thirty-three of this chapter, the
20 [larger of the amounts] amount of tax determined for the taxable year
21 under [paragraphs one and three of] subdivision (a) or (b) of section
22 fifteen hundred [two] ten of such article.
23 (ii) For purposes of article nine-A[,] or thirty-two [or thirty-three]
24 of this chapter, the term "partner's income from the partnership" means
25 partnership items of income, gain, loss and deduction, and New York
26 modifications thereto, entering into entire net income, minimum taxable
27 income, alternative entire net income or entire net income plus compen-
28 sation and the term "partner's entire income" means entire net income,
29 minimum taxable income, alternative entire net income or entire net
30 income plus compensation, allocated within the state. For purposes of
31 article twenty-two of this chapter, the term "partner's income from the
32 partnership" means partnership items of income, gain, loss and
33 deduction, and New York modifications thereto, entering into New York
34 adjusted gross income, and the term "partner's entire income" means New
35 York adjusted gross income.
36 (A) Where the taxpayer is a qualified empire zone enterprise and is
37 required or permitted to make a return or report on a combined basis
38 under article nine-A[,] or thirty-two [or thirty-three] of this chapter,
39 the taxpayer's tax factor shall be the amount determined in paragraph
40 one of this subdivision which is attributable to the income of the qual-
41 ified empire zone enterprise. Such attribution shall be made in accord-
42 ance with the ratio of the qualified empire zone enterprise's income
43 allocated within the state to the combined group's income, or in accord-
44 ance with such other methods as the commissioner may prescribe as
45 providing an apportionment which reasonably reflects the portion of the
46 combined group's tax attributable to the income of the qualified empire
47 zone enterprise. In no event may the ratio so determined exceed 1.0.
48 § 33. Subparagraph (A) of paragraph 3 of subsection (d) of section
49 1085 of the tax law, as amended by chapter 170 of the laws of 1994, is
50 amended to read as follows:
51 (A) General. An amount equal to ninety-one percent of the tax for the
52 taxable year computed on all items entering into the computation of the
53 tax or taxes of the taxpayer for the taxable year under article nine,
54 nine-A[,] or thirty-two [or thirty-three] of this chapter. For purposes
55 of computing the tax, all items of receipts, income and expenses shall
56 be placed on an annualized basis--
S. 60--A 21 A. 160--A
1 (i) for the first three months of the taxable year, in the case of the
2 installment required to be paid in the sixth month,
3 (ii) for the first six months of the taxable year, in the case of the
4 installment required to be paid in the ninth month, and
5 (iii) for the first nine months of the taxable year, in the case of
6 the installment required to be paid in the twelfth month.
7 § 34. Clause (i) of subparagraph (A) of paragraph 4 of subsection (d)
8 of section 1085 of the tax law, as amended by chapter 57 of the laws of
9 1993, is amended to read as follows:
10 (i) take the items entering into the computation of the tax or taxes
11 of the taxpayer for the taxable year under article nine, nine-A[,] or
12 thirty-two [or thirty-three] of this chapter, for all months during the
13 taxable year preceding the filing month,
14 § 35. Paragraph 1 of subsection (e) of section 1085 of the tax law, as
15 amended by section 28 of part H3 of chapter 62 of the laws of 2003, is
16 amended to read as follows:
17 (1) Paragraphs (1) and (2) of subsection (d) of this section shall not
18 apply in the case of any corporation (or any predecessor corporation)
19 which had entire net income, or the portion thereof allocated within the
20 state, of one million dollars or more for any taxable year during the
21 three taxable years immediately preceding the taxable year involved;
22 provided, however, that in the case of a corporation subject to tax
23 under section fifteen hundred [two-a] ten of this chapter, paragraphs
24 (1) and (2) of subsection (d) of this section shall not apply if [such
25 corporation had entire net income, or the portion thereof allocated
26 within the state, of one million dollars or more for any of the three
27 taxable years immediately preceding the taxable year involved, or if]
28 the direct premiums subject to tax under section fifteen hundred [two-a]
29 ten of this chapter of the corporation for any of such three preceding
30 taxable years [beginning on or after January first, two thousand three]
31 equals or exceeds three million seven hundred fifty thousand dollars.
32 § 36. This act shall take effect immediately and apply to taxable
33 years beginning on or after January 1, 2009; provided however, that
34 section four of this act shall apply to taxable years ending after
35 December 31, 2008.
36 PART E
37 Section 1. The tax law is amended by adding a new section 171-t to
38 read as follows:
39 § 171-t. Reciprocal offset agreements with the United States or other
40 states. (1) For the purposes of this section, the definitions provided
41 for in section one hundred seventy-one-n of this article apply together
42 with the following:
43 (a) "Claimant" means any state or the United States that enters into a
44 reciprocal agreement under this section or requests application of a
45 vendor payment or an overpayment to a debt.
46 (b) "Debt" means a "tax debt" as defined in section one hundred seven-
47 ty-one-n of this article and any other past due legally enforceable
48 obligation owed to a state or the United States, which arises from (i)
49 an enforceable judgment of a court of competent jurisdiction that is no
50 longer subject to judicial review, or (ii) an enforceable determination
51 of an administrative body that is no longer subject to administrative or
52 judicial review, or (iii) a determination that has become final or
53 finally and irrevocably fixed and no longer subject to administrative or
54 judicial review.
S. 60--A 22 A. 160--A
1 (c) "Debtor" means a person who owes a debt.
2 (d) "Person" has the same meaning as that term has in subdivision (a)
3 of section eleven hundred one of this chapter.
4 (e) "Vendor payment" means any payment, other than an overpayment,
5 made by a state or the United States to any person, and includes but is
6 not limited to any expense reimbursement to an employee of the state or
7 the United States; but does not include a person's salary, wages or
8 pension.
9 (2) The commissioner may, in his or her discretion, enter into a
10 collection and offset agreement with another state or with the United
11 States secretary of the treasury through the internal revenue service or
12 the financial management service of the department of the treasury of
13 the United States under which the commissioner, on behalf of the state
14 of New York, may, in his or her discretion, agree to pay to a claimant
15 owed a debt by a taxpayer or other person the whole or part of an over-
16 payment or a vendor payment owed by the state to that taxpayer or other
17 person, provided the claimant grants substantially similar privileges to
18 this state. However, the United States will not be required under this
19 section to offset tax overpayments owed by it except to the extent that
20 it agrees to do so. An agreement with the claimant must specify that a
21 taxpayer or any person owed a vendor payment will receive thirty days
22 advance written notice of the offset and will be provided with an oppor-
23 tunity to present written or oral evidence about the application of the
24 overpayment or vendor payment to the debt. A proceeding for judicial
25 review of the decision in the manner provided by article seventy-eight
26 of the civil practice law and rules may be commenced by a taxpayer or a
27 person owed a vendor payment within four months after a copy of a deci-
28 sion adverse to the taxpayer or that person is mailed to the taxpayer or
29 that person. Article forty of this chapter does not apply to any hearing
30 or proceeding on whether an overpayment or vendor payment may be applied
31 to a debt under this section. The remedy provided by this section for
32 review of hearings and proceedings is the exclusive remedy available to
33 judicially determine whether an overpayment or vendor payment may be
34 applied to a debt under this section. The amount of a debt remaining due
35 as certified by a claimant will be prima facie evidence of the correct
36 amount of a debt.
37 (3) The commissioner will calculate the amount of an overpayment and
38 interest thereon that is to be credited against the amount of a past due
39 legally enforceable debt owed by a taxpayer which is certified to the
40 department for collection under this section using the rules in subdivi-
41 sion five of section one hundred seventy-one-f of this article. If a
42 taxpayer or a person owes more than one debt which is certified to the
43 commissioner for collection under this section, any overpayment or
44 vendor payment will be credited against the debts in the order in which
45 the debts accrued. A debt will be considered to have accrued at the time
46 at which the debt became past due.
47 (4) Notwithstanding any other law, the commissioner is authorized to
48 release to a claimant taxpayer information for purposes of implementing
49 and administering an agreement entered into between the claimant and
50 this state under this section.
51 § 2. Subdivision 2 of section 171-p of the tax law, as added by
52 section 1 of part BB-1 of chapter 57 of the laws of 2008, is amended to
53 read as follows:
54 (2) The commissioner may implement procedures under which any cost or
55 fee imposed or charged by the United States or any state, with respect
56 to payment or remittance of a taxpayer's overpayment to satisfy a tax
S. 60--A 23 A. 160--A
1 debt of the taxpayer, must not be credited by the commissioner to
2 payment or satisfaction of the tax debt, must be deemed to be part of
3 the taxpayer's tax debt, and must be eligible for offset against the
4 taxpayer's overpayment to the extent permitted by law. The commissioner
5 may also implement procedures under which any cost or fee imposed or
6 charged by the United States or any other state, with respect to any
7 other payment or remittance of a taxpayer's overpayment or a vendor
8 payment to satisfy a debt of the taxpayer or the person who is owed the
9 vendor payment as authorized by section one hundred seventy-one-t of
10 this article, must not be credited by the state of New York to payment
11 or satisfaction of the debt, must be deemed to be part of the taxpayer's
12 or person's debt, and must be eligible for offset against the taxpayer's
13 overpayment or the person's vendor payment to the extent permitted by
14 law.
15 § 3. Paragraph (c) of subdivision 1 of section 171-n of the tax law,
16 as added by section 2 of part O of chapter 61 of the laws of 2005, is
17 amended to read as follows:
18 (c) "tax debt" means any past due, legally enforceable tax obligation
19 owed any other state administering that tax, which arises from (i) an
20 enforceable judgment of a court of competent jurisdiction which is no
21 longer subject to judicial review, or (ii) an enforceable determination
22 of an administrative body which is no longer subject to administrative
23 or judicial review, or (iii) an assessment or determination (including
24 self-assessment or self-assessed determination) which has become final
25 or finally and irrevocably fixed and no longer subject to administrative
26 or judicial review[, and which has not been delinquent for more than ten
27 years]; and
28 § 4. This act shall take effect immediately.
29 PART F
30 Section 1. Section 2 of the tax law is amended by adding a new subdi-
31 vision 11 to read as follows:
32 11. The term "overcapitalized captive insurance company" means an
33 entity that is treated as an association taxable as a corporation under
34 the internal revenue code (a) more than fifty percent of the voting
35 stock of which is owned or controlled, directly or indirectly, by a
36 single entity that is treated as an association taxable as a corporation
37 under the internal revenue code and not exempt from federal income tax;
38 (b) that is licensed as a captive insurance company under the laws of
39 this state or another jurisdiction; (c) whose business includes provid-
40 ing, directly and indirectly, insurance or reinsurance covering the
41 risks of its parent and/or members of its affiliated group; and (d)
42 fifty percent or less of whose gross receipts for the taxable year
43 consist of premiums. For purposes of this subdivision, "affiliated
44 group" has the same meaning as that term is given in section 1504 of the
45 internal revenue code, except that the term "common parent corporation"
46 in that section is deemed to mean any person, as defined in section 7701
47 of the internal revenue code; references to "at least eighty percent" in
48 section 1504 of the internal revenue code are to be read as "fifty
49 percent or more;" section 1504 of the internal revenue code is to be
50 read without regard to the exclusions provided for in subsection (b) of
51 that section; "premiums" has the same meaning as that term is given in
52 paragraph one of subdivision (c) of section fifteen hundred ten of this
53 chapter, except that it includes consideration for annuity contracts and
54 excludes any part of the consideration for insurance, reinsurance or
S. 60--A 24 A. 160--A
1 annuity contracts that do not provide bona fide insurance, reinsurance
2 or annuity benefits; and "gross receipts" includes the amounts included
3 in gross receipts for purposes of section 501(c) (15) of the internal
4 revenue code, except that those amounts also include all premiums as
5 defined in this subdivision.
6 § 2. Paragraph (a) of subdivision 4 of section 211 of the tax law is
7 amended by adding a new subparagraph 7 to read as follows:
8 (7) (i) For purposes of this subparagraph, the term "closest control-
9 ling stockholder" means the corporation that indirectly owns or controls
10 over fifty percent of the voting stock of an overcapitalized captive
11 insurance company; is subject to tax under this article or article thir-
12 ty-two of this chapter, or is otherwise required to be included in a
13 combined return or report under this article or article thirty-two of
14 this chapter; and is the fewest tiers of corporations away in the owner-
15 ship structure from the overcapitalized captive insurance company. The
16 commissioner is authorized to prescribe by regulation or published guid-
17 ance the criteria for determining the closest controlling stockholder.
18 (ii) An overcapitalized captive insurance company must be included in
19 a combined report with the corporation that directly owns or controls
20 over fifty percent of the voting stock of the overcapitalized captive
21 insurance company if that corporation is subject to tax or required to
22 be included in a combined report under this article.
23 (iii) If over fifty percent of the voting stock of an overcapitalized
24 captive insurance company is not directly owned or controlled by a
25 corporation that is subject to tax or required to be included in a
26 combined report under this article, then the overcapitalized captive
27 insurance company must be included in a combined return or report with
28 the corporation that is the closest controlling stockholder of the over-
29 capitalized captive insurance company. If the closest controlling stock-
30 holder of the overcapitalized captive insurance company is subject to
31 tax or otherwise required to be included in a combined report under this
32 article, then the overcapitalized captive insurance company must be
33 included in a combined report under this article.
34 (iv) If the corporation that directly owns or controls the voting
35 stock of the overcapitalized captive insurance company is described in
36 subparagraph two, three, or five of this paragraph as a corporation not
37 permitted to make a combined report, then the provisions in clause (iii)
38 of this subparagraph must be applied to determine the corporation in
39 whose combined return or report the overcapitalized captive insurance
40 company should be included. If, under clause (iii) of this subparagraph,
41 the corporation that is the closest controlling stockholder of the over-
42 capitalized captive insurance company is described in subparagraph two,
43 three or five of this paragraph as a corporation not permitted to make a
44 combined return, then that corporation is deemed not to be in the owner-
45 ship structure of the overcapitalized captive insurance company, and the
46 closest controlling stockholder will be determined without regard to
47 that corporation.
48 (v) If an overcapitalized captive insurance company is required under
49 this subparagraph to be included in a combined report with another
50 corporation, and that other corporation is also required to be included
51 in a combined report with another related corporation or corporations
52 under this paragraph, then the overcapitalized captive insurance company
53 must be included in that combined report with those corporations.
54 (vi) If an overcapitalized captive insurance company is not required
55 to be included in a combined report with another corporation under
56 clause (ii) or (iii) of this subparagraph, or in a combined return under
S. 60--A 25 A. 160--A
1 the provisions of subparagraph (v) of paragraph two of subsection (f) of
2 section fourteen hundred sixty-two of this chapter, then the overcapi-
3 talized captive insurance company is subject to the opening provisions
4 of this paragraph and the provisions of subparagraph four of this para-
5 graph. The overcapitalized captive insurance company must be included in
6 a combined report under this article with another corporation if either
7 the substantial intercorporate transactions requirement in the opening
8 provisions of this paragraph or the inter-company transactions or agree-
9 ment, understanding, arrangement or transaction requirement of subpara-
10 graph four of this paragraph is satisfied, and both more than fifty
11 percent of the voting stock of the overcapitalized captive insurance
12 company and substantially all of the capital stock of that other corpo-
13 ration are owned and controlled, directly or indirectly, by the same
14 corporation.
15 § 3. Subparagraph 1 of paragraph (b) of subdivision 4 of section 211
16 of the tax law, as amended by section 4 of part FF-1 of chapter 57 of
17 the laws of 2008, is amended to read as follows:
18 (1) Tax. (i) In the case of a combined report the tax shall be meas-
19 ured by the combined entire net income, combined minimum taxable income,
20 combined pre-nineteen hundred ninety minimum taxable income or combined
21 capital, of all the corporations included in the report, including any
22 captive REIT [or], captive RIC or overcapitalized captive insurance
23 company; provided, however, in no event shall the tax measured by
24 combined capital exceed the limitation provided for in paragraph (b) of
25 subdivision one of section two hundred ten of this article.
26 (ii) In the case of a captive REIT or captive RIC required under this
27 subdivision to be included in a combined report, entire net income must
28 be computed as required under subdivision five (in the case of a captive
29 REIT) or subdivision seven (in the case of a captive RIC) of section two
30 hundred nine of this article. However, the deduction under the internal
31 revenue code for dividends paid by the captive REIT or captive RIC to
32 any member of the affiliated group that includes the corporation that
33 directly or indirectly owns over fifty percent of the voting stock of
34 the captive REIT or captive RIC shall not be allowed for taxable years
35 beginning on or after January first, two thousand eight. The term
36 "affiliated group" means "affiliated group" as defined in section
37 fifteen hundred four of the internal revenue code, but without regard to
38 the exceptions provided for in subsection (b) of that section.
39 (iii) In the case of an overcapitalized captive insurance company
40 required under this subdivision to be included in a combined report,
41 entire net income must be computed as required by subdivision nine of
42 section two hundred eight of this article.
43 § 4. Subsection (d) of section 1452 of the tax law, as amended by
44 section 5 of part FF-1 of chapter 57 of the laws of 2008, is amended to
45 read as follows:
46 (d) Corporations taxable under article nine-A. Notwithstanding the
47 provisions of this article, all corporations of classes now or hereto-
48 fore taxable under article nine-A of this chapter shall continue to be
49 taxable under article nine-A, except: (1) corporations organized under
50 article five-A of the banking law; (2) corporations subject to article
51 three-A of the banking law, or registered under the federal bank holding
52 company act of nineteen hundred fifty-six, as amended, or registered as
53 a savings and loan holding company (but excluding a diversified savings
54 and loan holding company) under the federal national housing act, as
55 amended, which make a combined return under the provisions of subsection
56 (f) of section fourteen hundred sixty-two; (3) banking corporations
S. 60--A 26 A. 160--A
1 described in paragraph nine of subsection (a) of this section; [and] (4)
2 any captive REIT or captive RIC that is required to be included in a
3 combined return under the provisions of subsection (f) of section four-
4 teen hundred sixty-two of this article; and (5) any overcapitalized
5 captive insurance company required to be included in a combined return
6 under subsection (f) of section fourteen hundred sixty-two of this arti-
7 cle. Provided, however, that a corporation described in paragraph three
8 of this subsection which was subject to the tax imposed by article
9 nine-A of this chapter for its taxable year ending during nineteen
10 hundred eighty-four may, on or before the due date for filing its return
11 (determined with regard to extensions) for its taxable year ending
12 during nineteen hundred eighty-five, make a one time election to contin-
13 ue to be taxable under such article nine-A. Such election shall continue
14 to be in effect until revoked by the taxpayer. In no event shall such
15 election or revocation be for a part of a taxable year.
16 § 5. Paragraph 4 of subsection (m) of section 1452 of the tax law, as
17 added by section 6 of part FF-1 of chapter 57 of the laws of 2008, is
18 amended to read as follows:
19 (4) The provisions of this subsection shall not apply to a captive
20 REIT [or], a captive RIC or an overcapitalized captive insurance
21 company.
22 § 6. Paragraph 2 of subsection (f) of section 1462 of the tax law is
23 amended by adding a new subparagraph (vi) to read as follows:
24 (vi) (A) For purposes of this subparagraph, the term "closest control-
25 ling stockholder" means the corporation that indirectly owns or controls
26 over fifty percent of the voting stock of an overcapitalized captive
27 insurance company, is subject to tax under this article or article
28 nine-A of this chapter or otherwise required to be included in a
29 combined return under this article or article nine-A of this chapter,
30 and is the fewest tiers of corporations away in the ownership structure
31 from the overcapitalized captive insurance company. The commissioner is
32 authorized to prescribe by regulation or published guidance the criteria
33 for determining the closest controlling stockholder.
34 (B) An overcapitalized captive insurance company must be included in a
35 combined return with the banking corporation or bank holding company
36 that directly owns or controls over fifty percent of the voting stock of
37 the overcapitalized captive insurance company if that banking corpo-
38 ration or bank holding company is subject to tax or required to be
39 included in a combined return under this article.
40 (C) If over fifty percent of the voting stock of an overcapitalized
41 captive insurance company is not directly owned or controlled by a bank-
42 ing corporation or bank holding company that is subject to tax or
43 required to be included in a combined return under this article, then
44 the overcapitalized captive insurance company must be included in a
45 combined return or report with the corporation that is the closest
46 controlling stockholder of the overcapitalized captive insurance compa-
47 ny. If the closest controlling stockholder of the overcapitalized
48 captive insurance company is a banking corporation or bank holding
49 company that is subject to tax or otherwise required to be included in a
50 combined return under this article, then the overcapitalized captive
51 insurance company must be included in a combined return under this arti-
52 cle.
53 (D) If the corporation that directly owns or controls the voting stock
54 of the overcapitalized captive insurance company is described in subpar-
55 agraph (ii) or (iv) of paragraph four of this subsection as a corpo-
56 ration not permitted to make a combined return, then the provisions in
S. 60--A 27 A. 160--A
1 clause (C) of this subparagraph must be applied to determine the corpo-
2 ration in whose combined return or report the overcapitalized captive
3 insurance company should be included. If, under clause (C) of this
4 subparagraph, the corporation that is the closest controlling stockhold-
5 er of the overcapitalized captive insurance company is described in
6 subparagraph (ii) or (iv) of paragraph four of this subsection as a
7 corporation not permitted to make a combined return, then that corpo-
8 ration is deemed not to be in the ownership structure of the overcapi-
9 talized captive insurance company, and the closest controlling stock-
10 holder will be determined without regard to that corporation.
11 (E) If an overcapitalized captive insurance company is required under
12 this subparagraph to be included in a combined return with another
13 corporation, and that other corporation is required to be included in a
14 combined return with another corporation under other provisions of this
15 subsection, the overcapitalized captive insurance company must be
16 included in that combined return with those corporations.
17 § 7. Paragraph 3 of subsection (f) of section 1462 of the tax law, as
18 amended by section 11 of part FF-1 of chapter 57 of the laws of 2008, is
19 amended to read as follows:
20 (3) (i) In the case of a combined return, the tax shall be measured by
21 the combined entire net income, combined alternative entire net income
22 or combined assets of all the corporations included in the return,
23 including any captive REIT [or], captive RIC or overcapitalized captive
24 insurance company. The allocation percentage shall be computed based on
25 the combined factors with respect to all the corporations included in
26 the combined return. In computing combined entire net income and
27 combined alternative entire net income intercorporate dividends and all
28 other intercorporate transactions shall be eliminated and in computing
29 combined assets intercorporate stockholdings and intercorporate bills,
30 notes and accounts receivable and payable and other intercorporate
31 indebtedness shall be eliminated.
32 (ii) In the case of a captive REIT required under this subsection to
33 be included in a combined return, "entire net income" means "real estate
34 investment trust taxable income" as defined in paragraph two of subdivi-
35 sion (b) of section eight hundred fifty-seven (as modified by section
36 eight hundred fifty-eight) of the internal revenue code, plus the amount
37 taxable under paragraph three of subdivision (b) of section eight
38 hundred fifty-seven of that code, subject to the modifications required
39 by section fourteen hundred fifty-three of this article. In the case of
40 a captive RIC required under this subsection to be included in a
41 combined return, "entire net income" means "investment company taxable
42 income" as defined in paragraph two of subdivision (b) of section eight
43 hundred fifty-two (as modified by section eight hundred fifty-five) of
44 the internal revenue code, plus the amount taxable under paragraph three
45 of subdivision (b) of section eight hundred fifty-two of that code,
46 subject to the modifications required by section fourteen hundred
47 fifty-three of this article. However, the deduction under the internal
48 revenue code for dividends paid by the captive REIT or captive RIC to
49 any member of the affiliated group that includes the corporation that
50 directly or indirectly owns over fifty percent of the voting stock of
51 the captive REIT or captive RIC will be limited to the following
52 percentages: (A) fifty percent for taxable years beginning on or after
53 January first, two thousand eight and before January first, two thousand
54 nine; (B) twenty-five percent for taxable years beginning on or after
55 January first, two thousand nine and before January first, two thousand
56 eleven; and (C) zero percent for taxable years beginning on or after
S. 60--A 28 A. 160--A
1 January first, two thousand eleven. The term "affiliated group" means
2 "affiliated group" as defined in section fifteen hundred four of the
3 internal revenue code, but without regard to the exceptions provided for
4 in subsection (b) of such section fifteen hundred four.
5 (iii) In the case of an overcapitalized captive insurance company
6 required under this subsection to be included in a combined return,
7 entire net income must be computed as required by section fourteen
8 hundred fifty-three of this article.
9 § 8. Subdivision (a) of section 1500 of the tax law, as amended by
10 chapter 188 of the laws of 2003, is amended to read as follows:
11 (a) The term "insurance corporation" includes a corporation, associ-
12 ation, joint stock company or association, person, society, aggregation
13 or partnership, by whatever name known, doing an insurance business,
14 and, notwithstanding the provisions of section fifteen hundred twelve of
15 this article, shall include (1) a risk retention group as defined in
16 subsection (n) of section five thousand nine hundred two of the insur-
17 ance law, (2) the state insurance fund and (3) a corporation, associ-
18 ation, joint stock company or association, person, society, aggregation
19 or partnership doing an insurance business as a member of the New York
20 insurance exchange described in section six thousand two hundred one of
21 the insurance law. The definition of the "state insurance fund"
22 contained in this subdivision shall be limited in its effect to the
23 provisions of this article and the related provisions of this chapter
24 and shall have no force and effect other than with respect to such
25 provisions. The term "insurance corporation" shall also include a
26 captive insurance company doing a captive insurance business, as defined
27 in subsections (c) and (b), respectively, of section seven thousand two
28 of the insurance law; provided, however, "insurance corporation" shall
29 not include the metropolitan transportation authority, or a public bene-
30 fit corporation or not-for-profit corporation formed by a city with a
31 population of one million or more pursuant to subsection (a) of section
32 seven thousand five of the insurance law, each of which is expressly
33 exempt from the payment of fees, taxes or assessments, whether state or
34 local; and provided further "insurance corporation" does not include any
35 overcapitalized captive insurance company. The term "insurance corpo-
36 ration" shall also include an unauthorized insurer operating from an
37 office within the state, pursuant to paragraph five of subsection (b) of
38 section one thousand one hundred one and subsection (i) of section two
39 thousand one hundred seventeen of the insurance law.
40 § 9. Subdivision (a) of section 1502-b of the tax law, as separately
41 amended by chapter 188 and section 3 of part H3 of chapter 62 of the
42 laws of 2003, is amended to read as follows:
43 (a) In lieu of the taxes and tax surcharge imposed by sections fifteen
44 hundred one, fifteen hundred two-a, fifteen hundred five-a, and fifteen
45 hundred ten of this article, every captive insurance company licensed by
46 the superintendent of insurance pursuant to the provisions of article
47 seventy of the insurance law, other than the metropolitan transportation
48 authority and a public benefit corporation or not-for-profit corporation
49 formed by a city with a population of one million or more pursuant to
50 subsection (a) of section seven thousand five of the insurance law, each
51 of which is expressly exempt from the payment of fees, taxes or assess-
52 ments whether state or local, and other than an overcapitalized captive
53 insurance company, shall, for the privilege of exercising its corporate
54 franchise, pay a tax on (1) all gross direct premiums, less return
55 premiums thereon, written on risks located or resident in this state and
56 (2) all assumed reinsurance premiums, less return premiums thereon,
S. 60--A 29 A. 160--A
1 written on risks located or resident in this state. The rate of the tax
2 imposed on gross direct premiums shall be four-tenths of one percent on
3 all or any part of the first twenty million dollars of premiums, three-
4 tenths of one percent on all or any part of the second twenty million
5 dollars of premiums, two-tenths of one percent on all or any part of the
6 third twenty million dollars of premiums, and seventy-five thousandths
7 of one percent on each dollar of premiums thereafter. The rate of the
8 tax on assumed reinsurance premiums shall be two hundred twenty-five
9 thousandths of one percent on all or any part of the first twenty
10 million dollars of premiums, one hundred and fifty thousandths of one
11 percent on all or any part of the second twenty million dollars of
12 premiums, fifty thousandths of one percent on all or any part of the
13 third twenty million dollars of premiums and twenty-five thousandths of
14 one percent on each dollar of premiums thereafter. The tax imposed by
15 this section shall be equal to the greater of (i) the sum of the tax
16 imposed on gross direct premiums and the tax imposed on assumed reinsur-
17 ance premiums or (ii) five thousand dollars.
18 § 10. This act shall take effect immediately and apply to taxable
19 years beginning on or after January 1, 2009; provided, however that the
20 amendments to subparagraph 1 of paragraph (b) of subdivision 4 of
21 section 211 of the tax law made by section three of this act shall not
22 affect the expiration of such subparagraph and shall be deemed expired
23 therewith; the amendments to subsection (d) and paragraph 4 of
24 subsection (m) of section 1452 of the tax law made by sections four and
25 five of this act, respectively, shall not affect the expiration and
26 repeal of such subsection and paragraph and shall be deemed expired and
27 repealed therewith; and the amendments to paragraph 3 of subsection (f)
28 of section 1462 of the tax law made by section seven of this act shall
29 not affect the expiration and reversion of such paragraph and shall
30 expire and be deemed repealed therewith.
31 PART G
32 Section 1. Subdivision 1 of section 187-b of the tax law, as amended
33 by section 14 of part W-1 of chapter 109 of the laws of 2006, is amended
34 to read as follows:
35 1. General. [A] For taxable years beginning before January first, two
36 thousand nine, a taxpayer shall be allowed a credit, to be credited
37 against the taxes imposed under sections one hundred eighty-three, one
38 hundred eighty-four, and one hundred eighty-five of this article. Such
39 credit, to be computed as hereinafter provided, shall be allowed for
40 alternative fuel vehicle refueling property placed in service during the
41 taxable year. Provided, however, that the amount of such credit allow-
42 able against the tax imposed by section one hundred eighty-four of this
43 article shall be the excess of the credit allowed by this section over
44 the amount of such credit allowable against the tax imposed by section
45 one hundred eighty-three of this article.
46 § 2. Paragraph (g) of subdivision 24 of section 210 of the tax law, as
47 amended by section 15 of part W-1 of chapter 109 of the laws of 2006, is
48 amended to read as follows:
49 (g) Termination. The credit allowed by paragraph (b) of this subdivi-
50 sion shall not apply in taxable years beginning after December thirty-
51 first, two thousand [ten] eight.
52 § 3. Paragraph 6 of subsection (p) of section 606 of the tax law, as
53 amended by section 16 of part W-1 of chapter 109 of the laws of 2006, is
54 amended to read as follows:
S. 60--A 30 A. 160--A
1 (6) Termination. The credit allowed by paragraph two of this
2 subsection shall not apply in taxable years beginning after December
3 thirty-first, two thousand [ten] eight.
4 § 4. Subdivision 25 of section 210 of the tax law, as added by section
5 1 of part J of chapter 407 of the laws of 1999, is amended to read as
6 follows:
7 25. Credit for purchase of an automated external defibrillator. [A]
8 For taxable years beginning before January first, two thousand nine, a
9 taxpayer shall be allowed a credit, to be computed as hereinafter
10 provided, against the tax imposed by this article, for the purchase,
11 other than for resale, of an automated external defibrillator, as such
12 term is defined in section three thousand-b of the public health law.
13 The amount of credit shall be the cost to the taxpayer of automated
14 external defibrillators purchased during the taxable year, such credit
15 not to exceed five hundred dollars with respect to each unit purchased.
16 The credit allowed under this subdivision for any taxable year shall not
17 reduce the tax due for such year to less than the higher of the amounts
18 prescribed in paragraphs (c) and (d) of subdivision one of this section.
19 § 5. Subsection (s) of section 606 of the tax law, as added by section
20 3 of part J of chapter 407 of the laws of 1999, is amended to read as
21 follows:
22 (s) Credit for purchase of an automated external defibrillator. [A]
23 For taxable years beginning before January first, two thousand nine, a
24 taxpayer shall be allowed a credit as hereinafter provided, against the
25 tax imposed by this article for the purchase, other than for resale, of
26 an automated external defibrillator, as such term is defined in section
27 three thousand-b of the public health law. The amount of credit shall be
28 the cost to the taxpayer of automated external defibrillators purchased
29 during the taxable year, such credit not to exceed five hundred dollars
30 with respect to each unit purchased.
31 § 6. Subsection (j) of section 1456 of the tax law, as added by
32 section 4 of part J of chapter 407 of the laws of 1999, is amended to
33 read as follows:
34 (j) Credit for purchase of an automated external defibrillator. [A]
35 For taxable years beginning before January first, two thousand nine, a
36 taxpayer shall be allowed a credit as hereinafter provided, against the
37 tax imposed by this article for the purchase, other than for resale, of
38 an automated external defibrillator, as such term is defined in section
39 three thousand-b of the public health law. The amount of the credit
40 shall be the cost to the taxpayer of automated external defibrillators
41 purchased during the taxable year, such credit not to exceed five
42 hundred dollars with respect to each unit purchased. The credit allowed
43 under this subsection for any taxable year shall not reduce the tax due
44 for such year to less than the minimum tax fixed by subsection (b) of
45 section fourteen hundred fifty-five of this article.
46 § 7. Subdivision (l) of section 1511 of the tax law, as amended by
47 section 15 of part H3 of chapter 62 of the laws of 2003, is amended to
48 read as follows:
49 (l) Credit for purchase of an automated external defibrillator. [A]
50 For taxable years beginning before January first, two thousand nine, a
51 taxpayer shall be allowed a credit as hereinafter provided, against the
52 tax imposed by this article for the purchase, other than for resale, of
53 an automated external defibrillator, as such term is defined in section
54 three thousand-b of the public health law. The amount of the credit
55 shall be the cost to the taxpayer of automated external defibrillators
56 purchased during the taxable year, such credit not to exceed five
S. 60--A 31 A. 160--A
1 hundred dollars with respect to each unit purchased. The credit allowed
2 under this subdivision for any taxable year shall not reduce the tax due
3 for such year to less than the minimum tax fixed by paragraph four of
4 subdivision (a) of section fifteen hundred two of this article or by
5 section fifteen hundred two-a of this article, whichever is applicable.
6 § 8. Subdivision (a) of section 26 of the tax law, as added by chapter
7 537 of the laws of 2005, is amended to read as follows:
8 (a) Allowance of credit. [A] For taxable years beginning before Janu-
9 ary first, two thousand nine, a taxpayer, which is subject to tax under
10 article nine, nine-A, twenty-two, thirty-two or thirty-three of this
11 chapter and which is a qualified building owner, shall be allowed a
12 credit against such tax. The amount of the credit allowed under this
13 section shall equal the sum of the number of qualified security officers
14 providing protection to a building or buildings owned by the taxpayer
15 multiplied by three thousand dollars. Provided, however, that in the
16 case of a worker not so employed for a full year, such amount shall be
17 prorated to reflect the length of such employment under regulations of
18 the commissioner.
19 § 9. Subdivision 1 of section 187-n of the tax law, as added by chap-
20 ter 537 of the laws of 2005, is amended to read as follows:
21 1. Allowance of credit. [A] For taxable years beginning before January
22 first, two thousand nine, a taxpayer shall be allowed a credit, to be
23 computed as provided in section twenty-six of this chapter, against the
24 tax imposed by this article.
25 § 10. Paragraph 1 of subsection (ii) of section 606 of the tax law, as
26 added by chapter 537 of the laws of 2005, is amended to read as follows:
27 (1) Allowance of credit. [A] For taxable years beginning before Janu-
28 ary first, two thousand nine, a taxpayer shall be allowed a credit, to
29 be computed as provided in section twenty-six of this chapter, against
30 the tax imposed by this article.
31 § 11. Paragraph 1 of subsection (t) of section 1456 of the tax law, as
32 added by chapter 537 of the laws of 2005, is amended to read as follows:
33 (1) Allowance of credit. [A] For taxable years beginning before Janu-
34 ary first, two thousand nine, a taxpayer shall be allowed a credit, to
35 be computed as provided in section twenty-six of this chapter, against
36 the tax imposed by this article.
37 § 12. Paragraph 1 of subdivision (x) of section 1511 of the tax law,
38 as added by chapter 537 of the laws of 2005, is amended to read as
39 follows:
40 (1) Allowance of credit. [A] For taxable years beginning before Janu-
41 ary first, two thousand nine, a taxpayer shall be allowed a credit, to
42 be computed as provided in section twenty-six of this chapter, against
43 the tax imposed by this article.
44 § 13. Subdivision 1 of section 187-n of the tax law, as added by chap-
45 ter 446 of the laws of 2005, is amended to read as follows:
46 (1) Allowance of credit. [A] For taxable years beginning before Janu-
47 ary first, two thousand nine, a taxpayer whose business is not substan-
48 tially engaged in the commercial generation, distribution, transmission,
49 or servicing of energy or energy products shall be allowed a credit
50 against the taxes imposed by sections one hundred eighty-three, one
51 hundred eighty-four and one hundred eighty-five of this article, equal
52 to its qualified fuel cell electric generating equipment expenditures.
53 Provided, however, that the amount of such credit allowable against the
54 tax imposed by section one hundred eighty-four of this article shall be
55 the excess of the amount of such credit over the amount of any credit
56 allowed by this section against the tax imposed by section one hundred
S. 60--A 32 A. 160--A
1 eighty-three of this article. This credit shall not exceed one thousand
2 five hundred dollars per generating unit with respect to any taxable
3 year. The credit provided for herein shall be allowed with respect to
4 the taxable year in which the fuel cell electric generating equipment is
5 placed in service.
6 § 14. Paragraph (a) of subdivision 37 of section 210 of the tax law,
7 as added by chapter 446 of the laws of 2005, is amended to read as
8 follows:
9 (a) Allowance of credit. [A] For taxable years beginning before Janu-
10 ary first, two thousand nine, a taxpayer shall be allowed a credit
11 against the tax imposed by this article, equal to its qualified fuel
12 cell electric generating equipment expenditures. This credit shall not
13 exceed one thousand five hundred dollars per generating unit with
14 respect to any taxable year. The credit provided for herein shall be
15 allowed with respect to the taxable year in which the fuel cell electric
16 generating equipment is placed in service.
17 § 15. Paragraph 1 of subsection (g-2) of section 606 of the tax law,
18 as added by chapter 446 of the laws of 2005, is amended to read as
19 follows:
20 (1) General. [An] For taxable years beginning before January first,
21 two thousand nine, an individual taxpayer shall be allowed a credit
22 against the tax imposed by this article equal to twenty percent of qual-
23 ified fuel cell electric generating equipment expenditures. This credit
24 shall not exceed one thousand five hundred dollars per generating unit
25 with respect to any taxable year. The credit provided for herein shall
26 be allowed with respect to the taxable year in which the fuel cell elec-
27 tric generating equipment is placed in service.
28 § 16. Paragraph 1 of subsection (t) of section 1456 of the tax law, as
29 added by chapter 446 of the laws of 2005, is amended to read as follows:
30 (1) Allowance of credit. [A] For taxable years beginning before Janu-
31 ary first, two thousand nine, a taxpayer shall be allowed a credit
32 against the tax imposed by this article, equal to its qualified fuel
33 cell electric generating equipment expenditures. This credit shall not
34 exceed one thousand five hundred dollars per generating unit with
35 respect to any taxable year. The credit provided for in this subsection
36 shall be allowed with respect to the taxable year in which the fuel cell
37 electric generating equipment is placed in service.
38 § 17. Paragraph 1 of subdivision (x) of section 1511 of the tax law,
39 as added by chapter 446 of the laws of 2005, is amended to read as
40 follows:
41 (1) Allowance of credit. [A] For taxable years beginning before Janu-
42 ary first, two thousand nine, a taxpayer shall be allowed a credit
43 against the tax imposed by this article, equal to its qualified fuel
44 cell electric generating equipment expenditures. This credit shall not
45 exceed one thousand five hundred dollars per generating unit with
46 respect to any taxable year. The credit provided for in this subdivision
47 shall be allowed with respect to the taxable year in which the fuel cell
48 electric generating equipment is placed in service.
49 § 18. Paragraph (a) of subdivision 12-F of section 210 of the tax law,
50 as added by section 32 of part A of chapter 56 of the laws of 1998, is
51 amended to read as follows:
52 (a) [A] For taxable years beginning before January first, two thousand
53 nine, a taxpayer shall be allowed a credit against the tax imposed by
54 this article. The amount of the credit shall be equal to one of the
55 following percentages, per each qualified investment in a qualified
56 emerging technology company as defined in section thirty-one hundred
S. 60--A 33 A. 160--A
1 two-e of the public authorities law, made during the taxable year, and
2 certified by the commissioner, either:
3 (1) ten percent of qualified investments in qualified emerging tech-
4 nology companies, except for investments made by or on behalf of an
5 owner of the business, including, but not limited to, a stockholder,
6 partner or sole proprietor, or any related person, as defined in subpar-
7 agraph (C) of paragraph three of subsection (b) of section four hundred
8 sixty-five of the internal revenue code, and provided, however, that the
9 taxpayer certifies to the commissioner that the qualified investment
10 will not be sold, transferred, traded, or disposed of during the four
11 years following the year in which the credit is first claimed; or
12 (2) twenty percent of qualified investments in qualified emerging
13 technology companies, except for investments made by or on behalf of an
14 owner of the business, including, but not limited to, a stockholder,
15 partner or sole proprietor, or any related person, as defined in subpar-
16 agraph (C) of paragraph three of subsection (b) of section four hundred
17 sixty-five of the internal revenue code, and provided, however, that the
18 taxpayer certifies to the commissioner that the qualified investment
19 will not be sold, transferred, traded, or disposed of during the nine
20 years following the year in which the credit is first claimed.
21 "Qualified investment" means the contribution of property to a corpo-
22 ration in exchange for original issue capital stock or other ownership
23 interest, the contribution of property to a partnership in exchange for
24 an interest in the partnership, and similar contributions in the case of
25 a business entity not in corporate or partnership form in exchange for
26 an ownership interest in such entity.
27 The total amount of credit allowable to a taxpayer under this provision
28 for all years, taken in the aggregate, shall not exceed one hundred
29 fifty thousand dollars in the case of investments made pursuant to
30 subparagraph one of this paragraph and shall not exceed three hundred
31 thousand dollars in the case of investments made pursuant to subpara-
32 graph two of this paragraph.
33 § 19. Paragraph 1 of subsection (r) of section 606 of the tax law, as
34 added by section 2 of part I of chapter 407 of the laws of 1999, is
35 amended to read as follows:
36 (1) [A] For taxable years beginning before January first, two thousand
37 nine, a taxpayer shall be allowed a credit against the tax imposed by
38 this article. The amount of the credit shall be equal to one of the
39 following percentages, per each qualified investment in a qualified
40 emerging technology company as defined in section thirty-one hundred
41 two-e of the public authorities law, made during the taxable year, and
42 certified by the commissioner, either:
43 (A) ten percent of qualified investments in qualified emerging tech-
44 nology companies, except for investments made by or on behalf of an
45 owner of the business, including, but not limited to, a stockholder,
46 partner or sole proprietor, or any related person, as defined in subpar-
47 agraph (C) of paragraph three of subsection (b) of section four hundred
48 sixty-five of the internal revenue code, and provided, however, that the
49 taxpayer certifies to the commissioner that the qualified investment
50 will not be sold, transferred, traded, or disposed of during the four
51 years following the year in which the credit is first claimed; or
52 (B) twenty percent of qualified investments in qualified emerging
53 technology companies, except for investments made by or on behalf of an
54 owner of the business, including, but not limited to, a stockholder,
55 partner or sole proprietor, or any related person, as defined in subpar-
56 agraph (C) of paragraph three of subsection (b) of section four hundred
S. 60--A 34 A. 160--A
1 sixty-five of the internal revenue code, and provided, however, that the
2 taxpayer certifies to the commissioner that the qualified investment
3 will not be sold, transferred, traded, or disposed of during the nine
4 years following the year in which the credit is first claimed.
5 (C) "Qualified investment" means the contribution of property to a
6 corporation in exchange for original issue capital stock or other owner-
7 ship interest, the contribution of property to a partnership in exchange
8 for an interest in the partnership, and similar contributions in the
9 case of a business entity not in corporate or partnership form in
10 exchange for an ownership interest in such entity. The total amount of
11 credit allowable to a taxpayer under this provision for all years, taken
12 in the aggregate, shall not exceed one hundred fifty thousand dollars in
13 the case of investments made pursuant to subparagraph (A) of this para-
14 graph and shall not exceed three hundred thousand dollars in the case of
15 investments made pursuant to subparagraph (B) of this paragraph.
16 § 20. Subdivision (a) of section 20 of the tax law, as added by
17 section 1 of part I of chapter 63 of the laws of 2000, is amended to
18 read as follows:
19 (a) Allowance of credit. [A] For taxable years beginning before Janu-
20 ary first, two thousand nine, a taxpayer subject to tax under article
21 nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter
22 shall be allowed a credit against such tax, pursuant to the provisions
23 referenced in subdivision (d) of this section. The credit shall be
24 allowed where a taxpayer has made a certified contribution of at least
25 ten million dollars to a qualified transportation improvement project in
26 a prior taxable year. The credit shall be equal to six percent of the
27 taxpayer's increased qualified business facility payroll for the taxable
28 year. The aggregate of all credit amounts allowed to the taxpayer pursu-
29 ant to this section with respect to a certified contribution shall not
30 exceed the amount of such certified contribution.
31 § 21. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
32 of the tax law, as amended by section 2 of part ZZ-1 of chapter 57 of
33 the laws of 2008, is amended to read as follows:
34 (B) shall be treated as the owner of a new business with respect to
35 such share if the corporation qualifies as a new business pursuant to
36 paragraph (j) of subdivision twelve of section two hundred ten of this
37 chapter.
38 The corporation's credit base under
39 section two hundred ten or section
40 With respect to the following fourteen hundred fifty-six of this
41 credit under this section: chapter is:
42 Investment tax credit Investment credit base
43 under subsection (a) or qualified
44 rehabilitation
45 expenditures under
46 subdivision twelve of
47 section two hundred ten
48 Empire zone Cost or other basis
49 investment tax credit under subdivision
50 under subsection (j) twelve-B
51 of section two hundred
52 ten
S. 60--A 35 A. 160--A
1 Empire zone Eligible wages under
2 wage tax credit subdivision nineteen of
3 under subsection (k) section two hundred ten
4 or subsection (e) of
5 section fourteen hundred
6 fifty-six
7 Empire zone Qualified investments
8 capital tax credit and contributions under
9 under subsection (l) subdivision twenty of
10 section two hundred ten
11 or subsection (d) of
12 section fourteen hundred
13 fifty-six
14 Agricultural property tax Allowable school
15 credit under subsection (n) district property taxes under
16 subdivision twenty-two of
17 section two hundred ten
18 Credit for employment Qualified first-year wages or
19 of persons with dis- qualified second-year wages
20 abilities under under subdivision
21 subsection (o) twenty-three of section
22 two hundred ten
23 or subsection (f)
24 of section fourteen
25 hundred fifty-six
26 Employment incentive Applicable investment credit
27 credit under subsec- base under subdivision
28 tion (a-1) twelve-D of section two
29 hundred ten
30 Empire zone Applicable investment
31 employment credit under sub-
32 incentive credit under division twelve-C
33 subsection (j-1) of section two hundred ten
34 Alternative fuels credit [Cost] For taxable
35 under subsection (p) years beginning
36 before January first,
37 two thousand nine, cost
38 under subdivision
39 twenty-four of section two
40 hundred ten
41 Qualified emerging Applicable credit base
42 technology company under subdivision twelve-E
43 employment credit of section two hundred ten
44 under subsection (q)
45 Qualified emerging [Qualified] For taxable years
46 technology company beginning before January
47 capital tax credit first, two thousand nine,
48 under subsection (r) qualified
S. 60--A 36 A. 160--A
1 investments under
2 subdivision twelve-F of
3 section two hundred ten
4 Credit for purchase of an [Cost] For taxable years
5 automated external defibrillator beginning before January
6 under subsection (s) first, two thousand
7 nine, cost
8 of an automated
9 external defibrillator under
10 subdivision twenty-five of
11 section two hundred ten
12 or subsection (j) of section
13 fourteen hundred fifty-six
14 Low-income housing Credit amount under
15 credit under subsection (x) subdivision thirty
16 of section two hundred ten or
17 subsection (l) of section
18 fourteen hundred fifty-six
19 Credit for transportation [Amount] For taxable
20 improvement contributions years beginning before
21 under subsection (z) January first, two
22 thousand nine, amount
23 of credit under sub-
24 division thirty-two of section
25 two hundred ten or subsection
26 (n) of section fourteen
27 hundred fifty-six
28 QEZE credit for real property Amount of credit under
29 taxes under subsection (bb) subdivision twenty-seven of
30 section two hundred ten or
31 subsection (o) of section
32 fourteen hundred fifty-six
33 QEZE tax reduction credit Amount of benefit period
34 under subsection (cc) factor, employment increase factor
35 and zone allocation
36 factor (without regard
37 to pro ration) under
38 subdivision twenty-eight of
39 section two hundred ten or
40 subsection (p) of section
41 fourteen hundred fifty-six
42 and amount of tax factor
43 as determined under
44 subdivision (f) of section sixteen
45 Green building credit Amount of green building credit
46 under subsection (y) under subdivision thirty-one
47 of section two hundred ten
48 or subsection (m) of section
49 fourteen hundred fifty-six
S. 60--A 37 A. 160--A
1 Credit for long-term Qualified costs under
2 care insurance premiums subdivision twenty-five-a of
3 under subsection (aa) section two hundred ten
4 or subsection (k) of section
5 fourteen hundred fifty-six
6 Brownfield redevelopment Amount of credit
7 credit under subsection under subdivision
8 (dd) thirty-three of section
9 two hundred ten
10 or subsection (q) of
11 section fourteen hundred
12 fifty-six
13 Remediated brownfield Amount of credit under
14 credit for real property subdivision thirty-four
15 taxes for qualified of section two hundred
16 sites under subsection ten or subsection (r) of
17 (ee) section fourteen hundred
18 fifty-six
19 Environmental Amount of credit under
20 remediation subdivision thirty-five of
21 insurance credit under section two hundred
22 subsection (ff) ten or subsection
23 (s) of section
24 fourteen hundred
25 fifty-six
26 Empire state film production Amount of credit for qualified
27 credit under subsection (gg) production costs in production
28 of a qualified film under
29 subdivision thirty-six of
30 section two hundred ten
31 Qualified emerging Qualifying expenditures and
32 technology company facilities, development activities under
33 operations and training credit subdivision twelve-G of section
34 under subsection (nn) two hundred ten
35 Security training tax [Amount] For taxable years
36 credit under beginning before January
37 subsection (ii) first, two thousand
38 nine, amount
39 of credit
40 under subdivision thirty-seven
41 of section two hundred ten or
42 under subsection (t) of
43 section fourteen hundred fifty-six
44 Credit for qualified fuel [Amount] For taxable years
45 cell electric generating equipment beginning before January
46 expenditures under subsection (g-2) first, two thousand
47 nine, amount
48 of credit under
49 subdivision thirty-seven
S. 60--A 38 A. 160--A
1 of section two hundred ten
2 or subsection (t) of
3 section fourteen hundred
4 fifty-six
5 Empire state commercial production Amount of credit for qualified
6 credit under subsection (jj) production costs in production
7 of a qualified commercial under
8 subdivision thirty-eight of sec-
9 tion two hundred ten
10 Biofuel production Amount of credit
11 tax credit under under subdivision
12 subsection (jj) thirty-eight of
13 section two hundred ten
14 Clean heating fuel credit Amount of credit under
15 under subsection (mm) subdivision thirty-nine of
16 section two hundred ten
17 Credit for rehabilitation Amount of credit under
18 of historic properties subdivision forty of
19 under subsection (oo) subsection two hundred ten
20 Credit for companies who Amount of credit under
21 provide transportation subdivision forty of
22 to individuals section two hundred ten
23 with disabilities
24 under subsection (oo)
25 § 22. This act shall take effect immediately; provided, however that
26 the empire state film production credit under subsection (gg), the
27 empire state commercial production credit under subsection (jj) and the
28 credit for companies who provide transportation to individuals with
29 disabilities under subsection (oo) of section 606 of the tax law
30 contained in section twenty-one of this act shall expire on the same
31 date as provided in section 9 of part P of chapter 60 of the laws of
32 2004, as amended, section 10 of part V of chapter 62 of the laws of
33 2006, as amended and section 5 of chapter 522 of the laws of 2006, as
34 amended, respectively.
35 PART H
36 Section 1. Subparagraph (A) of paragraph 1 of subsection (b) of
37 section 631 of the tax law is amended by adding a new clause 1 to read
38 as follows:
39 (1) For purposes of this subparagraph, the term "real property located
40 in this state" includes an interest in a partnership, limited liability
41 corporation, S corporation, or non-publicly traded C corporation with
42 one hundred or fewer shareholders (hereinafter the "entity") that owns
43 real property that is located in New York and has a fair market value
44 that equals or exceeds fifty percent of all the assets of the entity on
45 the date of sale or exchange of the taxpayer's interest in the entity.
46 Only those assets that the entity owned for at least two years before
47 the date of the sale or exchange of the taxpayer's interest in the enti-
48 ty are to be used in determining the fair market value of all the assets
S. 60--A 39 A. 160--A
1 of the entity on the date of sale or exchange. The gain or loss derived
2 from New York sources from the taxpayer's sale or exchange of an inter-
3 est in an entity that is subject to the provisions of this subparagraph
4 is the total gain or loss for federal income tax purposes from that sale
5 or exchange multiplied by a fraction, the numerator of which is the fair
6 market value of the real property located in New York on the date of
7 sale or exchange and the denominator of which is the fair market value
8 of all the assets of the entity on the date of sale or exchange.
9 § 2. This act shall take effect immediately and shall apply to sales
10 or exchanges of entity interests that occur thirty or more days after
11 the date this act becomes law.
12 PART I
13 Section 1. Paragraph (a) of subdivision 1 of section 197-b of the tax
14 law, as amended by section 1 of part JJ-1 of chapter 57 of the laws of
15 2008, is amended to read as follows:
16 (a) For taxable years beginning on or after January first, nineteen
17 hundred seventy-seven, every taxpayer subject to tax under section one
18 hundred eighty-two, one hundred eighty-two-a, former section one hundred
19 eighty-two-b, one hundred eighty-four, one hundred eighty-six-a or one
20 hundred eighty-six-e of this article, must pay in each year an amount
21 equal to (i) twenty-five percent of the tax imposed under each of such
22 sections for the preceding taxable year if the preceding year's tax
23 exceeded one thousand dollars but was equal to or less than one hundred
24 thousand dollars, or (ii) [thirty] forty percent of the tax imposed
25 under any of these sections for the preceding taxable year if the
26 preceding year's tax exceeded one hundred thousand dollars. If the
27 preceding year's tax under section one hundred eighty-four, one hundred
28 eighty-six-a or one hundred eighty-six-e of this article exceeded one
29 thousand dollars and the taxpayer is subject to the tax surcharge
30 imposed by section one hundred eighty-four-a or one hundred eighty-six-c
31 of this article, respectively, the taxpayer must also pay in each such
32 year an amount equal to (i) twenty-five percent of the tax surcharge
33 imposed under such section for the preceding taxable year if the preced-
34 ing year's tax exceeded one thousand dollars but was equal to or less
35 than one hundred thousand dollars, or (ii) [thirty] forty percent of the
36 tax surcharge imposed under that section for the preceding taxable year
37 if the preceding year's tax exceeded one hundred thousand dollars. The
38 amount or amounts must be paid with the return or report required to be
39 filed with respect to the tax or tax surcharge for the preceding taxable
40 year or with an application for extension of the time for filing the
41 return or report.
42 § 2. Subdivision (a) of section 213-b of the tax law, as amended by
43 section 2 of part JJ-1 of chapter 57 of the laws of 2008, is amended to
44 read as follows:
45 (a) First installments for certain taxpayers.--In privilege periods of
46 twelve months ending at any time during the calendar year nineteen
47 hundred seventy and thereafter, every taxpayer subject to the tax
48 imposed by section two hundred nine of this chapter must pay with the
49 report required to be filed for the preceding privilege period, or with
50 an application for extension of the time for filing the report, an
51 amount equal to (i) twenty-five percent of the preceding year's tax if
52 the preceding year's tax exceeded one thousand dollars but was equal to
53 or less than one hundred thousand dollars, or (ii) [thirty] forty
54 percent of the preceding year's tax if the preceding year's tax exceeded
S. 60--A 40 A. 160--A
1 one hundred thousand dollars. If the preceding year's tax under section
2 two hundred nine of this chapter exceeded one thousand dollars and the
3 taxpayer is subject to the tax surcharge imposed by section two hundred
4 nine-B of this chapter, the taxpayer must also pay with the tax
5 surcharge report required to be filed for the preceding privilege peri-
6 od, or with an application for extension of the time for filing the
7 report, an amount equal to (i) twenty-five percent of the tax surcharge
8 imposed for the preceding year if the preceding year's tax was equal to
9 or less than one hundred thousand dollars, or (ii) [thirty] forty
10 percent of the tax surcharge imposed for the preceding year if the
11 preceding year's tax exceeded one hundred thousand dollars.
12 § 3. Subsection (a) of section 1461 of the tax law, as amended by
13 section 3 of part JJ-1 of chapter 57 of the laws of 2008, is amended to
14 read as follows:
15 (a) Every taxpayer subject to the tax imposed by section fourteen
16 hundred fifty-one must pay an amount equal to (i) twenty-five percent of
17 the preceding year's tax if the preceding year's tax exceeded one thou-
18 sand dollars but was equal to or less than one hundred thousand dollars,
19 or (ii) [thirty] forty percent of the preceding year's tax if the
20 preceding year's tax exceeded one hundred thousand dollars. The amount
21 must be paid with the return required to be filed for the preceding
22 taxable year or with an application for an extension of the time for
23 filing the return. If the preceding year's tax under section fourteen
24 hundred fifty-one of this article exceeded one thousand dollars and the
25 taxpayer is subject to the tax surcharge imposed by section fourteen
26 hundred fifty-five-B of this article, the taxpayer must also pay with
27 the tax surcharge return required to be filed for the preceding taxable
28 year, or with an application for an extension of the time for filing the
29 return, an amount equal to (i) twenty-five percent of the tax surcharge
30 imposed for the preceding year if the preceding year's tax was equal to
31 or less than one hundred thousand dollars, or (ii) [thirty] forty
32 percent of the tax surcharge imposed for the preceding year if the
33 preceding year's tax exceeded one hundred thousand dollars.
34 § 4. Paragraph 1 of subdivision (a) of section 1514 of the tax law, as
35 amended by section 4 of part JJ-1 of chapter 57 of the laws of 2008, is
36 amended to read as follows:
37 (1) Except as otherwise provided in paragraph two of this subdivision,
38 for taxable years beginning on or after January first, nineteen hundred
39 seventy-six, every taxpayer subject to tax under this article must pay
40 in each year an amount equal to (i) twenty-five percent of the tax
41 imposed under this article for the preceding taxable year if the preced-
42 ing year's tax exceeded one thousand dollars but was equal to or less
43 than one hundred thousand dollars, or (ii) [thirty] forty percent of the
44 tax imposed under this article for the preceding taxable year if the
45 preceding year's tax exceeded one hundred thousand dollars. If the
46 preceding year's tax exceeded one thousand dollars and the taxpayer is
47 subject to the tax surcharge imposed by section fifteen hundred five-a
48 of this article, the taxpayer must also pay an amount equal to (i) twen-
49 ty-five percent of the tax surcharge imposed under section fifteen
50 hundred five-a for the preceding taxable year if the preceding year's
51 tax was equal to or less than one hundred thousand dollars, or (ii)
52 [thirty] forty percent of the tax surcharge imposed for the preceding
53 taxable year if the preceding year's tax exceeded one hundred thousand
54 dollars.
55 § 5. This act shall take effect immediately and shall apply to taxable
56 years beginning on or after January 1, 2010.
S. 60--A 41 A. 160--A
1 PART J
2 Section 1. Paragraph 3 of subsection (c) of section 658 of the tax
3 law, as amended by section 1 of part AA-1 of chapter 57 of the laws of
4 2008, is amended to read as follows:
5 (3) Filing fees. (A) Every subchapter K limited liability company,
6 every limited liability company that is a disregarded entity for federal
7 income tax purposes, and every [limited liability] partnership [under
8 article eight-B of the partnership law and every foreign limited liabil-
9 ity partnership,] which has any income derived from New York sources,
10 determined in accordance with the applicable rules of section six
11 hundred thirty-one of this article as in the case of a nonresident indi-
12 vidual, shall, within thirty days after the last day of the taxable
13 year, make a payment of a filing fee. The amount of the filing fee is
14 the amount set forth in subparagraph (B) of this paragraph. The minimum
15 filing fee is twenty-five dollars for taxable years beginning in two
16 thousand eight and [after] thereafter. Limited liability companies that
17 are disregarded [entitled] entities for federal income tax purposes must
18 pay a filing fee of twenty-five dollars for taxable years beginning on
19 or after January first, two thousand eight.
20 (B) The filing fee will be based on the New York source gross income
21 of the limited liability company or [limited liability] partnership for
22 the taxable year immediately preceding the taxable year for which the
23 fee is due. If the limited liability company or [limited liability]
24 partnership does not have any New York source gross income for the taxa-
25 ble year immediately preceding the taxable year for which the fee is
26 due, the limited liability company or [limited liability] partnership
27 shall pay the minimum filing fee. Partnerships, other than limited
28 liability partnerships under article eight-B of the partnership law and
29 foreign limited liability partnerships, with less than one million
30 dollars in New York source gross income are exempt from the filing fee.
31 New York source gross income is the sum of the partners' or members'
32 shares of federal gross income from the [limited liability] partnership
33 or limited liability company derived from or connected with New York
34 sources, determined in accordance with the provisions of section six
35 hundred thirty-one of this article as if those provisions and any
36 related provisions expressly referred to a computation of federal gross
37 income from New York sources. For this purpose, federal gross income is
38 computed without any allowance or deduction for cost of goods sold.
39 The amount of the filing fee for taxable years beginning on or after
40 January first, two thousand eight will be determined in accordance with
41 the following table:
42 If the New York source gross income is: The fee is:
43 not more than $100,000 $25
44 more than $100,000 but not over $250,000 $50
45 more than $250,000 but not over $500,000 $175
46 more than $500,000 but not over $1,000,000 $500
47 more than $1,000,000 but not over $5,000,000 $1,500
48 more than $5,000,000 but not over $25,000,000 $3,000
49 Over $25,000,000 $4,500
50 (C) No credits provided by this article may be taken against the fee
51 imposed by this paragraph.
52 (D) Where the filing fee is not timely paid, it shall be paid upon
53 notice and demand and shall be assessed, collected and paid in the same
S. 60--A 42 A. 160--A
1 manner as taxes, and for those purposes any reference in this article to
2 tax imposed by this article shall be deemed also to refer to this filing
3 fee.
4 § 2. Subsection (a) of section 1304-C of the tax law, as amended by
5 section 5 of part AA-1 of chapter 57 of the laws of 2008, is amended to
6 read as follows:
7 (a) In addition to any other taxes or fees authorized by this article
8 or any other law, any city imposing the taxes authorized by this article
9 is hereby authorized and empowered to adopt and amend local laws provid-
10 ing that every subchapter K limited liability company (as such term is
11 defined in subsection (b) of section thirteen hundred two of this arti-
12 cle), every limited liability company that is a disregarded entity for
13 federal income tax purposes and every [limited liability] partnership
14 [under article eight-B of the partnership law and every foreign limited
15 liability partnership,] which has any income derived from sources within
16 such city, determined in accordance with the applicable rules of section
17 six hundred thirty-one of this chapter as in the case of a state nonres-
18 ident individual (except that in making that determination any refer-
19 ences in section six hundred thirty-one of this chapter to "New York
20 source" or "New York sources" shall be read as references to "New York
21 city source" or "New York city sources" and any references in that
22 section to "this state" or "the state" shall be read as references to
23 "this city" or "the city"), shall within thirty days after the last day
24 of the taxable year make a payment of a filing fee. The amount of the
25 filing fee shall be the amount determined under paragraph three of
26 subsection (c) of section six hundred fifty-eight of this chapter,
27 except that in making that determination any references in that section
28 to "New York source gross income" must be read as reference to "New York
29 city source gross income". Any local law imposing the filing fee author-
30 ized by this section shall provide that where the filing fee is not
31 timely paid, it shall be paid upon notice and demand and shall be
32 assessed, collected and paid in the same manner as the taxes imposed
33 pursuant to the authority of this article, and for these purposes any
34 reference in the local law imposing those taxes to the taxes imposed by
35 that local law shall be deemed also to refer to the filing fee imposed
36 pursuant to the authority of this section.
37 § 3. This act shall take effect immediately and shall apply to taxable
38 years beginning on or after January 1, 2009.
39 PART K
40 Section 1. Section 957 of the general municipal law, as added by chap-
41 ter 686 of the laws of 1986, subdivisions (b) and (f) as amended and
42 subdivisions (c), (g), (i), (j), (k), and (l) as added by chapter 624 of
43 the laws of 1990, subdivision (d) as amended and subdivision (r) as
44 added by section 1 of part HH of chapter 59 of the laws of 2006, para-
45 graphs (iii), (iv), (v) and (vi) of subdivision (d) as added by section
46 5 of part A of chapter 63 of the laws of 2005, subdivision (e) as
47 amended and subdivisions (m), (n) and (o) as added by chapter 708 of the
48 laws of 1993, subdivision (h) as amended by chapter 39 of the laws of
49 2004, subdivision (p) as added by chapter 170 of the laws of 1994,
50 subdivision (q) as amended by chapter 161 of the laws of 2005, subdivi-
51 sions (s) and (t) as added by section 1 of part V-1 of chapter 109 of
52 the laws of 2006, subdivision (u) as added by chapter 494 of the laws of
53 2008 and subdivisions (a), (e), (f), (k), and (m) as further amended
S. 60--A 43 A. 160--A
1 pursuant to section 15 of part GG of chapter 63 of the laws of 2000, is
2 amended to read as follows:
3 § 957. Definitions. As used in this article, the following words and
4 terms shall have the following meanings unless the context shall indi-
5 cate another or different meaning or intent:
6 (a) "Applicant" shall mean the county, city, town or village submit-
7 ting an application in the manner authorized by local law for desig-
8 nation of an area as an empire zone.
9 (b) "Commissioner" shall mean the commissioner of economic develop-
10 ment.
11 (c) "Minority-owned business enterprise" shall [mean a business enter-
12 prise, including a sole proprietorship, partnership or corporation, that
13 is:
14 (i) at least fifty-one percent owned by one or more minority group
15 members;
16 (ii) an enterprise in which such minority ownership is real, substan-
17 tial and continuing;
18 (iii) an enterprise in which such minority ownership has and exercises
19 the authority to control independently the day-to-day business decisions
20 of the enterprise; and
21 (iv) an enterprise authorized to do business in this state and inde-
22 pendently owned and operated] have the same meaning as provided in
23 section three hundred ten of the executive law.
24 (d) "Empire zone" shall mean an area within the state that has been
25 designated as an empire zone pursuant to this article and:
26 (i) all empire zones designated under paragraph (i) of subdivision (a)
27 and subdivision (d) of section nine hundred fifty-eight of this article
28 shall be referred to as "investment zones" and shall be wholly contained
29 within up to three distinct and separate contiguous areas; provided,
30 however, that empire zones designated prior to the enactment of this
31 paragraph shall identify up to three distinct and separate contiguous
32 areas, which shall equal up to their total allotted acreage at the time
33 of designation by January first, two thousand six. Provided however, the
34 existing zone must include as much designated acreage into the distinct
35 and separate contiguous areas as possible. Provided, however, notwith-
36 standing the provisions of paragraphs (i) and (ii) of subdivision (a) of
37 section nine hundred fifty-eight and subdivision (d) of section nine
38 hundred fifty-nine of this article a regionally significant project may
39 be located outside of the investment zone's distinct and separate
40 contiguous areas, provided such significant project is located within
41 the zone applicant's municipal boundaries. Provided further however, if
42 the investment zone is located in a county that does not have a develop-
43 ment zone such significant project may be located within the county's
44 boundaries. For the purpose of this article a "regionally significant
45 project" shall mean: a manufacturer projecting the creation of fifty or
46 more jobs; or an agri-business or high tech or biotech business making a
47 capital investment of ten million dollars and creating twenty or more
48 jobs; or a financial or insurance services or distribution center creat-
49 ing three hundred or more jobs; or a clean energy research and develop-
50 ment enterprise shall be eligible as a regionally significant project as
51 determined by [the local zone administrative board and] the commission-
52 er. Other projects may be considered by the zone designation board;
53 (ii) all empire zones designated under subdivisions (b) and (c) of
54 section nine hundred fifty-eight of this article shall be referred to as
55 "development zones" and shall be wholly contained within up to six
56 distinct and separate contiguous areas. However, an empire zone located
S. 60--A 44 A. 160--A
1 in more than one county at the time of designation shall be wholly
2 contained in up to twelve distinct and separate contiguous areas.
3 Provided, however, that empire zones designated prior to the enactment
4 of this paragraph shall identify up to six distinct and separate contig-
5 uous areas, which shall equal up to their total allotted acreage at the
6 time of designation, by January first, two thousand six or in the case
7 of an empire zone located in more than one county, at the time of desig-
8 nation shall identify twelve distinct and separate contiguous areas.
9 Provided however, the existing zone must include as much designated
10 acreage into the distinct and separate contiguous areas as possible.
11 Provided, however, a regionally significant project may be located
12 outside of the development zone's distinct and separate contiguous
13 areas. For the purpose of this article a "regionally significant
14 project" shall mean: a manufacturer projecting the creation of fifty or
15 more jobs; or an agri-business or high tech or biotech business making a
16 capital investment of ten million dollars and creating twenty or more
17 jobs; or a financial or insurance services or distribution center creat-
18 ing three hundred or more jobs; or a clean energy research and develop-
19 ment enterprise shall be eligible as a regionally significant project as
20 determined by [the local zone administrative board and] the commission-
21 er. Other projects may be considered by the zone designation board;
22 (iii) provided, however, a zone may apply by no later than March thir-
23 ty-first, two thousand nine to add one additional distinct and separate
24 contiguous area, pursuant to paragraphs (i) and (ii) of this subdivi-
25 sion, to such zone upon the demonstration of need, provided, however,
26 such additional distinct and separate contiguous area shall not result
27 in an empire zone that exceeds the maximum allotted acreage;
28 (iv) a "development zone", pursuant to paragraph (ii) of this subdivi-
29 sion, shall apply by no later than March thirty-first, two thousand
30 nine, pursuant to subdivisions (a) and (d) of section nine hundred
31 fifty-eight of this article, to have up to three distinct and separate
32 contiguous areas defined as "investment zones", pursuant to this subdi-
33 vision;
34 (v) any certified businesses located outside of the empire zone's
35 distinct and separate contiguous areas, pursuant to this section, shall
36 be allowed the empire zone benefits until they are decertified; and
37 (vi) the boundaries that comprise the distinct and separate contiguous
38 areas in this subdivision must include at least the real property on one
39 side of a public thoroughfare when such street is used as a boundary. No
40 boundary shall be constructed as to connect one tax parcel to another
41 tax parcel by using a thoroughfare's center line, sidewalk or other
42 similar means of connecting a non-contiguous area to the zone's distinct
43 and separate contiguous areas.
44 (e) "Local empire zone administrative board" shall mean the entity
45 designated by the applicant that is responsible for monitoring, evaluat-
46 ing and coordinating all empire zone benefits on behalf of the appli-
47 cant. Such entity shall consist of at least six members, none of whom
48 shall be the local empire zone certification officer, and shall be
49 representative of local businesses, organized labor, community organiza-
50 tions, financial institutions, local educational institutions and resi-
51 dents of the empire zone.
52 (f) ["Local empire zone certification officer" shall mean the official
53 designated by the applicant who is responsible for jointly certifying
54 and decertifying together with the commissioner and the commissioner of
55 labor those business enterprises eligible to receive benefits pursuant
56 to this article.
S. 60--A 45 A. 160--A
1 (g)] "Women-owned business enterprise" shall [mean a business enter-
2 prise, including a sole proprietorship, partnership or corporation, that
3 is:
4 (i) at least fifty-one percent owned by one or more United States
5 citizens or permanent resident aliens who are women;
6 (ii) an enterprise in which the ownership interest of such women is
7 real, substantial and continuing;
8 (iii) an enterprise in which such women ownership has and exercises
9 the authority to control independently the day-to-day business decisions
10 of the enterprise; and
11 (iv) an enterprise authorized to do business in this state and inde-
12 pendently owned and operated] have the same meaning as provided in
13 section three hundred ten of the executive law.
14 [(h)] (g) "Locally owned business enterprise" shall mean (i) a busi-
15 ness firm in which the total ownership interest held by individuals who
16 are full time bona fide residents of such zone is more than eighty
17 percent, whose business activities are conducted in a manner whereby at
18 least fifty percent of the assets of such firm are located and utilized
19 in such zone, and at least forty percent of such firm's employees are
20 principally employed in such zone; or (ii) an agricultural cooperative
21 established pursuant to section one hundred eleven of the cooperative
22 corporations law; provided however, for business firms located within
23 zones designated in a city such individuals shall reside within a commu-
24 nity planning board or within traditional neighborhood boundaries and
25 provided further however for business firms located within zones outside
26 of a city such individuals may reside in the county in which the zone is
27 designated.
28 [(i)] (h) "Chief executive" shall mean (i) a county executive or
29 manager of a county; (ii) in a county not having a county executive or
30 manager, the chairperson or other presiding officer of the county legis-
31 lative body; (iii) a mayor of a city or village, except where a city or
32 village has a manager, it shall mean such a manager; or (iv) a supervi-
33 sor of a town, except where a town has a manager, it shall mean such
34 manager.
35 [(j)] (i) "Minority group member" shall [mean a United States citizen
36 or permanent resident alien who is and can demonstrate membership in one
37 of the following groups:
38 (i) Black persons having origins in any of the Black African racial
39 groups;
40 (ii) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban,
41 Central or South American of either Indian or Hispanic origin, regard-
42 less of race;
43 (iii) Native American or Alaskan native persons having origins in any
44 of the original peoples of North America; and
45 (iv) Asian and Pacific Islander persons having origins in any of the
46 Far East countries, South East Asia, the Indian subcontinent or the
47 Pacific Islands] have the same meaning as provided in section three
48 hundred ten of the executive law.
49 [(k)] (j) "Targeted employee" shall mean a New York resident who
50 receives empire zone wages pursuant to subdivision nineteen of section
51 two hundred ten of the tax law and who is (i) an eligible individual
52 under the provision of the targeted jobs tax credit (section fifty-one
53 of the internal revenue code), (ii) eligible for benefits under the
54 provisions of the job training partnership act (P.L. 97-300, as
55 amended), (iii) a recipient of public assistance benefits, or (iv) an
56 individual whose income is below the most recently established poverty
S. 60--A 46 A. 160--A
1 rate promulgated by the United States department of commerce, or a
2 member of a family whose family income is below the most recently estab-
3 lished poverty rate promulgated by the appropriate federal agency.
4 An individual who satisfies the criteria set forth in clause (i), (ii)
5 or (iv) of this subdivision at the time of initial employment in the job
6 with respect to which the credit is claimed, or who satisfies the crite-
7 rion set forth in clause (iii) of this subdivision at such time or at
8 any time within the previous two years, shall be a targeted employee so
9 long as such individual continues to receive empire zone wages.
10 [(l)] (k) "Single enterprise" means two or more related business
11 enterprises characterized by an absence of arms length relationships
12 found among enterprises that are not integrated. Factors to be consid-
13 ered, among other things, in determining the existence of a single
14 enterprise are interrelation of operations, common management, central-
15 ized control of labor relations, common ownership and common financial
16 control.
17 [(m)] (l) "Zone administrative entity" shall mean a community-based
18 local development corporation or entity contracting with the local
19 empire zone board pursuant to paragraph (viii) of subdivision [(b)] a of
20 section nine hundred sixty-three of this article or the municipality in
21 which the zone is located in those instances where the municipality
22 actively participates in the local administration of the zone program.
23 [(n)] (m) "Human resource development" shall mean job preparation and
24 placement, skills training and education for zone residents and employ-
25 ees of zone businesses, child and family care services and facilities,
26 and activities to improve the health benefits and other benefits
27 provided by zone businesses to their employees.
28 [(o)] (n) "Community development projects" shall mean projects spon-
29 sored by not-for-profit organizations which have been approved by the
30 zone board, which will advance the zone development plan. For purposes
31 described in subdivision twenty of section two hundred ten, subsection
32 (l) of section six hundred six, subsection (d) of section fourteen
33 hundred fifty-six and subdivision (h) of section fifteen hundred eleven
34 of the tax law, such projects shall be limited to child care programs
35 serving zone residents and businesses; community development projects in
36 direct support of economic development and business revitalization
37 activities, such as commercial revitalization projects; and business
38 development activities of local development corporations.
39 [(p)] (o) "Zone equivalent area" shall mean an area designated as such
40 pursuant to former subdivision (bb) of section nine hundred fifty-nine
41 of this article.
42 [(q)] (p) "Cost benefit analysis" shall mean, for purposes of para-
43 graph (i) of subdivision (a) of section nine hundred fifty-nine and
44 subdivision (b) of section nine hundred seventy of this article, a meth-
45 od of determining whether to certify a business [pursuant to section
46 nine hundred sixty-three of this article] enterprise based on the [busi-
47 ness'] business enterprise's projected job creation and/or investment
48 [in the zone] at the location or locations approved by the commissioner,
49 versus the total amount of empire zone tax benefits the business enter-
50 prise will potentially be allowed to [claim pursuant to sections four-
51 teen, fifteen, and sixteen of the tax law.] use and have refunded to it
52 and shall be a ratio of at least 20:1, the numerator of which is the sum
53 of (i) the estimated value of all wages and benefits paid for the first
54 three years of certification to all existing and projected employees of
55 the business enterprise at the location or locations approved by the
56 commissioner and (ii) the estimated value of capital investments for the
S. 60--A 47 A. 160--A
1 first three years of certification at the location or locations approved
2 by the commissioner, and the denominator of which is the estimated
3 amount of total empire zone tax benefits that may be used and may be
4 refunded for the first three years of certification at the location or
5 locations approved by the commissioner.
6 [Such cost benefit analysis shall include, but not be limited to, an
7 estimate for the first five years commencing in the year in which the
8 business is certified, of: (i) the amount of all the state tax credits
9 under the empire zones program which may be claimed by the entity or its
10 members, partners, or shareholders each year, (ii) the value of the
11 sales tax exemption on an annual basis, (iii) the estimated number of
12 jobs created, (iv) the total annual remuneration and benefits for the
13 employees within the zone location, (v) the cost of construction, reno-
14 vation or expansion of the business's location within the zone, and (vi)
15 the investment being made with respect to tangible personal property or
16 other tangible property which is depreciable pursuant to section 179(d)
17 of the Internal Revenue Code. Non-quantifiable factors may include a
18 business enterprise's positive impact on an area that has high commer-
19 cial vacancy rates, and/or is characterized by blight and disinvestment
20 or the business enterprise is part of a strategic industry cluster or
21 supply chain; or is anticipated to access zone capital credits.]
22 (q) "Cost benefit analysis" shall mean, for purposes of subdivision
23 (w) of section nine hundred fifty-nine and subdivision (d) of section
24 nine hundred seventy of this chapter, a method of determining whether to
25 continue to certify a business enterprise at the location or locations
26 approved by the commissioner based on the business enterprise's actual
27 job creation and/or capital investment versus the total amount of empire
28 zone benefits the business enterprise used and had refunded and shall be
29 a ratio of at least 20:1, the numerator of which is the sum of (i) the
30 actual value of all wages and benefits paid for at least three years of
31 certification to all employees of the business enterprise at the
32 location or locations approved by the commissioner and (ii) the value of
33 capital investments for at least three years at the location or
34 locations approved by the commissioner, and the denominator of which is
35 the total amount of empire zone tax benefits actually refunded and used
36 by the business enterprise for at least three years, at the location or
37 locations approved by the commissioner.
38 (r) "Clean energy research and development enterprise" shall mean any
39 electric generating facility that used pulverized coal technology,
40 circulating fluidized bed technology or integrated gasification combined
41 cycle technology and that is capable of capturing carbon dioxide for
42 sequestration or capable of being retrofitted to capture carbon dioxide
43 for sequestration.
44 (s) "Qualified investment project" shall mean a project (i) located
45 within an empire zone, (ii) at which five hundred or more jobs will be
46 created, provided such jobs are new to the state and are in addition to
47 any other jobs previously created by the owner of such project in the
48 state, and (iii) which will consist of tangible personal property and
49 other tangible property, including buildings and structural components
50 of buildings, described in subparagraphs (i), (ii), (iii), (iv) and
51 clause (A) or (C) of subparagraph (v) of paragraph (b) of subdivision
52 twelve-B of section two hundred ten of the tax law, the basis of which
53 for federal income tax purposes will equal or exceed seven hundred fifty
54 million dollars. Provided however, the owner of such project does not
55 employ more than two hundred persons in the state at the time such
56 project is commenced.
S. 60--A 48 A. 160--A
1 (t) "Significant capital investment project" shall mean a project (i)
2 located within an empire zone, (ii) which will be either a newly
3 constructed facility or a newly constructed addition to or expansion of
4 a qualified investment project, consisting of tangible personal property
5 and other tangible property, including buildings and structural compo-
6 nents of buildings, described in subparagraphs (i), (ii), (iii), (iv)
7 and clause (A) or (C) of subparagraph (v) of paragraph (b) of subdivi-
8 sion twelve-B of section two hundred ten of the tax law, the basis of
9 which for federal income tax purposes will equal or exceed seven hundred
10 fifty million dollars, (iii) which is constructed after the basis for
11 federal income tax purposes of the property comprising such qualified
12 investment project equals or exceeds seven hundred fifty million
13 dollars, and (iv) at which five hundred or more jobs will be created,
14 provided such jobs are new to the state and are in addition to any other
15 jobs previously created by the owner of such project in the state.
16 (u) In the case of a manufacturer: (i) that has acquired a silicon
17 manufacturing facility: (A) where more than seven hundred fifty persons
18 are employed; (B) that has been designated as a regionally significant
19 project as defined in this article; and (C) which has a cost or other
20 basis for federal income tax purposes in tangible personal property at
21 such silicon manufacturing facility, including equipment and machinery,
22 buildings and structural components of buildings, equal to or exceeding
23 two hundred million dollars; and (ii) that is projecting the creation of
24 fifty or more silicon manufacturing jobs at the silicon manufacturing
25 facility referred to in paragraph (i) of this subdivision, then, subject
26 to the written approval of the commissioner, such manufacturer may elect
27 an effective date for designation of such manufacturing facility as a
28 regionally significant project for purposes of this article, and
29 provided such manufacturer has been certified as an empire zone enter-
30 prise pursuant to this article, and has obtained the written approval of
31 the commissioner, may elect an effective date for such certification as
32 an empire zone enterprise pursuant to this article, provided that such
33 dates are: (A) no earlier than the date that the manufacturing facility
34 is acquired; (B) no earlier than sixty days prior to the date upon which
35 a local law was enacted by the city, county, town or village approving
36 the inclusion of the regionally significant project within the empire
37 zone; and (C) no later than the date the local zone administrative board
38 approves the application for certification as an empire zone enterprise,
39 and further provided that such effective date for designation and such
40 effective date for certification as an empire zone enterprise pursuant
41 to this article shall be the same date. Subject to the written approval
42 of the commissioner, such election shall be made by such manufacturer to
43 the commissioner on or before the second anniversary of the date upon
44 which the local law was enacted by the city, county, town or village
45 approving the inclusion of the regionally significant project within the
46 empire zone.
47 § 2. Paragraph (ii) and the opening paragraph of paragraph (vi) of
48 subdivision (a), subdivision (b), the opening paragraph of subdivision
49 (c), the opening paragraph of subdivision (d) and subdivision (g) of
50 section 958 of the general municipal law, paragraph (ii) and the opening
51 paragraph of paragraph (vi) of subdivision (a) and the opening paragraph
52 of subdivision (c) as amended by chapter 708 of the laws of 1993, subdi-
53 vision (b) as amended by chapter 624 of the laws of 1990, the opening
54 paragraph of subdivision (d) as amended by chapter 41 of the laws of
55 2000, subdivision (g) as added by section 5 of part A of chapter 63 of
56 the laws of 2005, and paragraph (ii) of subdivision (a), subdivision
S. 60--A 49 A. 160--A
1 (b), the opening paragraph of subdivision (c), and the opening paragraph
2 of subdivision (d) as further amended pursuant to section 15 of part GG
3 of chapter 63 of the laws of 2000, are amended to read as follows:
4 (ii) lands nearby or contiguous to census tracts or block numbering
5 areas described in paragraph (i) of this subdivision may be eligible to
6 be included within an empire zone if, upon the request of the applicant
7 by March thirty-first, two thousand nine, the commissioner finds, in
8 accordance with regulations promulgated pursuant to this article, that
9 such additional lands have significant potential for business develop-
10 ment and job creation, which will enhance economic revitalization of the
11 zone and benefit zone residents; provided, however, that lands nearby
12 shall not be included in a zone until the commissioner, in consultation
13 with the director of the budget, promulgates regulations governing the
14 inclusion of such lands;
15 such other requirements as may be established in regulations promul-
16 gated by the commissioner [with the approval of the director of the
17 budget and after consultation with the commissioner of labor], including
18 but not limited to:
19 (b) Notwithstanding the provisions of paragraph (i) of subdivision (a)
20 of this section, any county in which the average rate of unemployment in
21 the two most recent calendar years was at least one and one-quarter
22 times the state average for those years and in which the rate of poverty
23 for individuals was at least thirteen percent according to the most
24 recent census data available, and which does not contain a census tract
25 or tracts, portion of a block numbering area or a city, town or village
26 which meets the criteria specified in such paragraph (i) of subdivision
27 (a), may apply by no later than March thirty-first, two thousand nine
28 for designation of an area within a municipality as an empire zone. The
29 area proposed for designation shall be characterized by pervasive pover-
30 ty, high unemployment and general economic distress.
31 Notwithstanding the provisions of paragraph (i) of subdivision (a) of
32 this section, any county may apply by no later than March thirty-first,
33 two thousand nine for designation of an area within a municipality as an
34 empire zone provided that the following requirements are met:
35 Notwithstanding the provisions of paragraph (i) of subdivision (a) of
36 this section, any municipality may apply by no later than March thirty-
37 first, two thousand nine for designation as an empire zone for an area
38 which shall include a United States census tract or tracts or block
39 numbering area or areas or portions thereof, each full census tract or
40 portion of a block numbering area of which according to the most recent
41 census data available has:
42 (g) Notwithstanding any other provision of this section, after March
43 thirty-first, two thousand five, a municipality shall demonstrate in an
44 application for designation as an empire zone submitted no later than
45 March thirty-first, two thousand nine, that there is no viable alterna-
46 tive area or areas that has or have existing public sewer or water
47 infrastructure available other than the proposed zone.
48 § 3. Section 959 of the general municipal law, as amended by section 5
49 of part A of chapter 63 of the laws of 2005 and subdivision (w) as
50 amended by section 2 of part CCC1 of chapter 57 of the laws of 2008, is
51 amended to read as follows:
52 § 959. Responsibilities of the commissioner. The commissioner shall:
53 (a) [After consultation with the director of the budget, the commis-
54 sioner of labor, and the commissioner of taxation and finance, promul-
55 gate] Promulgate regulations, which, notwithstanding any provisions to
56 the contrary in the state administrative procedure act, may be adopted
S. 60--A 50 A. 160--A
1 on an emergency basis, governing (i) [criteria of eligibility for empire
2 zone designation, provided, however, that such criteria be approved by
3 the director of the budget; (ii) the application process; (iii)] the
4 [joint] certification by the commissioner[, the commissioner of labor,
5 and, in the case of an empire zone, the local empire zone certification
6 officer,] as to the eligibility of business enterprises for benefits
7 referred to in section nine hundred sixty-six of this article[,
8 provided, however, that a business enterprise that has shifted its oper-
9 ations, or some portions thereof, from an area within New York state not
10 designated as an empire zone or zone equivalent area to an area so
11 designated shall not be certified to receive such benefits except where
12 such shift is entirely within a municipality and has been approved by
13 the local governing body of such municipality or in situations where it
14 has been established, after a public hearing, that extraordinary circum-
15 stances exist which warrant the relocation of a business, in whole or
16 part, into an empire zone or a zone equivalent area from another munici-
17 pality and the municipality from which the business is relocating
18 approves of such relocation; or where such shift in operations is from a
19 business incubator facility operated by a municipality or by a public or
20 private not-for-profit entity which provides space and business support
21 services to newly established firms]; and [(iv)] (ii) the [joint] decer-
22 tification by the commissioner[, the commissioner of labor, and, in the
23 case of an empire zone, the local empire zone certification officer] so
24 as to revoke the certification of business enterprises for benefits
25 referred to in section nine hundred sixty-six of this article with
26 respect to an empire zone or zone equivalent area upon a finding that
27 (1) the business enterprise made material misrepresentations of fact on
28 its application for certification or in any of its business annual
29 reports, or the business enterprise failed to disclose facts in its
30 application for certification that would constitute grounds for not
31 issuing a certification; (2) the business enterprise has failed to
32 construct, expand, rehabilitate or operate or invest in its facility
33 substantially in accordance with the representations contained in its
34 application for certification; (3) the business enterprise has failed to
35 create new employment or prevent a loss of employment in the empire zone
36 or zone equivalent area [provided, however, that such failure was not
37 due to economic circumstances or conditions which such business could
38 not anticipate or which were beyond its control]; (4) where applicable,
39 the business enterprise has failed to submit an annual report after it
40 has applied for zone [incentives] tax benefits or program assistance
41 based on new hires or investments or failed to submit other information
42 [to the local empire zone certification officer] when due; [or] (5) the
43 business enterprise has committed substantial violations of laws for the
44 protection of workers including all federal, state and local labor laws,
45 rules or regulations; or (6) the business enterprise has failed to meet
46 the requirements of the cost-benefit analysis as established by and
47 conducted pursuant to this article unless the commissioner determines in
48 his or her sole discretion that continued certification is warranted,
49 based upon other economic, social and environmental factors, as provided
50 in subdivision (w) of this section; said regulations shall provide that
51 whenever any business enterprise is decertified with respect to an
52 empire zone: (A) the date determined to be the earliest event constitut-
53 ing grounds for revoking certification shall be the effective date of
54 decertification; (B) its certified single enterprise, if any, may also
55 be decertified; and (C) the commissioner shall notify the commissioner
56 of taxation and finance that such decertification has occurred, and such
S. 60--A 51 A. 160--A
1 notification should include the effective date of such decertification
2 and the zone or zone equivalent area to which such decertification
3 applies; with respect to any business enterprise decertified pursuant to
4 subparagraph six of paragraph (ii) of this subdivision, that decertif-
5 ication (1) will be effective for a taxable year beginning on or after
6 January first, two thousand eight and before January first, two thousand
7 nine and for subsequent taxable years for a business enterprise for
8 which a review is required to be conducted pursuant to subdivision (w)
9 of this section in calendar year two thousand nine, and (2) thereafter
10 will be effective for the taxable year during which the commissioner
11 makes his or her determination (prior to any appeal) to revoke the
12 certification of a business enterprise and for subsequent taxable years;
13 (b) Receive by no later than March thirty-first, two thousand nine and
14 review applications for designation of areas as empire zones;
15 (c) Analyze and make recommendations to the empire zones designation
16 board for designation of areas as empire zones, provided, however, that
17 all such areas recommended by the commissioner shall meet the require-
18 ments of this article;
19 (d) [Review new applications to replace any previously designated
20 empire zone the designation of which has been terminated or withdrawn;
21 (e)] File notice of the designation or redesignation of an empire zone
22 or of the revision or termination of such designation with the appli-
23 cant, the department of taxation and finance, the secretary of state,
24 with the county, city, town or village clerk of each county, city, town,
25 or village, respectively, in which the empire zone is located, with the
26 school district governing body in which the empire zone is located, with
27 the state board of real property services and with other state and local
28 entities; provided, however, that such notice shall specify the date
29 such action was taken and shall contain a description sufficient to
30 identify the empire zone, including the names of the abutting streets,
31 roads, highways, bodies of water, or other identifying physical
32 features;
33 [(f)] (e) Request, and shall receive from any department, division,
34 board, bureau, commission, agency or public authority of the state such
35 assistance as may be necessary to establish a procedure whereby applica-
36 tions submitted by business entities, community-based organizations,
37 not-for-profit organizations, human service agencies, labor unions and
38 municipal agencies located within an empire zone requesting financial
39 and other assistance provided by state programs, including, but not
40 limited to, capital development, human resource development, business
41 assistance, job training and job placement shall, consistent with feder-
42 al law, be given priority over applications submitted by entities not
43 located in empire zones;
44 [(g)] (f) Establish a priority for the allocation of authority to
45 issue private activity bonds for the benefit of municipalities and busi-
46 ness enterprises located or to be located within empire zones;
47 [(h)] (g) Coordinate, with the local empire zone administrative board
48 and state agencies and authorities, the provision of business develop-
49 ment programs and services for each empire zone in order to stimulate
50 the creation and development of new small businesses, including new
51 small minority-owned and women-owned business enterprises, and may
52 request and shall receive from any department, division, board, bureau,
53 commission, agency or public authority of the state such assistance as
54 may be necessary;
55 [(i)] (h) Coordinate with the comptroller and the commissioner of
56 taxation and finance a linked deposit program. The comptroller and the
S. 60--A 52 A. 160--A
1 commissioner of taxation and finance are hereby authorized and empowered
2 to enter into agreements with financial institutions located in or serv-
3 ing the empire zones, to provide for the deposit of funds administered
4 jointly by them in such institutions, at reduced rates of return to the
5 state, in return for commitments by such institutions to businesses of
6 loans of comparable amounts, at reduced interest rates, for business
7 development projects in the zones that will create or preserve jobs;
8 [(j)] (i) Assist each local empire zone board in preparing a small
9 business assistance plan as required by section nine hundred sixty-three
10 of this article and coordinate with the local empire zone administrative
11 board and state agencies and authorities the development of small busi-
12 ness procurement, export and marketing programs for businesses within
13 the empire zones;
14 [(k)] (j) Promulgate regulations[, in consultation with the commis-
15 sioner of labor,] for program evaluation and coordinate implementation
16 of an evaluation system, which is capable of compiling and analyzing
17 accurate and consistent information necessary for an assessment of
18 whether statutory objectives and criteria are being met;
19 [(l)] (k) Review performance objectives and progress in meeting objec-
20 tives with zone boards and zone administrative entities as part of the
21 annual administrative contract process;
22 [(m)] (l) Assist zone boards and zone administrative entities to
23 effect and implement job training and social services agreements and
24 programs provided for in paragraphs (v), (vi) and (vii) of subdivision
25 [(b)] (a) of section nine hundred sixty-three of this article and
26 request and receive from any agency or authority of the state such
27 assistance as may be necessary to improve the delivery and coordination
28 of human resource development programs to the zones;
29 [(n)] (m) Assist zones in increasing their child care capacity and in
30 planning special care activities, including the provision of technical
31 assistance by the department in planning for the provision of child care
32 services in the zones;
33 [(o)] (n) Coordinate with the department of labor, the state education
34 department, the job training partnership council and agencies of the
35 state the inclusion in annual and biennial plans of such entities strat-
36 egies for increasing and improving human resource development services
37 on a priority basis, consistent with federal statutory and regulatory
38 requirements, to residents of the zones and employees of zone busi-
39 nesses, including, but not limited to, the governor's plan for coordi-
40 nation and special services of the job training partnership council, the
41 jobs plan and Wagner-Peyser annual plan for services of the department
42 of labor, and the career education state plan of the state education
43 department;
44 [(p)] (o) Arrange with the job training partnership council the
45 provision of the workforce investment act funds for use within the zones
46 with the cooperation of the service delivery areas in the governor's
47 plan for coordination and special services;
48 [(q)] (p) Subject to the availability of funds, arrange for the allo-
49 cation and reservation of funds from the infrastructure improvement
50 programs of state agencies and authorities to assist the zones to make
51 public improvements necessary for community, commercial, industrial and
52 tourism development projects in support of zone revitalization;
53 [(r)] (q) Systematically enlist other state agencies and authorities
54 to participate in zone programs and projects and in cooperative planning
55 of interagency zone activities in support of zone revitalization
56 efforts;
S. 60--A 53 A. 160--A
1 [(s)] (r) Recommend for economic development loan and grant programs
2 of the department of economic development, urban development corpo-
3 ration, job development authority, and science and technology foundation
4 special terms and conditions for viable zone projects and programs;
5 [(t)] (s) Award preference to be given to applications submitted by or
6 on behalf of zones for entrepreneurial assistance programs under article
7 nine of the omnibus economic development act of nineteen hundred eight-
8 y-seven to support the creation of new entrepreneurial development and
9 entrepreneurial support centers;
10 [(u)] (t) Coordinate with the urban development corporation the
11 creation of a special category of assistance for zones within the
12 regional economic development partnership program, which will make
13 available economic development assistance grants for zone programs and
14 activities, including, but not limited to, planning, service coordi-
15 nation, and local institutional capacity building for human resource
16 development necessary for economic revitalization; planning and develop-
17 ment of small business incubators; job placement and preparedness
18 programs for zones residents; education and training programs for zone
19 businesses; child care programs and projects supportive of business
20 development; technical assistance for minority and women-owned business
21 development; training for zone officials; business and tourism develop-
22 ment and marketing programs; and other innovative programs and activ-
23 ities in support of economic and community development within the zones;
24 [and]
25 [(v)] (u) Assist in the development of a plan, in coordination with
26 the health and insurance departments, to assist zones in obtaining
27 affordable employee health insurance for small business enterprises
28 located within the zone[.];
29 [(w)] (v) Approve applications for qualification of a business enter-
30 prise as the owner of a qualified investment project or as the owner of
31 a significant capital investment project, as defined in subdivisions (s)
32 and (t), respectively, of section nine hundred fifty-seven of this arti-
33 cle. As a condition for approval of such application, the commissioner
34 is authorized to specify certain requirements to be satisfied as a
35 condition for approval of such application as the commissioner deems
36 necessary to ensure that the project will make a substantial contrib-
37 ution to the economic development of this state. An application for
38 qualification of a business enterprise as the owner of a qualified
39 investment must be submitted by December thirty-first, two thousand
40 nine. An application for qualification of a business as the owner of a
41 significant capital investment project as defined in subdivision (t) of
42 section nine hundred fifty-seven of this article, which application is
43 submitted by an entity previously qualified by the commissioner as the
44 owner of a qualified investment project or an entity which is a related
45 person, as that term is defined in section 465(b)(3)(c) of the internal
46 revenue code, to an entity previously qualified by the commissioner as
47 the owner of a qualified investment project, must be submitted by June
48 thirtieth, two thousand eleven. No applications submitted after these
49 dates may be approved; and
50 (w) Conduct a review during calendar year two thousand nine of all
51 business enterprises certified before April first, two thousand five to
52 determine whether the business enterprises have met the requirements of
53 the cost-benefit analysis as set forth in subdivision (q) of section
54 nine hundred fifty-seven of this article and the regulations promulgated
55 under this article. Thereafter in succeeding calendar years, the commis-
56 sioner shall conduct a review of all business enterprises certified on
S. 60--A 54 A. 160--A
1 or after April first, two thousand five, to determine whether the busi-
2 ness enterprises have met the requirements of the cost-benefit analysis
3 as set forth in subdivision (q) of section nine hundred fifty-seven of
4 this article and the regulations promulgated under this article. The
5 cost-benefit analyses referred to in this subdivision shall be based
6 upon data contained in at least three business annual reports filed by
7 the business enterprise. If the commissioner determines that a business
8 enterprise meets the requirements of the cost-benefit analysis described
9 above, the commissioner shall issue an empire zone retention certificate
10 to the business enterprise establishing that the business enterprise has
11 retained its certification under this article. If any business enter-
12 prise fails the cost-benefit analysis described above, the commissioner
13 shall revoke the certification of such business enterprise pursuant to
14 paragraph (ii) of subdivision (a) of this section and as specified here-
15 in; provided, however, the commissioner may consider, in his or her sole
16 discretion, other economic, social and environmental factors when evalu-
17 ating the costs and benefits of a project to the state and whether
18 continued certification is warranted based on such factors. The commis-
19 sioner shall provide written notification to such business enterprise of
20 his or her determination to revoke the certification, including the
21 reasons therefor. Such notification shall state that the business enter-
22 prise may appeal the determination by sending a written notice to the
23 commissioner of such appeal no later than ten business days from the
24 date of the commissioner's revocation notification. Provided that the
25 business enterprise appeals the commissioner's determination within ten
26 business days of the commissioner's revocation notification, the busi-
27 ness enterprise may present a written submission to the commissioner no
28 later than sixty days following the date the commissioner's revocation
29 notification was sent to the business enterprise explaining why it
30 failed the cost-benefit analysis. The commissioner shall consider the
31 explanation provided by the business enterprise, but shall not reverse
32 the determination to revoke the business enterprise's certification if
33 the commissioner finds in his or her sole discretion that there was
34 insufficient evidence presented demonstrating that the business enter-
35 prise in fact met the requirements of the cost-benefit analysis, or that
36 any extraordinary circumstances occurred which would explain why the
37 business enterprise failed the cost-benefit analysis.
38 § 4. Subdivisions (b) and (c) of section 959-b of the general munici-
39 pal law, as added by section 17 of part W1 of chapter 109 of the laws of
40 2006, are amended to read as follows:
41 (b) The commissioner of economic development shall serve as the sole
42 certification officer for businesses seeking certification as a clean
43 energy enterprise. The commissioner of economic development, after
44 consultation with the executive director of the New York state energy
45 research and development authority, shall promulgate regulations govern-
46 ing (i) criteria of eligibility for designation of a clean energy enter-
47 prise, (ii) the application process, and (iii) the certification by the
48 commissioner of economic development as to the eligibility of business
49 enterprises for benefits referred to in section nine hundred sixty-six
50 of this article. A business so certified shall be deemed to be eligible
51 for such benefits as if such business were located in an investment zone
52 as defined in paragraph (i) of subdivision (d) of section nine hundred
53 fifty-seven of this article. No such certification shall be made after
54 [December] March thirty-first, two thousand [eleven] nine.
55 (c) Such enterprise shall be exempt from the requirements of paragraph
56 (iii) of subdivision (a) of section nine hundred fifty-eight, sections
S. 60--A 55 A. 160--A
1 [nine hundred sixty-one,] nine hundred sixty-two and nine hundred
2 sixty-three of this article.
3 § 5. Subdivisions (a-1) and (a-2) and the opening paragraph of para-
4 graph (ii) of subdivision (e) of section 960 of the general municipal
5 law, subdivision (a-1) as amended by section 2 of part HH of chapter 59
6 of the laws of 2006, subdivision (a-2) as added and the opening para-
7 graph of paragraph (ii) of subdivision (e) as amended by section 5 of
8 part A of chapter 63 of the laws of 2005, are amended to read as
9 follows:
10 (a-1) The empire zones designation board may consider designating
11 empire zone acreage for the following categories of regionally signif-
12 icant projects as set forth in section nine hundred fifty-seven of this
13 article submitted for approval no later than March thirty-first, two
14 thousand nine: agri-business or high tech or biotech business making a
15 capital investment of ten million dollars and creating twenty or more
16 jobs; or a financial or insurance services or distribution center creat-
17 ing three hundred or more jobs; or a clean energy research and develop-
18 ment enterprise. Such consideration shall be upon application submitted
19 by the [local zone administrative board and/or the] commissioner no
20 later than March thirty-first, two thousand nine. Such application shall
21 be made after a public hearing in accordance with section nine hundred
22 sixty-nine of this article and in accordance with findings which shall
23 consider factors including but not limited to: the creation and
24 retention of a regionally significant number of skilled or otherwise
25 quality jobs; substantial capital investment; or the export of a
26 substantial amount of goods or services beyond the immediate region; and
27 further findings as to why such project cannot be accommodated within
28 the distinct and separate contiguous areas pursuant to section nine
29 hundred fifty-seven of this article. Such findings shall be published
30 once a week for four successive weeks, in two newspapers of the county
31 of which the project is to be located or if no newspaper is published
32 therein, in the newspaper nearest thereto. Proof of such publication
33 shall be submitted to the board. The board shall not act on such project
34 or projects until thirty days of the final publication of such findings.
35 (a-2) The empire zones designation board may consider designating
36 empire zone acreage for other regionally significant projects in accord-
37 ance with section nine hundred fifty-seven of this article, upon appli-
38 cation submitted by the [local zone administrative board and/or the]
39 commissioner no later than March thirty-first, two thousand nine. Such
40 application shall be made after a public hearing in accordance with
41 section nine hundred sixty-nine of this article and in accordance with
42 findings which shall consider factors including, but not limited to: the
43 creation and retention of a regionally significant number of skilled or
44 otherwise quality jobs; substantial capital investment; or the export of
45 a substantial amount of goods or services beyond the immediate region;
46 and further findings as to why such project cannot be accommodated with-
47 in the distinct and separate contiguous areas pursuant to section nine
48 hundred fifty-seven of this article. Such findings shall be published
49 once a week for four successive weeks, in two newspapers of the county
50 of which the project is to be located or if no newspaper is published
51 therein, in the newspaper nearest thereto. Proof of such publication
52 shall be submitted to the board. The board shall not act on such project
53 or projects until thirty days of the final publication of such findings.
54 Provided, however, that the commissioner shall promulgate rules and
55 regulations for the implementation of this subdivision after approval by
56 the empire zones designation board. Provided further, approval of such
S. 60--A 56 A. 160--A
1 projects and related regulations requires an affirmative vote by at
2 least five voting members of such board.
3 An entity independent of the department shall conduct and submit to
4 the governor and the legislature by no later than [December] August
5 thirty-first, two thousand [nine] ten, a comprehensive evaluation of the
6 performance of the zones program and of individual zones on meeting
7 criteria established pursuant to this section. The criteria by which the
8 empire zones program and individual zones are to be evaluated shall
9 include, but not be limited to, the following:
10 § 6. Section 961 of the general municipal law is REPEALED.
11 § 7. Subdivision (y) of section 962 of the general municipal law, as
12 added by section 5 of part A of chapter 63 of the laws of 2005, is
13 amended to read as follows:
14 (y) a description of how the local economic development entities, [as
15 described in paragraph (xii) of subdivision (b) of section nine hundred
16 sixty-one of this article] including but not limited to the local devel-
17 opment corporation, local development councils, authorities, agencies
18 and all other such entitles concerned with the economic development of
19 the municipality, will integrate its services to allow for the best
20 possible economic development support for the zone;
21 § 8. Subdivision (cc) of section 962 of the general municipal law is
22 REPEALED.
23 § 9. Subdivision (a) of section 963 of the general municipal law is
24 REPEALED and subdivisions (b), (c), (d), (e), (f) and (g) are relettered
25 (a), (b), (c), (d), (e) and (f).
26 § 10. Subdivision (f) of section 963 of the general municipal law, as
27 added by section 5 of part A of chapter 63 of the laws of 2005, and as
28 relettered by section nine of this act, is amended to read as follows:
29 (f) All [certified] businesses certified on or before March thirty-
30 first, two thousand nine are required to provide a certified annual
31 report to the local zone administration board which report shall include
32 but not be limited to the following:
33 (i) Business certification information to include: organization name,
34 organization address in the zone, contact information, federal employ-
35 ment ID number, New York state unemployment insurance number, state of
36 formation or incorporation, verification that the business is authorized
37 to conduct business in the state of New York;
38 (ii) Employment numbers calculated in the same manner in which the
39 employment number is required to be calculated by section fourteen of
40 the tax law including: total existing full-time equivalent jobs [in the
41 zone] at the location or locations approved by the commissioner as of
42 the date of certification [within that zone], total existing jobs [in
43 the zone] at the location or locations approved by the commissioner for
44 the year for which the report is being provided, total remuneration paid
45 to employees [in the zone] at the location or locations approved by the
46 commissioner each quarter of the reported year, total number of employ-
47 ees in all [zones] locations, total annual remuneration in all [zones]
48 locations, total annual remuneration paid in New York state for the
49 reported year, total employment number in New York state for the
50 reported year as shown on each business' NYS-45 wage reporting form
51 filed with the department of labor;
52 (iii) Capital investment to include: total investment made in the
53 [zone] location or locations approved by the commissioner for the
54 reported year[, with such investment being made with respect to tangible
55 personal property or other tangible property which is depreciable pursu-
S. 60--A 57 A. 160--A
1 ant to section one hundred seventy-nine (d) of the internal revenue
2 code];
3 (iv) Tax [credits claimed] benefits used and refunded: provide an
4 estimation of the amount of the [following credits claimed] tax benefits
5 used and refunded for the reported year by the certified business, or by
6 the taxpayers within the certified business including its shareholders,
7 members, partners or the owner of a sole proprietorship[:] including the
8 wage tax credits, investment tax credits, employment incentive tax cred-
9 its, real property tax credit, [and] tax reduction credit; and
10 (v) [Other benefits: estimated value to the certified business of the]
11 The sales tax [exemption] credits and refunds for the reported year.
12 § 11. Subdivision (a) of section 964 of the general municipal law, as
13 amended by chapter 708 of the laws of 1993 and as further amended pursu-
14 ant to section 15 of part GG of chapter 63 of the laws of 2000, is
15 amended to read as follows:
16 (a) No more than three empire zone capital corporations may be estab-
17 lished in each zone for the purpose of raising funds through private and
18 public grants, donations or investments, to be used in making invest-
19 ments in, and loans to, business firms certified pursuant to subdivision
20 (a) of section nine hundred [sixty-three] fifty-nine of this article for
21 the purpose of encouraging the establishment or expansion of businesses
22 and the provision of additional job opportunities within such area. A
23 zone capital corporation may serve one or more zones within an economic
24 development region or zones within two or more regions. Prior to the
25 establishment of a zone capital corporation, the zone board and the
26 commissioner of the department of economic development shall approve the
27 formation of the proposed zone capital corporation, its board of direc-
28 tors and management, and its procedures for making, servicing and moni-
29 toring investments. In no event, however, shall an empire zone capital
30 corporation acquire an ownership interest in any certified business firm
31 which amounts to more than twenty-five percent of the ownership interest
32 of such certified business firm. No loan to or investment in any busi-
33 ness firm shall be made by an empire zone capital corporation located in
34 a zone within a town with a population of more than twenty-five thou-
35 sand, until such corporation has accumulated at least two hundred thou-
36 sand dollars in capital stock. No loan or investment in any business
37 firm shall be made by an empire zone capital corporation located in a
38 zone within a town with a population of less than twenty-five thousand
39 until such corporation has accumulated at least one hundred thousand
40 dollars in capital stock. A zone capital corporation shall submit to the
41 zone board an annual report on its activities.
42 § 12. Subdivision (b) and the opening paragraph of subdivision (c) of
43 section 969 of the general municipal law, as amended by section 5 of
44 part A of chapter 63 of the laws of 2005, are amended to read as
45 follows:
46 (b) After consultation with the director of the budget [and the
47 commissioner of labor], the commissioner may terminate the designation
48 of an area as an empire zone upon a finding that (1) the applicant has
49 failed substantially to implement the empire zone development plan with-
50 in the time stated therein; (2) there has been no substantial business
51 development or job creation within the area designated as an empire zone
52 within five years after such designation; (3) there has been inadequate
53 management and evaluation of the zone at the local level; or (4) the
54 applicant has repeatedly failed to comply with program reporting
55 requirements, provided, however, that no termination shall occur unless
56 and until written notice has been given to the applicant and a public
S. 60--A 58 A. 160--A
1 hearing has been held thirty days prior to the effective date of such
2 termination.
3 The governing body of a city, county, town or village may, by resol-
4 ution, submit to the commissioner a request to revise the boundaries of
5 an existing empire zone. The commissioner may[, after consultation with
6 the commissioner of labor,] approve such revision subject to the follow-
7 ing provisions:
8 § 13. The general municipal law is amended by adding a new section 970
9 to read as follows:
10 § 970. Certification of manufacturing (including high-tech, bio-tech,
11 clean-tech and agri-business), and financial service enterprises, and
12 extraordinary projects.
13 (a) Notwithstanding anything to the contrary set forth in this arti-
14 cle, commencing April first, two thousand nine, only (i) manufacturing
15 (including high-tech, bio-tech, clean-tech, and agri-business) and
16 financial service enterprises and extraordinary projects, as defined in
17 the regulations promulgated pursuant to subdivisions (b) and (c) of this
18 section, and (ii) the owner of a qualified investment project or a
19 significant capital investment project, in accordance with the require-
20 ments and conditions set forth in subdivision (v) of section nine
21 hundred fifty-nine of this article, may apply for certification pursuant
22 to this article.
23 (b) The commissioner shall serve as the sole certification officer for
24 business enterprises applying for certification as manufacturing
25 (including high-tech, bio-tech, clean-tech and agri-business) and finan-
26 cial service enterprises. The commissioner shall promulgate regulations
27 (i) defining manufacturing (including high-tech, bio-tech, clean-tech
28 and agri-business) and financial service enterprises; (ii) governing the
29 criteria for the certification of manufacturing (including high-tech,
30 bio-tech, clean-tech and agri-business) and financial service enter-
31 prises (which criteria shall include, but not be limited to, meeting the
32 requirements of the cost benefit analysis referred to in subdivision (p)
33 of section nine hundred fifty-seven of this article); and (iii) estab-
34 lishing the application process for certification. Notwithstanding any
35 other provisions to the contrary in the state administrative procedure
36 act, such regulations may be adopted on an emergency basis. A business
37 so certified shall be deemed to be eligible for benefits referred to in
38 section nine hundred sixty-six of this article as if such business were
39 located in an investment zone as defined in paragraph (i) of subdivision
40 (d) of section nine hundred fifty-seven of this article.
41 (c) The commissioner shall serve as the sole certification officer for
42 business enterprises applying for certification of extraordinary
43 projects. The commissioner shall promulgate regulations (i) defining
44 extraordinary projects; (ii) establishing the application process for
45 certification; and (iii) governing the criteria for certification of an
46 extraordinary project, which criteria shall include, but not be limited
47 to, (1) whether the extraordinary project, if certified, is reasonably
48 likely to create substantial new employment or prevent a substantial
49 loss of employment; (2) whether certification will have the undesired
50 effect of causing individuals to transfer from existing employment with
51 another business enterprise to similar employment with the business
52 enterprise so certified, and transferring existing employment from one
53 of more other municipalities, towns or villages in the state; (3) wheth-
54 er such extraordinary project is likely to bring substantial capital
55 investment; (4) whether the extraordinary project is likely to lead to
56 the export of a substantial amount of goods or services beyond the imme-
S. 60--A 59 A. 160--A
1 diate region; (5) whether the business enterprise, during the three
2 years preceding the submission of an application for certification, has
3 engaged in a substantial violation or a pattern of violations of laws
4 regulating environmental protection, unemployment insurance, workers'
5 compensation, public work, child labor, employment of minorities and
6 women, safety and health, or other laws for the protection of workers as
7 determined by final judgment of a judicial or administrative proceeding;
8 (6) if the commissioner establishes that the business enterprise has
9 been found in a criminal proceeding to have violated, in the previous
10 three years, any of the laws referred to in paragraph five of this
11 subdivision or regulations promulgated pursuant to such laws, the condi-
12 tions of any permit issued thereunder, or similar statute, regulation,
13 order or permit condition of any other government agency, foreign or
14 domestic, such business shall not be certified. Notwithstanding any
15 other provisions to the contrary in the state administrative procedure
16 act, such regulations may be adopted on an emergency basis. A business
17 so certified shall be deemed to be eligible for such benefits as if such
18 business were located in an investment zone as defined in paragraph (i)
19 of subdivision (d) of section nine-hundred fifty-seven of this article.
20 (d) All business enterprises certified on or after April first, two
21 thousand nine pursuant to subdivisions (b) or (c) of this section or
22 pursuant to subdivision (w) of section nine hundred fifty-nine of this
23 article shall be required to meet the requirements of the cost-benefit
24 analysis established in subdivision (q) of section nine hundred fifty-
25 seven of this article and the regulations promulgated under this article
26 after they have been certified for at least three years. Failure to meet
27 the requirements of the cost-benefit analysis shall result in the busi-
28 ness enterprise being decertified pursuant to paragraph (ii) of subdivi-
29 sion (a) of section nine hundred fifty-nine of this article, unless the
30 commissioner makes a determination in his or her discretion to retain
31 the certification of a business enterprise, notwithstanding the failure
32 to meet the requirements of the cost-benefit analysis, in accordance
33 with subdivision (w) of section nine hundred fifty-nine of this article.
34 (e) All businesses certified pursuant to this section are required to
35 provide a certified annual report to the commissioner which report shall
36 include but not be limited to the following:
37 (i) Business certification information to include: organization name,
38 organization address, contact information, federal employment ID number,
39 New York state unemployment insurance number, state of formation or
40 incorporation, verification that the business is authorized to conduct
41 business in the state of New York;
42 (ii) Employment numbers calculated in the same manner in which the
43 employment number is required to be calculated by section fourteen of
44 the tax law including: total existing full-time equivalent jobs at the
45 location or locations approved by the commissioner as of the date of
46 certification, total existing jobs at the location or locations approved
47 by the commissioner for the year for which the report is being provided,
48 total remuneration paid to employees at the location or locations
49 approved by the commissioner each quarter of the reported year, total
50 number of employees in all locations, total annual remuneration in all
51 locations, total annual remuneration paid in New York state for the
52 reported year, total employment number in New York state for the
53 reported year as shown on each business' NYS-45 wage reporting form
54 filed with the department of labor;
55 (iii) Total capital investment made in the location or locations
56 approved by the commissioner for the reported year;
S. 60--A 60 A. 160--A
1 (iv) Total empire zone tax benefits: provide an estimation of the
2 total amount of empire zone tax benefits used and the total amount of
3 empire zone tax benefits refunded for the reported year by the certified
4 business, or by the taxpayers within the certified business including
5 its shareholders, members, partners or the owner of a sole proprietor-
6 ship, including but not limited to wage tax credits, investment tax
7 credits, employment incentive tax credits, real property tax credit, tax
8 reduction credit; and sales tax benefits.
9 § 14. Subdivision 19 of section 210 of the tax law is amended by
10 adding a new paragraph (e-1) to read as follows:
11 (e-1) Any carry over of a credit from prior taxable years will not be
12 allowed if an empire zone retention certificate is not issued pursuant
13 to subdivision (w) of section nine hundred fifty-nine of the general
14 municipal law to the empire zone enterprise which is the basis of the
15 credit.
16 § 15. Subsection (k) of section 606 of the tax law is amended by
17 adding a new paragraph 5-a to read as follows:
18 (5-a) Any carry over of a credit from prior taxable years will not be
19 allowed if an empire zone retention certificate is not issued pursuant
20 to subdivision (w) of section nine hundred fifty-nine of the general
21 municipal law to the empire zone enterprise which is the basis of the
22 credit.
23 § 16. Subsection (e) of section 1456 of the tax law is amended by
24 adding a new paragraph 5-a to read as follows:
25 (5-a) Any carry over of a credit from prior taxable years will not be
26 allowed if an empire zone retention certificate is not issued pursuant
27 to subdivision (w) of section nine hundred fifty-nine of the general
28 municipal law to the empire zone enterprise which is the basis of the
29 credit.
30 § 17. Subdivision (g) of section 1511 of the tax law is amended by
31 adding a new paragraph 5-a to read as follows:
32 (5-a) Any carry over of a credit from prior taxable years will not be
33 allowed if an empire zone retention certificate is not issued pursuant
34 to subdivision (w) of section nine hundred fifty-nine of the general
35 municipal law to the empire zone enterprise which is the basis of the
36 credit.
37 § 18. Subdivision 12-B of section 210 of the tax law is amended by
38 adding a new paragraph (d-1) to read as follows:
39 (d-1) Any carry over of a credit from prior taxable years will not be
40 allowed if an empire zone retention certificate is not issued pursuant
41 to subdivision (w) of section nine hundred fifty-nine of the general
42 municipal law to the empire zone enterprise which is the basis of the
43 credit.
44 § 19. Subsection (j) of section 606 of the tax law is amended by
45 adding a new paragraph 4-a to read as follows:
46 (4-a) Any carry over of a credit from prior taxable years will not be
47 allowed if an empire zone retention certificate is not issued pursuant
48 to subdivision (w) of section nine hundred fifty-nine of the general
49 municipal law to the empire zone enterprise which is the basis of the
50 credit.
51 § 20. Subdivision 12-C of section 210 of the tax law is amended by
52 adding a new paragraph (c-1) to read as follows:
53 (c-1) Any carry over of a credit from prior taxable years will not be
54 allowed if an empire zone retention certificate is not issued pursuant
55 to subdivision (w) of section nine hundred fifty-nine of the general
S. 60--A 61 A. 160--A
1 municipal law to the empire zone enterprise which is the basis of the
2 credit.
3 § 21. Subsection (j-1) of section 606 of the tax law is amended by
4 adding a new paragraph 3-a to read as follows:
5 (3-a) Any carry over of a credit from prior taxable years will not be
6 allowed to an empire zone enterprise which is the basis of the credit,
7 if an empire zone retention certificate is not issued to such entity
8 pursuant to subdivision (w) of section nine hundred fifty-nine of the
9 general municipal law.
10 § 22. Subdivision 20 of section 210 of the tax law is amended by
11 adding a new paragraph (b-1) to read as follows:
12 (b-1) Any carry over of a credit from prior taxable years will not be
13 allowed to an empire zone enterprise which is the basis of the credit,
14 if an empire zone retention certificate is not issued to such entity
15 pursuant to subdivision (w) of section nine hundred fifty-nine of the
16 general municipal law.
17 § 23. Subsection (1) of section 606 of the tax law is amended by
18 adding a new paragraph 1-a to read as follows:
19 (1-a) Any carry over of a credit from prior taxable years will not be
20 allowed to an empire zone enterprise which is the basis of the credit,
21 if an empire zone retention certificate is not issued to such entity
22 pursuant to subdivision (w) of section nine hundred fifty-nine of the
23 general municipal law.
24 § 24. Subsection (d) of section 1456 of the tax law is amended by
25 adding a new paragraph 2-a to read as follows:
26 (2-a) Any carry over of a credit from prior taxable years will not be
27 allowed to an empire zone enterprise which is the basis of the credit,
28 if an empire zone retention certificate is not issued to such entity
29 pursuant to subdivision (w) of section nine hundred fifty-nine of the
30 general municipal law.
31 § 25. Subdivision (h) of section 1511 of the tax law is amended by
32 adding a new paragraph 2-a to read as follows:
33 (2-a) Any carry over of a credit from prior taxable years will not be
34 allowed to an empire zone enterprise which is the basis of the credit,
35 if an empire zone retention certificate is not issued to such entity
36 pursuant to subdivision (w) of section nine hundred fifty-nine of the
37 general municipal law.
38 § 26. Section 1088 of the tax law is amended by adding a new
39 subsection (h) to read as follows:
40 (h) Notwithstanding any other provision in this section, for taxable
41 years beginning on or after January first, two thousand eight and before
42 January first, two thousand nine, interest will be allowed on an over-
43 payment on any return or report on which one or more empire zone tax
44 credits are claimed, only from the one hundred eightieth day after the
45 taxpayer files with the department an empire zone retention certificate
46 issued pursuant to subdivision (w) of section nine hundred fifty-nine of
47 the general municipal law to the empire zone enterprise which is the
48 basis for the tax credit or credits claimed on the return or report.
49 § 27. Section 688 of the tax law is amended by adding a new subsection
50 (h) to read as follows:
51 (h) Notwithstanding any other provisions in this section, for taxable
52 years beginning on or after January first, two thousand eight and before
53 January first, two thousand nine, interest will be allowed on an over-
54 payment on any return or report on which one or more empire zone tax
55 credits are claimed, only from the one hundred eightieth day after the
56 taxpayer files with the department an empire zone retention certificate
S. 60--A 62 A. 160--A
1 issued pursuant to subdivision (w) of section nine hundred fifty-nine of
2 the general municipal law to the empire zone enterprise which is the
3 basis for the tax credit or credits claimed on the return or report.
4 § 28. Subsection (c) of section 1089 of the tax law is amended by
5 adding a new paragraph 4 to read as follows:
6 (4) Notwithstanding paragraph three of this subsection, no petition
7 may be filed by a taxpayer claiming a refund of one or more empire zone
8 tax credits for a taxable year beginning on or after January first, two
9 thousand eight and before January first, two thousand nine, until six
10 months have expired after the date on which an empire zone retention
11 certificate was issued pursuant to subdivision (w) of section nine
12 hundred fifty-nine of the general municipal law to the empire zone
13 enterprise which is the basis for the tax credit or credits claimed on
14 the return or report.
15 § 29. Subsection (c) of section 689 of the tax law is amended by
16 adding a new paragraph 4 to read as follows:
17 (4) Notwithstanding paragraph three of this subsection, no petition
18 may be filed by a taxpayer claiming a refund of one or more empire zone
19 tax credits for a taxable year beginning on or after January first, two
20 thousand eight and before January first, two thousand nine, until six
21 months have expired after the date on which an empire zone retention
22 certificate was issued pursuant to subdivision (w) of section nine
23 hundred fifty-nine of the general municipal law to the empire zone
24 enterprise which is the basis for the tax credit or credits claimed on
25 the return or report.
26 § 30. Section 1085 of the tax law is amended by adding a new
27 subsection (k-2) to read as follows:
28 (k-2) No penalty will be imposed pursuant to subsection (c) or (k) of
29 this section for a taxable year beginning on or after January first, two
30 thousand eight and before January first, two thousand nine resulting
31 from the denial of an empire zone tax credit claimed by the taxpayer
32 because an empire zone retention certificate was not issued pursuant to
33 subdivision (w) of section nine hundred fifty-nine of the general munic-
34 ipal law to the empire zone enterprise which is the basis for the tax
35 credit or credits claimed on the return or report.
36 § 31. Section 685 of the tax law is amended by adding a new subsection
37 (p-2) to read as follows:
38 (p-2) No penalty will be imposed pursuant to subsection (c) or (p) of
39 this section for a taxable year beginning on or after January first, two
40 thousand eight and before January first, two thousand nine resulting
41 from the denial of an empire zone tax credit claimed by the taxpayer
42 because an empire zone retention certificate was not issued pursuant to
43 subdivision (w) of section nine hundred fifty-nine of the general munic-
44 ipal law to the empire zone enterprise which is the basis for the tax
45 credit or credits claimed on the return.
46 § 32. Subdivision (z) of section 1115 of the tax law is REPEALED.
47 § 33. Section 1119 of the tax law is amended by adding a new subdivi-
48 sion (d) to read as follows:
49 (d)(1) Subject to the conditions and limitations provided for in this
50 section, a refund or credit will be allowed for taxes imposed on the
51 retail sale of tangible personal property described in subdivision (a)
52 of section eleven hundred five of this article, and on every sale of
53 services described in subdivisions (b) and (c) of such section, and on
54 the retail sale of pre-written computer software, whether subject to the
55 tax under subdivision (a) or (g) of such section, and consideration
56 given or contracted to be given for, or for the use of, such tangible
S. 60--A 63 A. 160--A
1 personal property or services, or pre-written computer software where
2 such tangible personal property or services or pre-written computer
3 software are sold to a qualified empire zone enterprise, provided that
4 (A) such tangible personal property or tangible personal property upon
5 which such a service has been performed or such service (other than a
6 service described in subdivision (b) of section eleven hundred five of
7 this article) or pre-written computer software is directly and predomi-
8 nantly, or such a service described in clause (A) or (D) of paragraph
9 one of such subdivision (b) of section eleven hundred five of this arti-
10 cle is directly and exclusively, used or consumed by such enterprise in
11 an area designated as an empire zone pursuant to article eighteen-B of
12 the general municipal law with respect to which such enterprise is
13 certified pursuant to such article eighteen-B, or (B) such a service
14 described in clause (B) or (C) of paragraph one of subdivision (b) of
15 section eleven hundred five of this article is delivered and billed to
16 such enterprise at an address in such empire zone, or (C) the enter-
17 prise's place of primary use of the service described in paragraph two
18 of such subdivision (b) of section 1105 is at an address in such empire
19 zone; provided, further, that, in order for a motor vehicle, as defined
20 in subdivision (c) of section eleven hundred seventeen of this article,
21 or tangible personal property related to such a motor vehicle to be
22 found to be used predominantly in such a zone, at least fifty percent of
23 such motor vehicle's use shall be exclusively within such zone or at
24 least fifty percent of such motor vehicle's use shall be in activities
25 originating or terminating in such zone, or both; and either or both
26 such usages shall be computed either on the basis of mileage or hours of
27 use, at the discretion of such enterprise. For purposes of this subdivi-
28 sion, tangible personal property related to such a motor vehicle shall
29 include a battery, diesel motor fuel, an engine, engine components,
30 motor fuel, a muffler, tires and similar tangible personal property used
31 in or on such a motor vehicle.
32 (2) Subject to the conditions and limitations provided for in this
33 section, a refund or credit will be allowed for taxes imposed on the
34 retail sale of, and consideration given or contracted to be given for,
35 or for the use of, tangible personal property sold to a contractor,
36 subcontractor or repairman for use in (A) erecting a structure or build-
37 ing of a qualified empire zone enterprise, (B) adding to, altering or
38 improving real property, property or land of such an enterprise or (C)
39 maintaining, servicing or repairing real property, property or land of
40 such an enterprise, as the terms real property, property or land are
41 defined in the real property tax law; provided, however, no credit or
42 refund will be allowed under this paragraph unless such tangible
43 personal property is to become an integral component part of such struc-
44 ture, building, real property, property or land located in an area
45 designated as an empire zone pursuant to article eighteen-B of the
46 general municipal law in, and with respect to which such enterprise is
47 certified pursuant to such article eighteen-B.
48 (3) Except as otherwise provided by law, the refund or credit provided
49 for in this subdivision will not apply to taxes imposed by paragraphs
50 ten and thirteen of subdivision (c) of sections 1105-d, 1105-f, and
51 eleven hundred seven of this article or to taxes imposed pursuant to the
52 authority of article twenty-nine of this chapter.
53 (4) In those instances when the provisions of subdivision (w) of
54 section nine hundred fifty-nine of the general municipal law are appli-
55 cable, no refund or credit will be allowed under this subdivision unless
S. 60--A 64 A. 160--A
1 the qualified empire zone enterprise has been issued an empire zone
2 retention certificate.
3 (5) A taxpayer may not apply for a credit or refund under this subdi-
4 vision more frequently than once a sales tax quarter, pursuant to subdi-
5 vision (b) of section eleven hundred thirty-six of the tax law.
6 (6) Any reference in this chapter to subdivision (z) of section eleven
7 hundred fifteen of this article will be deemed to be a reference to this
8 subdivision.
9 § 34. Paragraph 2 of subdivision (a) of section 14 of the tax law, as
10 amended by section 1 of part AA of chapter 62 of the laws of 2006, is
11 amended to read as follows:
12 (2) for purposes of articles twenty-eight and twenty-nine of this
13 chapter, during the "sales and use tax benefit period." Such period
14 shall consist of one hundred twenty consecutive months beginning on the
15 later of (A) March first, two thousand one, or (B) with regard to busi-
16 ness enterprises certified pursuant to article eighteen-B of the general
17 municipal law prior to April first, two thousand nine, the first day of
18 the month next following the date of issuance of a qualified empire zone
19 enterprise certification by the commissioner under subdivision (h) of
20 this section, or (C) with regard to business enterprises certified
21 pursuant to such article eighteen-B on or after April first, two thou-
22 sand nine, the first day of the month next following the date of certif-
23 ication under article eighteen-B as an empire zone business. Provided
24 however, such period shall not include any month falling within a taxa-
25 ble year immediately preceded by a taxable year with respect to which
26 the business enterprise did not meet the employment test.
27 § 35. Subdivision (h) of section 14 of the tax law is REPEALED.
28 § 36. Paragraph 1 of subdivision (a) of section 1210 of the tax law,
29 as amended by section 4 of part SS1 of chapter 57 of the laws of 2008,
30 is amended to read as follows:
31 (i) Either, all of the taxes described in article twenty-eight of this
32 chapter, at the same uniform rate, as to which taxes all provisions of
33 the local laws, ordinances or resolutions imposing such taxes shall be
34 identical, except as to rate and except as otherwise provided, with the
35 corresponding provisions in such article twenty-eight, including the
36 definition and exemption provisions of such article, so far as the
37 provisions of such article twenty-eight can be made applicable to the
38 taxes imposed by such city or county and with such limitations and
39 special provisions as are set forth in this article. The taxes author-
40 ized under this subdivision may not be imposed by a city or county
41 unless the local law, ordinance or resolution imposes such taxes so as
42 to include all portions and all types of receipts, charges or rents,
43 subject to state tax under sections eleven hundred five and eleven
44 hundred ten of this chapter, except as otherwise provided. (i) Any local
45 law, ordinance or resolution enacted by any city of less than one
46 million or by any county or school district, imposing the taxes author-
47 ized by this subdivision, shall, notwithstanding any provision of law to
48 the contrary, exclude from the operation of such local taxes all sales
49 of tangible personal property for use or consumption directly and
50 predominantly in the production of tangible personal property, gas,
51 electricity, refrigeration or steam, for sale, by manufacturing, proc-
52 essing, generating, assembly, refining, mining or extracting; and all
53 sales of tangible personal property for use or consumption predominantly
54 either in the production of tangible personal property, for sale, by
55 farming or in a commercial horse boarding operation, or in both; and,
56 unless such city, county or school district elects otherwise, shall omit
S. 60--A 65 A. 160--A
1 the provision for credit or refund contained in clause six of subdivi-
2 sion (a) or subdivision (d) of section eleven hundred nineteen of this
3 chapter. (ii) Any local law, ordinance or resolution enacted by any
4 city, county or school district, imposing the taxes authorized by this
5 subdivision, shall omit the residential solar energy systems equipment
6 exemption provided for in subdivision (ee)[,] and the clothing and foot-
7 wear exemption provided for in paragraph thirty of subdivision (a) [and
8 the qualified empire zone enterprise exemptions provided for in subdivi-
9 sion (z)] of section eleven hundred fifteen of this chapter, unless such
10 city, county or school district elects otherwise as to either such resi-
11 dential solar energy systems equipment exemption or such clothing and
12 footwear exemption [or such qualified empire zone enterprise exemptions;
13 provided that if such a city having a population of one million or more
14 in which the taxes imposed by section eleven hundred seven of this chap-
15 ter are in effect enacts the resolution described in subdivision (k) of
16 this section or repeals such resolution or enacts the resolution
17 described in subdivision (l) of this section or repeals such resolution
18 or enacts the resolution described in subdivision (n) of this section or
19 repeals such resolution, such resolution or repeal shall also be deemed
20 to amend any local law, ordinance or resolution enacted by such a city
21 imposing such taxes pursuant to the authority of this subdivision,
22 whether or not such taxes are suspended at the time such city enacts its
23 resolution pursuant to subdivision (k), (l) or (n) of this section or at
24 the time of any such repeal; provided, further, that any such local law,
25 ordinance or resolution and section eleven hundred seven of this chap-
26 ter, as deemed to be amended in the event a city of one million or more
27 enacts a resolution pursuant to the authority of subdivision (k), (l) or
28 (n) of this section, shall be further amended, as provided in section
29 twelve hundred eighteen of this subpart, so that the residential solar
30 energy systems equipment exemption or the clothing and footwear
31 exemption or the qualified empire zone enterprise exemptions in any such
32 local law, ordinance or resolution or in such section eleven hundred
33 seven are the same, as the case may be, as the residential solar energy
34 systems equipment exemption provided for in subdivision (ee), the cloth-
35 ing and footwear exemption in paragraph thirty of subdivision (a) or the
36 qualified empire zone enterprise exemptions in subdivision (z) of
37 section eleven hundred fifteen of this chapter].
38 § 37. Paragraph 4 of subdivision (a) of section 1210 of the tax law,
39 as amended by section 5 of part SS1 of chapter 57 of the laws of 2008,
40 is amended to read as follows:
41 (4) Notwithstanding any other provision of law to the contrary, any
42 local law enacted by any city of one million or more that imposes the
43 taxes authorized by this subdivision (i) may omit the exception provided
44 in subparagraph (ii) of paragraph three of subdivision (c) of section
45 eleven hundred five of this chapter for receipts from laundering, dry-
46 cleaning, tailoring, weaving, pressing, shoe repairing and shoe shining;
47 (ii) may impose the tax described in paragraph six of subdivision (c) of
48 section eleven hundred five of this chapter at a rate in addition to the
49 rate prescribed by this section not to exceed two percent in multiples
50 of one-half of one percent; (iii) shall provide that the tax described
51 in paragraph six of subdivision (c) of section eleven hundred five of
52 this chapter does not apply to facilities owned and operated by the city
53 or an agency or instrumentality of the city or a public corporation the
54 majority of whose members are appointed by the chief executive officer
55 of the city or the legislative body of the city or both of them; (iv)
56 shall not include any tax on receipts from, or the use of, the services
S. 60--A 66 A. 160--A
1 described in paragraph seven of subdivision (c) of section eleven
2 hundred five of this chapter; (v) shall provide that, for purposes of
3 the tax described in subdivision (e) of section eleven hundred five of
4 this chapter, "permanent resident" means any occupant of any room or
5 rooms in a hotel for at least one hundred eighty consecutive days with
6 regard to the period of such occupancy; (vi) may omit the exception
7 provided in paragraph one of subdivision (f) of section eleven hundred
8 five of this chapter for charges to a patron for admission to, or use
9 of, facilities for sporting activities in which the patron is to be a
10 participant, such as bowling alleys and swimming pools; (vii) shall not
11 provide the clothing and footwear exemption in paragraph thirty of
12 subdivision (a) of section eleven hundred fifteen of this chapter but
13 must exempt clothing and footwear and any item used or consumed to make
14 or repair exempt clothing and which becomes a physical component part of
15 that exempt clothing; (viii) shall omit the exemption provided in para-
16 graph forty-one of subdivision (a) of section eleven hundred fifteen of
17 this chapter; (ix) shall omit the exemption provided in subdivision (c)
18 of section eleven hundred fifteen of this chapter insofar as it applies
19 to fuel, gas, electricity, refrigeration and steam, and gas, electric,
20 refrigeration and steam service of whatever nature for use or consump-
21 tion directly and exclusively in the production of gas, electricity,
22 refrigeration or steam; and (x) shall omit, unless such city elects
23 otherwise, the provision for refund or credit contained in clause six of
24 subdivision (a) or in subdivision (d) of section eleven hundred nineteen
25 of this chapter.
26 § 38. Paragraph 1 of subdivision (b) of section 1210 of the tax law,
27 as separately amended by section 36 of part Y and section 11 of part GG
28 of chapter 63 of the laws of 2000, is amended to read as follows:
29 (1) Or, one or more of the taxes described in subdivisions (b), (d),
30 (e) and (f) of section eleven hundred five of this chapter, at the same
31 uniform rate, including the transitional provisions in section eleven
32 hundred six of this chapter covering such taxes, but not the taxes
33 described in subdivisions (a) and (c) of section eleven hundred five of
34 this chapter. Provided, further, that where the tax described in subdi-
35 vision (b) of section eleven hundred five of this chapter is imposed,
36 the compensating use taxes described in clauses (E), (G) and (H) of
37 subdivision (a) of section eleven hundred ten of this chapter shall also
38 be imposed. Provided, further, that where the taxes described in subdi-
39 vision (b) of section eleven hundred five are imposed, such taxes shall
40 omit the [exemptions provided for in subdivision (z) of section eleven
41 hundred fifteen] provision for refund or credit contained in subdivision
42 (d) of section eleven hundred nineteen of this chapter with respect to
43 such taxes described in such subdivision (b) of section eleven hundred
44 five unless such city or county elects to provide such [exemptions]
45 provision or, if so elected, to repeal such [exemptions] provision.
46 § 39. Subdivision (d) of section 1210 of the tax law, as amended by
47 section 12 of part GG of chapter 63 of the laws of 2000, is amended to
48 read as follows:
49 (d) A local law, ordinance or resolution imposing any tax pursuant to
50 this section, increasing or decreasing the rate of such tax, repealing
51 or suspending such tax, exempting from such tax the energy sources and
52 services described in paragraph three of subdivision (a) or of subdivi-
53 sion (b) of this section or changing the rate of tax imposed on such
54 energy sources and services or providing for the credit or refund
55 described in clause six of subdivision (a) of section eleven hundred
56 nineteen of this chapter must go into effect only on one of the follow-
S. 60--A 67 A. 160--A
1 ing dates: March first, June first, September first or December first;
2 provided, that a local law, ordinance or resolution providing for the
3 exemption described in paragraph thirty of subdivision (a) [or providing
4 for the exemptions described in subdivision (z)] of section eleven
5 hundred fifteen of this chapter or repealing any such exemption [so
6 provided and a resolution enacted pursuant to the authority of subdivi-
7 sion (k) of this section providing such exemption or subdivision (l) of
8 this section providing such exemptions or repealing such exemption or
9 exemptions so provided] or a local law, ordinance or resolution provid-
10 ing for a refund or credit described in subdivision (d) of section elev-
11 en hundred nineteen of this chapter or repealing such provision so
12 provided must go into effect only on March first. No such local law,
13 ordinance or resolution shall be effective unless a certified copy of
14 such law, ordinance or resolution is mailed by registered or certified
15 mail to the commissioner at the commissioner's office in Albany at least
16 ninety days prior to the date it is to become effective. However, the
17 commissioner may waive and reduce such ninety-day minimum notice
18 requirement to a mailing of such certified copy by registered or certi-
19 fied mail within a period of not less than thirty days prior to such
20 effective date if the commissioner deems such action to be consistent
21 with the commissioner's duties under section twelve hundred fifty of
22 this article and the commissioner acts by resolution. Where the
23 restriction provided for in section twelve hundred twenty-three of this
24 article as to the effective date of a tax and the notice requirement
25 provided for therein are applicable and have not been waived, the
26 restriction and notice requirement in section twelve hundred twenty-
27 three of this article shall also apply.
28 § 40. Subdivision (1) of section 1210 of the tax law is REPEALED.
29 § 41. Subdivision (d) of section 1211 of the tax law, as amended by
30 chapter 577 of the laws of 1997, is amended to read as follows:
31 (d) A local law or resolution imposing any tax pursuant to this
32 section, increasing or decreasing the rate of such tax, repealing or
33 suspending such tax or providing for the credit or refund described in
34 clause six of subdivision (a) of section eleven hundred nineteen of this
35 chapter must go into effect only on one of the following dates: March
36 first, June first, September first or December first, subject to further
37 requirement as to effective date provided for in subdivision (b) of this
38 section; provided, that a local law or resolution providing for a refund
39 or credit described in subdivision (d) of section eleven hundred nine-
40 teen of this chapter or repealing such provision so provided must go
41 into effect only on March first, subject to further requirement as to
42 effective date provided for in subdivision (b) of this section. No such
43 local law or resolution shall be effective unless a certified copy of
44 such local law or resolution is mailed by registered or certified mail
45 to the commissioner at the commissioner's office in Albany at least
46 ninety days prior to the date it is to become effective. However, the
47 commissioner may waive and reduce such ninety-day minimum notice
48 requirement to a mailing of such certified copy by registered or certi-
49 fied mail within a period of not less than thirty days prior to such
50 effective date if the commissioner deems such action to be consistent
51 with the commissioner's duties under section twelve hundred fifty of
52 this article and the commissioner acts by resolution. Where the
53 restriction provided for in section twelve hundred twenty-three of this
54 article as to the effective date of a tax and the notice requirement
55 provided for therein are applicable and have not been waived, the
S. 60--A 68 A. 160--A
1 restriction and notice requirement in section twelve hundred twenty-
2 three of this article shall also apply.
3 § 42. Subdivisions (a) and (e) of section 1212 of the tax law, as
4 amended by section 14 of part GG and subdivision (a) as separately
5 amended by section 37 of part Y of chapter 63 of the laws of 2000, are
6 amended to read as follows:
7 (a) Any school district which is coterminous with, partly within or
8 wholly within a city having a population of less than one hundred twen-
9 ty-five thousand, is hereby authorized and empowered, by majority vote
10 of the whole number of its school authorities, to impose for school
11 district purposes, within the territorial limits of such school district
12 and without discrimination between residents and nonresidents thereof,
13 the taxes described in subdivision (b) of section eleven hundred five
14 (but excluding the tax on prepaid telephone calling services) and the
15 taxes described in clauses (E) and (H) of subdivision (a) of section
16 eleven hundred ten, including the transitional provisions in subdivision
17 (b) of section eleven hundred six of this chapter, so far as such
18 provisions can be made applicable to the taxes imposed by such school
19 district and with such limitations and special provisions as are set
20 forth in this article, such taxes to be imposed at the rate of one-half,
21 one, one and one-half, two, two and one-half or three percent which rate
22 shall be uniform for all portions and all types of receipts and uses
23 subject to such taxes. In respect to such taxes, all provisions of the
24 resolution imposing them, except as to rate and except as otherwise
25 provided herein, shall be identical with the corresponding provisions in
26 such article twenty-eight of this chapter, including the applicable
27 definition and exemption provisions of such article, so far as the
28 provisions of such article twenty-eight of this chapter can be made
29 applicable to the taxes imposed by such school district and with such
30 limitations and special provisions as are set forth in this article. The
31 taxes described in subdivision (b) of section eleven hundred five (but
32 excluding the tax on prepaid telephone calling service) and clauses (E)
33 and (H) of subdivision (a) of section eleven hundred ten, including the
34 transitional provision in subdivision (b) of such section eleven hundred
35 six of this chapter, may not be imposed by such school district unless
36 the resolution imposes such taxes so as to include all portions and all
37 types of receipts and uses subject to tax under such subdivision (but
38 excluding the tax on prepaid telephone calling service) and clauses.
39 Provided, however, that, where a school district imposes such taxes,
40 such taxes shall omit the [exemptions provided for in subdivision (z) of
41 section eleven hundred fifteen] provision for refund or credit contained
42 in subdivision (d) of section eleven hundred nineteen of this chapter
43 with respect to such taxes described in such subdivision (b) of section
44 eleven hundred five unless such school district elects to provide such
45 [exemptions] provision or, if so elected, to repeal such [exemptions]
46 provision.
47 (e) A resolution imposing a tax pursuant to this section, increasing
48 or decreasing the rate of such tax, or repealing or suspending such tax
49 must go into effect only on one of the following dates: March first,
50 June first, September first or December first; provided, that a resol-
51 ution providing for the [exemptions described in subdivision (z) of
52 section eleven hundred fifteen] refund or credit described in subdivi-
53 sion (d) of section eleven hundred nineteen of this chapter or repealing
54 such [exemptions so provided] provision must go into effect only on
55 March first. No such resolution shall be effective unless a certified
56 copy of such resolution is mailed by registered or certified mail to the
S. 60--A 69 A. 160--A
1 commissioner at the commissioner's office in Albany at least ninety days
2 prior to the date it is to become effective. However, the commissioner
3 may waive and reduce such ninety-day minimum notice requirement to a
4 mailing of such certified copy by registered or certified mail within a
5 period of not less than thirty days prior to such effective date if the
6 commissioner deems such action to be consistent with the commissioner's
7 duties under section twelve hundred fifty of this article and the
8 commissioner acts by resolution.
9 § 43. Notwithstanding any provision of state or local law, ordinance
10 or resolution to the contrary:
11 (a) Every local enactment that elected the qualified empire zone
12 enterprise exemptions described in subdivision (z) of section 1115 of
13 the tax law elected by a county or city pursuant to the authority of
14 article 29 of the tax law that is in effect on the day before this act
15 becomes a law or was elected prior to such date to take effect at a
16 later date is hereby amended to elect the refund or credit described in
17 subdivision (d) of section 1119 of the tax law.
18 (b) A county or city that elected the qualified empire zone enterprise
19 exemptions described in subdivision (z) of section 1115 of the tax law
20 pursuant to the authority of article 29 of the tax law may repeal such
21 exemptions in accord with the provisions of subdivisions (d) and (e) of
22 section 1210 of the tax law.
23 § 44. Subdivision (m) of section 14 of the tax law is REPEALED.
24 § 45. The tax law is amended by adding a new section 17 to read as
25 follows:
26 § 17. Empire Zones Tax Benefits Report. (a) The department of taxation
27 and finance must publish an empire zones tax benefits report annually by
28 January thirty-first. The first report must be published by January
29 thirty-first, two thousand thirteen.
30 (b) (1) The empire zones tax benefits report must contain the follow-
31 ing information about the empire zone tax credits claimed under articles
32 nine, nine-A, twenty-two, thirty-two and thirty-three of this chapter
33 during the previous calendar year:
34 (A) the name of each taxpayer claiming a credit; and
35 (B) the amount of each credit earned by each taxpayer.
36 (2) If the taxpayer claims a empire zone tax credit because the
37 taxpayer is a member of a limited liability company, a partner in a
38 partnership or a shareholder in a subchapter S corporation, the name of
39 each limited liability company, partnership or subchapter S corporation
40 earning any of those credits and the amount of credit earned by each
41 entity must be included in the report instead of information about the
42 taxpayer claiming the credit.
43 (c) The empire zones tax benefits report must also contain the follow-
44 ing information about the sales and use tax refunds and credits claimed
45 under subdivision (d) of section eleven hundred nineteen of this chapter
46 during the previous calendar year:
47 (A) the name of each taxpayer claiming a credit or refund; and
48 (B) the total amount of credits or refunds allowed to each taxpayer.
49 (d) The information included in the empire zones tax benefits report
50 will be based on the information filed with the department during the
51 previous calendar year, to the extent that it is practicable to use that
52 information.
53 § 46. This act shall take effect immediately, provided, however, that:
54 (a) sections fourteen through twenty-five of this act shall apply to
55 taxable years beginning on and after April 1, 2009;
S. 60--A 70 A. 160--A
1 (b) sections thirty-two and thirty-three and sections thirty-six
2 through forty-three of this act shall take effect on the first day of
3 the sales tax quarter next commencing at least 60 days after this act
4 becomes a law; and provided further that any refund or credit allowed
5 pursuant to the amendments made by section thirty-three of this act may
6 not be paid for that quarter for at least two hundred seventy days after
7 this act becomes a law;
8 (c) section thirty-five of this act shall take effect April 1, 2009;
9 and
10 (d) the amendments to subdivision (u) of section 957 of the general
11 municipal law made by section one of this act shall not affect the
12 repeal of such subdivision and shall be deemed repealed therewith.
13 PART L
14 Section 1. Subdivision 4 of section 22 of the public housing law, as
15 amended by section 1 of part XX-1 of chapter 57 of the laws of 2008, is
16 amended to read as follows:
17 4. Statewide limitation. The aggregate dollar amount of credit which
18 the commissioner may allocate to eligible low-income buildings under
19 this article shall be [twenty] twenty-four million dollars. The limita-
20 tion provided by this subdivision applies only to allocation of the
21 aggregate dollar amount of credit by the commissioner, and does not
22 apply to allowance to a taxpayer of the credit with respect to an eligi-
23 ble low-income building for each year of the credit period.
24 § 2. Paragraph (7) of subdivision (b) of section 18 of the tax law, as
25 added by chapter 63 of the laws of 2000, is amended to read as follows:
26 (7) [Bond in lieu of recapture. In the case of a disposition of a
27 building or an interest therein, the taxpayer shall be discharged from
28 liability for any recapture under this subdivision by reason of such
29 disposition if the taxpayer furnishes to the commissioner a bond or
30 other security acceptable to the commissioner in an amount satisfactory
31 to the commissioner and for the period required by the commissioner,
32 and] (A) The credit recapture required under this subdivision will not
33 apply solely by reason of the disposition of a building or an interest
34 therein if it is reasonably expected that such building will continue to
35 be operated as an eligible low-income building for the remaining compli-
36 ance period with respect to such building.
37 (B) Statute of limitations. If a building (or an interest therein) is
38 disposed of during any taxable year and there is any reduction in the
39 qualified basis of such building which results in an increase in tax
40 under this section for such taxable or any subsequent taxable year, then
41 (i) the statutory period for the assessment of any deficiency with
42 respect to such increase in tax will not expire before the expiration of
43 three years from the date the commissioner of housing and community
44 renewal is notified by the taxpayer (in such manner as the commissioner
45 of housing and community renewal may prescribe) of such reduction in
46 qualified basis, and
47 (ii) such deficiency may be assessed before the expiration of such
48 3-year period notwithstanding the provisions of any other law or rule of
49 law which would otherwise prevent such assessment.
50 § 3. This act shall take effect immediately.
51 PART M
S. 60--A 71 A. 160--A
1 Section 1. Subsection (f) of section 615 of the tax law, as added by
2 chapter 28 of the laws of 1987, is amended to read as follows:
3 (f) The New York itemized deduction otherwise allowable under this
4 section shall be reduced by the sum of the amounts determined under
5 paragraphs one [and], two and three of this subsection.
6 (1) An amount equal to the New York itemized deduction otherwise
7 allowable under subsection (a) of this section, multiplied by a percent-
8 age, such percentage to be determined by multiplying, for taxable years
9 beginning in nineteen hundred eighty-eight, ten percent, and for taxable
10 years beginning after nineteen hundred eighty-eight, twenty-five
11 percent, by a fraction,
12 (A) in the case of an unmarried individual or married individual
13 filing a separate return, the numerator of which is the lesser of fifty
14 thousand dollars or the excess of such individual's New York adjusted
15 gross income over one hundred thousand dollars and the denominator of
16 which is fifty thousand dollars;
17 (B) in the case of a married individual filing a joint return or a
18 surviving spouse, the numerator of which is the lesser of fifty thousand
19 dollars or the excess of such individual's New York adjusted gross
20 income over two hundred thousand dollars and the denominator of which is
21 fifty thousand dollars;
22 (C) in the case of a head of household, the numerator of which is the
23 lesser of fifty thousand dollars or the excess of such individual's New
24 York adjusted gross income over one hundred fifty thousand dollars and
25 the denominator of which is fifty thousand dollars.
26 (2) An amount equal to the New York itemized deduction of an individ-
27 ual otherwise allowable under subsection (a) of this section, multiplied
28 by a percentage, such percentage to be determined by multiplying, for
29 taxable years beginning in nineteen hundred eighty-eight, ten percent,
30 and for taxable years beginning after nineteen hundred eighty-eight,
31 twenty-five percent, by a fraction, the numerator of which is the lesser
32 of fifty thousand dollars or the excess of such individual's New York
33 adjusted gross income over four hundred seventy-five thousand dollars
34 and the denominator of which is fifty thousand dollars.
35 (3) With respect to an individual whose New York adjusted gross income
36 is over one million dollars, an amount equal to the New York itemized
37 deduction of an individual otherwise allowable under subsection (a) of
38 this section, except the portion of the deduction attributable to any
39 charitable contribution allowed under section one hundred seventy of the
40 internal revenue code, multiplied by fifty percent, for taxable years
41 beginning after two thousand eight.
42 § 2. Clause (ii) of subparagraph (B) of paragraph 3 of subsection (c)
43 of section 685 of the tax law, as amended by section 2 of part Y3 of
44 chapter 62 of the laws of 2003, is amended to read as follows:
45 (ii) one hundred percent of the tax shown on the return of the indi-
46 vidual for the preceding taxable year. Provided, however, the tax shown
47 on such return for taxable years beginning in two thousand two shall be
48 the tax calculated as if such years began in two thousand three.
49 Provided further, however, that the tax shown on such return for taxable
50 years beginning in two thousand eight shall be calculated as if para-
51 graph three of subsection (f) of section six hundred fifteen of this
52 article has been in effect for taxable years beginning in two thousand
53 eight.
54 § 3. Subdivision (f) of section 11-1715 of the administrative code of
55 the city of New York, as added by chapter 333 of the laws of 1987, is
56 amended to read as follows:
S. 60--A 72 A. 160--A
1 (f) The city itemized deduction otherwise allowable under this section
2 shall be reduced by the sum of the amounts determined under paragraphs
3 one [and], two and three of this subdivision.
4 (1) An amount equal to the city itemized deduction otherwise allowable
5 under subdivision (a) of this section, multiplied by a percentage, such
6 percentage to be determined by multiplying, for taxable years beginning
7 in nineteen hundred eighty-eight, ten percent, and for taxable years
8 beginning after nineteen hundred eighty-eight, twenty-five percent, by a
9 fraction,
10 (A) in the case of an unmarried individual or married individual
11 filing a separate return, the numerator of which is the lesser of fifty
12 thousand dollars or the excess of such individual's city adjusted gross
13 income over one hundred thousand dollars and the denominator of which is
14 fifty thousand dollars;
15 (B) in the case of a married individual filing a joint return or a
16 surviving spouse, the numerator of which is the lesser of fifty thousand
17 dollars or the excess of such individual's city adjusted gross income
18 over two hundred thousand dollars and the denominator of which is fifty
19 thousand dollars;
20 (C) in the case of a head of household, the numerator of which is the
21 lesser of fifty thousand dollars or the excess of such individual's city
22 adjusted gross income over one hundred fifty thousand dollars and the
23 denominator of which is fifty thousand dollars.
24 (2) An amount equal to the city itemized deduction of an individual
25 otherwise allowable under subdivision (a) of this section, multiplied by
26 a percentage, such percentage to be determined by multiplying, for taxa-
27 ble years beginning in nineteen hundred eighty-eight, ten percent, and
28 for taxable years beginning after nineteen hundred eighty-eight, twen-
29 ty-five percent, by a fraction, the numerator of which is the lesser of
30 fifty thousand dollars or the excess of such individual's city adjusted
31 gross income over four hundred seventy-five thousand dollars and the
32 denominator of which is fifty thousand dollars.
33 (3) With respect to an individual whose city adjusted gross income is
34 over one million dollars, an amount equal to the city itemized deduction
35 of an individual otherwise allowable under subdivision (a) of this
36 section, except the portion of the deduction attributable to any chari-
37 table contribution allowed under section one hundred seventy of the
38 internal revenue code, multiplied by fifty percent, for taxable years
39 beginning after two thousand eight.
40 § 4. Clause (ii) of subparagraph (B) of paragraph 3 of subdivision (c)
41 of section 11-1785 of the administrative code of the city of New York,
42 as amended by chapter 55 of the laws of 1992, is amended to read as
43 follows:
44 (ii) one hundred percent of the tax shown on the return of the indi-
45 vidual for the preceding taxable year. Provided, however, that the tax
46 shown on such return for taxable years beginning in two thousand eight
47 shall be calculated as if paragraph three of subdivision (f) of section
48 11-1715 of this chapter was in effect for taxable years beginning in two
49 thousand eight.
50 § 5. Notwithstanding the provisions of subsection (c) of section 685
51 of the tax law or subdivision (c) of section 11-1785 of the administra-
52 tive code of the city of New York, no addition to tax as a result of an
53 underpayment of estimated tax that is attributable to the amendments
54 made by sections one, two and three of this act shall be imposed with
55 respect to any installment the due date for the payment of which is
56 prior to 45 days after the date this act shall have become a law.
S. 60--A 73 A. 160--A
1 § 6. Notwithstanding any provision of law to the contrary, the commis-
2 sioner of taxation and finance is authorized to prescribe by regulations
3 the method of determining the amount to be deducted and withheld from
4 wages on account of taxes imposed by or pursuant to the authority of
5 article 22 of the tax law in taxable years beginning in 2009 in
6 connection with the implementation of section one of this act. The
7 commissioner of taxation and finance may adjust the withholding tables
8 in regard to taxable years beginning in 2009 to account for the
9 provisions of this act. In prescribing any such regulations, the commis-
10 sioner of taxation and finance may adopt rules on an emergency basis
11 notwithstanding anything to the contrary in section 202 of the state
12 administrative procedure act. In carrying out his duties and responsi-
13 bilities under this section, the commissioner of taxation and finance
14 may accompany any such rule making procedure with a similar procedure
15 with respect to the taxes required to be deducted and withheld by local
16 laws imposing taxes pursuant to the authority of articles 30, 30-A and
17 30-B of the tax law that take effect and become applicable in taxable
18 years beginning in 2009, the provisions of any other law in relation to
19 such a procedure to the contrary notwithstanding.
20 § 7. This act shall take effect immediately.
21 PART N
22 Section 1. Subparagraph (B) of paragraph 1 of subsection (b) of
23 section 631 of the tax law, as amended by chapter 28 of the laws of
24 1987, is amended to read as follows:
25 (B) a business, trade, profession or occupation carried on in this
26 state, including investment management services performed in exchange
27 for consideration to a partnership or other entity as defined in
28 subsection (h) of this section; or
29 § 2. Section 631 of the tax law is amended by adding a new subsection
30 (h) to read as follows:
31 (h) Special rules for partners providing investment management
32 services. (1) For purposes of this section, the term "investment manage-
33 ment services to a partnership or other entity" means providing a
34 substantial quantity of any of the following services to the partnership
35 or other entity:
36 (i) Advising the partnership as to the value of any specified asset,
37 or
38 (ii) Advising the partnership as to the advisability of investing in,
39 purchasing, or selling any specified asset, or
40 (iii) Managing, acquiring, or disposing of any specified asset, or
41 (iv) Arranging financing with respect to acquiring specified assets,
42 or
43 (v) Any activity in support of any service described in subparagraphs
44 (i) through (iv) of this paragraph.
45 (2) For purposes of this subsection, the term "specified asset" means
46 securities (as defined in section four hundred seventy-five (c)(2) of
47 the internal revenue code without regard to the last sentence thereof),
48 real estate, commodities (as defined in section four hundred seventy-
49 five (e)(2) of the internal revenue code), or options or derivative
50 contracts with respect to securities (as so defined), real estate, or
51 commodities (as so defined).
52 (3) For purposes of this subsection, subsection (d) of this section
53 shall not apply.
S. 60--A 74 A. 160--A
1 § 3. Subsection (d) of section 631 of the tax law is amended to read
2 as follows:
3 (d) Purchase and sale for own account.-- A nonresident, other than a
4 dealer holding property primarily for sale to customers in the ordinary
5 course of his trade or business, shall not be deemed to carry on a busi-
6 ness, trade, profession or occupation in this state solely by reason of
7 the purchase and sale of property or the purchase, sale or writing of
8 stock option contracts, or both, for his own account except when
9 subsection (h) of this section applies.
10 § 4. Subdivision (a) of section 632 of the tax law is amended by
11 adding new paragraph (3) to read as follows:
12 (3) In determining the New York source income of a nonresident share-
13 holder of an S corporation where the election provided for in subsection
14 (a) of section six hundred sixty is in effect and the S corporation is a
15 partner of a partnership to which section 631(h) applies, there shall be
16 included the income and losses from intangible personal property,
17 including annuities, dividends, interest and gains from the disposition
18 of intangible personal property attributable to the partnership of which
19 section 631(h) applies. Those items of income and loss and deduction
20 shall be allocable by the nonresident shareholders by the S corpo-
21 ration's business allocation percentage, determined under the regu-
22 lations of the commissioner consistent with the applicable methods and
23 rules for allocation under Article 9-A.
24 § 5. This act shall take effect immediately and apply to taxable years
25 beginning on or after January 1, 2009.
26 PART O
27 Section 1. The tax law is amended by adding a new section 30 to read
28 as follows:
29 § 30. Research expenditures credit. (a) General. (1) A taxpayer
30 subject to tax under article nine-A, twenty-two, thirty-two or thirty-
31 three of this chapter shall be allowed a credit against such tax, pursu-
32 ant to the provisions referenced in subdivision (e) of this section. The
33 credit is equal to ten percent of the excess of the taxpayer's New York
34 research expenditures incurred during the taxable year over the average
35 amount of the taxpayer's New York research expenditures incurred during
36 the two immediately preceding taxable years. If the taxpayer does not
37 have two immediately preceding taxable years, then the credit is equal
38 to ten percent of the excess of the taxpayer's New York research expend-
39 itures incurred during the taxable year over the taxpayer's New York
40 research expenditures incurred during the immediately preceding taxable
41 year. The taxpayer is not allowed to claim this credit during its first
42 taxable year in New York. If the taxpayer is a partner in a partnership
43 that is incurring research expenditures, the amount of credit the
44 taxpayer will be allowed to claim is equal to the taxpayer's pro rata
45 share of the credit that the partnership would have been allowed to
46 claim if it were a taxpayer. Any taxpayer that has research expendi-
47 tures that may be used in calculating both the credit described in this
48 section and the credit for "qualified emerging technology company facil-
49 ities, operations and training" allowed under either subsection (nn) of
50 section six hundred six of this chapter or subdivision 12-G of section
51 two hundred ten of this chapter, may use those expenditures to calculate
52 either the credit described in this section or the credit allowed under
53 such subsection (nn) or such subdivision (12-G), but not both.
54 (2) New York research expenditures equal the sum of:
S. 60--A 75 A. 160--A
1 (A) the qualified research expenses that would qualify for the credit
2 allowed under section 41 of the internal revenue code for research
3 activities conducted in this state, and
4 (B) the grants made for qualified research by the taxpayer to a quali-
5 fied research consortium, an educational institution, and an organiza-
6 tion which is a state or federal laboratory for research activities to
7 be conducted by that organization in this state.
8 (b) Meaning of terms. The terms "qualified research expenses", "quali-
9 fied research", "qualified research consortium", and "educational insti-
10 tution" shall have the same meanings as when used in section 41 of the
11 internal revenue code, as such section of such code applied on December
12 thirty-first, two thousand eight.
13 (c) Research expenditures credit certificates. To be eligible for the
14 credit allowed by this section, a taxpayer shall obtain a research
15 expenditures credit certificate from the urban development corporation.
16 A taxpayer shall apply to the urban development corporation by January
17 thirty-first of each year with respect to New York research expenditures
18 incurred during the immediately preceding taxable year that ended on or
19 before December thirty-first of the preceding year. The urban develop-
20 ment corporation shall issue research expenditures credit certificates
21 by March thirty-first of each year, pursuant to procedures specified in
22 rules and regulations promulgated by such corporation. Each research
23 expenditures credit certificate shall specify the maximum amount of
24 credit that the taxpayer is allowed to claim for the taxable year to
25 which the credit certificate relates. For the state fiscal year commenc-
26 ing April first, two thousand nine, the urban development corporation
27 shall not issue, in the aggregate, more than twenty million dollars of
28 research expenditures credit certificates. For the state fiscal year
29 commencing April first, two thousand ten, the aggregate amount of such
30 certificates shall not be more than thirty-three million dollars. For
31 the state fiscal year commencing April first, two thousand eleven and
32 for each fiscal year thereafter, the aggregate of such certificates
33 shall not be more than forty-five million dollars.
34 (d) Research expenditures credit report. (1) The department shall
35 publish a research expenditures credit report annually by January thir-
36 ty-first. The first report shall be published by January thirty-first,
37 two thousand thirteen.
38 (2)(A) The research expenditures credit report shall contain the
39 following information about the credits claimed under this section
40 during the previous calendar year:
41 (i) the name of each taxpayer claiming a research credit; and
42 (ii) the amount of research credit earned by each taxpayer;
43 (B) If the taxpayer claims a credit pursuant to this section because
44 the taxpayer is a member of a limited liability company treated as a
45 partnership for federal tax purposes, a partner in a partnership or a
46 shareholder in a subchapter S corporation, the name of each limited
47 liability company, partnership or subchapter S corporation associated
48 with any of those credits and the amount of credit associated with each
49 entity shall be included in the report instead of information about the
50 taxpayer claiming the credit.
51 (3) The information included in the research expenditures credit
52 report shall be based on the information filed with the department
53 during the previous calendar year, to the extent that it is practicable
54 to use that information.
55 (e) Cross-references. For application of the credit provided for in
56 this section, see the following provisions of this chapter:
S. 60--A 76 A. 160--A
1 (1) article 9-A: section 210: subdivision 41.
2 (2) article 22: section 606: subsection (qq).
3 (3) article 32: section 1456: subsection (u).
4 (4) article 33: section 1511: subdivision (y).
5 § 2. Section 210 of the tax law is amended by adding a new subdivision
6 41 to read as follows:
7 41. Research expenditures credit. (a) Allowance of credit. A taxpayer
8 shall be allowed a credit, to be computed as provided in section thirty
9 of this chapter, against the tax imposed by this article.
10 (b) Application of credit. The credit allowed under this subdivision
11 for any taxable year shall not reduce the tax due for such year to less
12 than the higher of the amounts prescribed in paragraphs (c) and (d) of
13 subdivision one of this section. However, if the amount of credits
14 allowed under this subdivision for any taxable year reduces the tax to
15 such amount, any amount of credit thus not deductible in such taxable
16 year shall be treated as an overpayment of tax to be credited or
17 refunded in accordance with the provisions of section one thousand
18 eighty-six of this chapter. Provided, however, the provisions of
19 subsection (c) of section one thousand eighty-eight of this chapter
20 notwithstanding, no interest shall be paid thereon.
21 § 3. Section 606 of the tax law is amended by adding a new subsection
22 (qq) to read as follows:
23 (qq) Research expenditures credit. (1) Allowance of credit. A taxpay-
24 er shall be allowed a credit, to the extent allowed under section thirty
25 of this chapter, against the tax imposed by this article.
26 (2) Application of credit. If the amount of the credit allowed under
27 this subsection for any taxable year exceeds the taxpayer's tax for such
28 year, the excess shall be treated as an overpayment of tax to be credit-
29 ed or refunded in accordance with the provisions of section six hundred
30 eighty-six of this article, provided, however, that no interest shall be
31 paid thereon.
32 § 4. Subparagraph (B) of paragraph (1) of subsection (i) of section
33 606 of the tax law, as amended by section 2 of part ZZ-1 of chapter 57
34 of the laws of 2008, is amended to read as follows:
35 (B) shall be treated as the owner of a new business with respect to
36 such share if the corporation qualifies as a new business pursuant to
37 paragraph (j) of subdivision twelve of section two hundred ten of this
38 chapter.
39 The corporation's credit base under
40 section two hundred ten or section
41 With respect to the following fourteen hundred fifty-six of this
42 credit under this section: chapter is:
43 Investment tax credit Investment credit base
44 under subsection (a) or qualified
45 rehabilitation
46 expenditures under
47 subdivision twelve of
48 section two hundred ten
49 Empire zone Cost or other basis
50 investment tax credit under subdivision
51 under subsection (j) twelve-B
52 of section two hundred
53 ten
S. 60--A 77 A. 160--A
1 Empire zone Eligible wages under
2 wage tax credit subdivision nineteen of
3 under subsection (k) section two hundred ten
4 or subsection (e) of
5 section fourteen hundred
6 fifty-six
7 Empire zone Qualified investments
8 capital tax credit and contributions under
9 under subsection (l) subdivision twenty of
10 section two hundred ten
11 or subsection (d) of
12 section fourteen hundred
13 fifty-six
14 Agricultural property tax Allowable school
15 credit under subsection (n) district property taxes under
16 subdivision twenty-two of
17 section two hundred ten
18 Credit for employment Qualified first-year wages or
19 of persons with dis- qualified second-year wages
20 abilities under under subdivision
21 subsection (o) twenty-three of section
22 two hundred ten
23 or subsection (f)
24 of section fourteen
25 hundred fifty-six
26 Employment incentive Applicable investment credit
27 credit under subsec- base under subdivision
28 tion (a-1) twelve-D of section two
29 hundred ten
30 Empire zone Applicable investment
31 employment credit under sub-
32 incentive credit under division twelve-C
33 subsection (j-1) of section two hundred ten
34 Alternative fuels credit Cost under subdivision
35 under subsection (p) twenty-four of section two
36 hundred ten
37 Qualified emerging Applicable credit base
38 technology company under subdivision twelve-E
39 employment credit of section two hundred ten
40 under subsection (q)
41 Qualified emerging Qualified investments under
42 technology company subdivision twelve-F of
43 capital tax credit section two hundred ten
44 under subsection (r)
45 Credit for purchase of an Cost of an automated
46 automated external defibrillator external defibrillator under
47 under subsection (s) subdivision twenty-five of
S. 60--A 78 A. 160--A
1 section two hundred ten
2 or subsection (j) of section
3 fourteen hundred fifty-six
4 Low-income housing Credit amount under
5 credit under subsection (x) subdivision thirty
6 of section two hundred ten or
7 subsection (l) of section
8 fourteen hundred fifty-six
9 Credit for transportation Amount of credit under sub-
10 improvement contributions division thirty-two of section
11 under subsection (z) two hundred ten or subsection
12 (n) of section fourteen
13 hundred fifty-six
14 QEZE credit for real property Amount of credit under
15 taxes under subsection (bb) subdivision twenty-seven of
16 section two hundred ten or
17 subsection (o) of section
18 fourteen hundred fifty-six
19 QEZE tax reduction credit Amount of benefit period
20 under subsection (cc) factor, employment increase factor
21 and zone allocation
22 factor (without regard
23 to pro ration) under
24 subdivision twenty-eight of
25 section two hundred ten or
26 subsection (p) of section
27 fourteen hundred fifty-six
28 and amount of tax factor
29 as determined under
30 subdivision (f) of section sixteen
31 Green building credit Amount of green building credit
32 under subsection (y) under subdivision thirty-one
33 of section two hundred ten
34 or subsection (m) of section
35 fourteen hundred fifty-six
36 Credit for long-term Qualified costs under
37 care insurance premiums subdivision twenty-five-a of
38 under subsection (aa) section two hundred ten
39 or subsection (k) of section
40 fourteen hundred fifty-six
41 Brownfield redevelopment Amount of credit
42 credit under subsection under subdivision
43 (dd) thirty-three of section
44 two hundred ten
45 or subsection (q) of
46 section fourteen hundred
47 fifty-six
S. 60--A 79 A. 160--A
1 Remediated brownfield Amount of credit under
2 credit for real property subdivision thirty-four
3 taxes for qualified of section two hundred
4 sites under subsection ten or subsection (r) of
5 (ee) section fourteen hundred
6 fifty-six
7 Environmental Amount of credit under
8 remediation subdivision thirty-five of
9 insurance credit under section two hundred
10 subsection (ff) ten or subsection
11 (s) of section
12 fourteen hundred
13 fifty-six
14 Empire state film production Amount of credit for qualified
15 credit under subsection (gg) production costs in production
16 of a qualified film under
17 subdivision thirty-six of
18 section two hundred ten
19 Qualified emerging Qualifying expenditures and
20 technology company facilities, development activities under
21 operations and training credit subdivision twelve-G of section
22 under subsection (nn) two hundred ten
23 Security training tax Amount of credit
24 credit under under subdivision thirty-seven
25 subsection (ii) of section two hundred ten or
26 under subsection (t) of
27 section fourteen hundred fifty-six
28 Credit for qualified fuel Amount of credit under
29 cell electric generating equipment subdivision thirty-seven
30 expenditures under subsection (g-2) of section two hundred ten
31 or subsection (t) of
32 section fourteen hundred
33 fifty-six
34 Empire state commercial production Amount of credit for qualified
35 credit under subsection (jj) production costs in production
36 of a qualified commercial under
37 subdivision thirty-eight of sec-
38 tion two hundred ten
39 Biofuel production Amount of credit
40 tax credit under under subdivision
41 subsection (jj) thirty-eight of
42 section two hundred ten
43 Clean heating fuel credit Amount of credit under
44 under subsection (mm) subdivision thirty-nine of
45 section two hundred ten
S. 60--A 80 A. 160--A
1 Credit for rehabilitation Amount of credit under
2 of historic properties subdivision forty of
3 under subsection (oo) subsection two hundred ten
4 Credit for companies who Amount of credit under
5 provide transportation subdivision forty of
6 to individuals section two hundred ten
7 with disabilities
8 under subsection (oo)
9 Research expenditures creditAmount of credit under
10 under subsection (qq)subdivision forty-one of
11 section two hundred ten or
12 under subsection (u) of section
13 fourteen hundred fifty-six
14 § 5. Section 1456 of the tax law is amended by adding a new subsection
15 (u) to read as follows:
16 (u) Research expenditures credit. (1) Allowance of credit. A taxpayer
17 shall be allowed a credit, to be computed as provided in section thirty
18 of this chapter, against the tax imposed by this article.
19 (2) Application of credit. The credit allowed under this subsection
20 for any taxable year shall not reduce the tax due for such year to less
21 than the minimum tax fixed by paragraph three of subsection (b) of
22 section fourteen hundred fifty-five of this article. However, if the
23 amount of credits allowed under this subsection for any taxable year
24 reduces the tax to such amount, any amount of credit thus not deductible
25 in such taxable year shall be treated as an overpayment of tax to be
26 credited or refunded in accordance with the provisions of section one
27 thousand eighty-six of this chapter. Provided, however, the provisions
28 of subsection (c) of section one thousand eighty-eight of this chapter
29 notwithstanding, no interest shall be paid thereon.
30 § 6. Section 1511 of the tax law is amended by adding a new subdivi-
31 sion (y) to read as follows:
32 (y) Research expenditures credit. (1) Allowance of credit. A taxpayer
33 shall be allowed a credit, to be computed as provided in section thirty
34 of this chapter, against the taxes imposed by this article.
35 (2) Application of credit. The credit allowed under this subdivision
36 for any taxable year shall not reduce the tax due for such year to less
37 than the minimum tax fixed by this article. However, if the amount of
38 credits allowed under this subdivision for any taxable year reduces the
39 tax to such amount, any amount of credit thus not deductible in such
40 taxable year shall be treated as an overpayment of tax to be credited or
41 refunded in accordance with the provisions of section one thousand
42 eighty-six of this chapter. Provided, however, the provisions of
43 subsection (c) of section one thousand eighty-eight of this chapter
44 notwithstanding, no interest shall be paid thereon.
45 § 7. Subdivision 12-G of section 210 of the tax law is amended by
46 adding a new paragraph (i) to read as follows:
47 (i) Any taxpayer that has research expenditures that may be used in
48 calculating both the credit described in this subdivision and the
49 "research expenditures credit" described in section thirty of this chap-
50 ter, may elect to use those expenditures to calculate either the credit
51 allowed under this subdivision or the credit described in section thirty
52 of this chapter, but not both.
S. 60--A 81 A. 160--A
1 § 8. Subsection (nn) of section 606 of the tax law is amended by
2 adding a new paragraph (9) to read as follows:
3 (9) Any taxpayer that has research expenditures that may be used in
4 calculating both the credit described in this subsection and the
5 "research expenditures credit" described in section thirty of this chap-
6 ter, may use those expenditures to calculate either the credit allowed
7 under this subsection or the credit described in section thirty of this
8 chapter, but not both.
9 § 9. The chairman of the urban development corporation, after consult-
10 ing with the commissioner of taxation and finance and the director of
11 the division of the budget shall promulgate regulations by October 31,
12 2009 to establish procedures for the awarding and allocation of the
13 research expenditures credits allowed under section thirty of the tax
14 law, as added by section one of this act. Such rules and regulations
15 shall include a description of the standards to be used to evaluate the
16 applications, the type of documentation to be provided by taxpayers to
17 substantiate the taxpayer's New York research expenditures, and any
18 other provisions the chairman determines to be necessary. Notwithstand-
19 ing any other provisions to the contrary in the state administrative
20 procedure act, the rules and regulations described in this section shall
21 be adopted on an emergency basis if necessary.
22 § 10. The chairman of the urban development corporation shall publish
23 a report on the research expenditures credit and the research expendi-
24 tures credit certificate issuance process on or before January first of
25 each year. Such report shall include, but not be limited to, the
26 following information:
27 (a) the total number of recipients and the total amount of credits
28 awarded;
29 (b) the name of every recipient of a research credit certificate; and
30 (c) the amount of credit awarded to each recipient of a research cred-
31 it certificate.
32 The report shall be issued no later than 60 days after the conclusion of
33 the research expenditures credit allocation process.
34 § 11. The chairman of the urban development corporation shall not
35 issue research expenditures credit certificates for the credit for
36 increasing research activities allowed under section 30 of the tax law,
37 as added by section one of this act, until the director of the division
38 of the budget, in consultation with the commissioner of taxation and
39 finance, validates that the Empire Zone Program reforms enacted as part
40 of the 2009-2010 Executive Budget have resulted in $100 million in
41 savings for the 2009-10 state fiscal year.
42 § 12. This act shall take effect immediately and shall apply to taxa-
43 ble years beginning on or after January 1, 2009; provided, however that
44 the empire state film production credit under subsection (gg), the
45 empire state commercial production credit under subsection (jj) and the
46 credit for companies who provide transportation to individuals with
47 disabilities under subsection (oo) of section 606 of the tax law
48 contained in section four of this act shall expire on the same date as
49 provided in section 9 of part P of chapter 60 of the laws of 2004, as
50 amended, section 10 of part V of chapter 62 of the laws of 2006, as
51 amended and section 5 of chapter 522 of the laws of 2006, as amended,
52 respectively.
53 PART P
S. 60--A 82 A. 160--A
1 Section 1. Paragraph (b) of subdivision 12-G of section 210 of the tax
2 law, as amended by section 1-a of part A of chapter 63 of the laws of
3 2005, is amended to read as follows:
4 (b) An eligible taxpayer shall (i) have no more than one hundred full-
5 time employees, of which at least seventy-five percent are employed in
6 New York state, except as otherwise provided in this paragraph, (ii)
7 have a ratio of research and development funds to net sales, as referred
8 to in section thirty-one hundred two-e of the public authorities law,
9 which equals or exceeds six percent during its taxable year, and (iii)
10 have gross revenues, along with the gross revenues of its affiliates and
11 related members, not exceeding twenty million dollars for the taxable
12 year immediately preceding the year the taxpayer is allowed a credit
13 under this subdivision. For purposes of this paragraph, the term
14 "related member" shall have the same meaning as set forth in [clauses]
15 clause (A) [and (B)] of subparagraph one of paragraph (o) of subdivision
16 nine of section two hundred eight of this article, and the term "affil-
17 iates" shall mean those corporations that are members of the same affil-
18 iated group (as defined in section fifteen hundred four of the internal
19 revenue code) as the taxpayer. For purposes of subparagraph (i) of this
20 paragraph, employees who are employed outside the United States during
21 the taxable year cannot be considered; a taxpayer that meets the employ-
22 ment requirements in subparagraph (i) of this paragraph in the first
23 year in which the credit allowed by this subdivision is claimed will not
24 be considered ineligible solely as a result of having more than one
25 hundred full-time employees in other taxable years in which the credit
26 is claimed, provided at least seventy-five percent of the full-time
27 employees in the other taxable years are employed in New York state; and
28 an individual who is a partner in a partnership that is a qualified
29 emerging technology company will be considered a full-time employee if
30 the individual partner participates in the partnership on a full-time
31 basis during the taxable year and the involvement of the individual
32 partner in the activities of the partnership during the taxable year
33 satisfies the requirements for material participation for the same taxa-
34 ble year within the meaning of subsection (h) of section 469 of the
35 internal revenue code.
36 § 2. Subparagraphs (i) and (iii) of paragraph 2 of subsection (nn) of
37 section 606 of the tax law, as amended by section 1-a of part A of chap-
38 ter 63 of the laws of 2005, are amended to read as follows:
39 (i) have no more than one hundred full-time employees, of which at
40 least seventy-five percent are employed in New York state, except as
41 otherwise provided in this paragraph,
42 (iii) have gross revenues, along with the gross revenues of its affil-
43 iates and related members, not exceeding twenty million dollars for the
44 taxable year immediately preceding the year the taxpayer is allowed a
45 credit under this subsection. For purposes of this paragraph, the term
46 "related member" shall have the same meaning as set forth in [clauses]
47 clause (A) [and (B)] of subparagraph one of paragraph (o) of subdivision
48 9 of section two hundred eight of this chapter, and the term "affil-
49 iates" shall mean those corporations that are members of the same affil-
50 iated group (as defined in section fifteen hundred four of the internal
51 revenue code) as the taxpayer. For purposes of subparagraph (i) of this
52 paragraph, employees who are employed outside the United States during
53 the taxable year cannot be considered; a taxpayer that meets the employ-
54 ment requirements in subparagraph (i) of this paragraph in the first
55 year in which the credit allowed by this subsection is claimed will not
56 be considered ineligible solely as a result of having more than one
S. 60--A 83 A. 160--A
1 hundred full-time employees in other taxable years in which the credit
2 is claimed, provided at least seventy-five percent of the full-time
3 employees in the other taxable years are employed in New York state; and
4 an individual who is a partner in a partnership that is a qualified
5 emerging technology company will be considered a full-time employee if
6 the individual partner participates in the partnership on a full-time
7 basis during the taxable year and the involvement of the individual
8 partner in the activities of the partnership during the taxable year
9 satisfies the requirements for material participation for the same taxa-
10 ble year within the meaning of subsection (h) of section 469 of the
11 internal revenue code.
12 § 3. This act shall take effect immediately and apply to taxable years
13 beginning on or after January 1, 2010.
14 PART Q
15 Section 1. Subdivision (b) of section 1101 of the tax law is amended
16 by adding a new paragraph 27-a to read as follows:
17 (27-a) (i) "Cable service" means the furnishing to purchasers of
18 programs and other content from one or more television or radio stations
19 or networks or other persons, by means of wire, cable, fiber-optic,
20 laser, microwave, radio wave, satellite, or any other means.
21 (ii) "Direct-to-home satellite service" means only programming trans-
22 mitted or broadcast by satellite directly to the subscribers' premises
23 without the use of ground receiving or distribution equipment, except at
24 the subscribers' premises or in the uplink process to the satellite.
25 § 2. Subdivision (c) of section 1105 of the tax law is amended by
26 adding a new paragraph 12 to read as follows:
27 (12) (A) Cable service, including any tangible personal property and
28 any service or other content provided with the cable service, whether or
29 not for a separate charge, but not including direct-to-home satellite
30 service, internet access service as defined in note section 1101 of
31 section 151 of title 47 of the United States code, or telephony or
32 telegraphy or telephone or telegraph service of whatever nature.
33 (B) Notwithstanding any other provision of law to the contrary, if
34 cable service is received in a motor vehicle or vessel, the service is
35 sourced to the purchaser's "place of primary use," as that term is
36 defined in paragraph twenty-six of subdivision (b) of section eleven
37 hundred one of this article, except that: (i) the term "mobile telecom-
38 munications customer" means "purchaser"; and (ii) subparagraph (ii) of
39 such paragraph does not apply.
40 § 3. The tax law is amended by adding a new section 1105-E to read as
41 follows:
42 § 1105-E. State tax on direct-to-home satellite service. (a) A tax is
43 hereby imposed and must be paid on direct-to-home satellite service, at
44 a rate equal to the sum of: (1) the state rate in the opening paragraph
45 of section eleven hundred five of this part; (2) the rate in subdivision
46 (a) of section eleven hundred nine of this part if the service is deliv-
47 ered within the metropolitan commuter transportation district estab-
48 lished pursuant to section twelve hundred sixty-two of the public
49 authorities law; and (3) the sum of the local rates of tax described in
50 subdivision (a) of section twelve hundred ten or section twelve hundred
51 eleven of this chapter imposed pursuant to the authority of subpart B of
52 part I of article twenty-nine of this chapter in the place where the
53 service is delivered.
S. 60--A 84 A. 160--A
1 (b) Deposit and distribution of revenue. After subtracting the amount
2 disposed of pursuant to subdivision (h) of section twelve hundred
3 sixty-one of this chapter and the amount disposed of under subdivision
4 (i) of section eleven hundred nine of this part, any remaining taxes,
5 interest and penalties collected or received by the commissioner from
6 the tax imposed by this section will be disposed of in accordance with
7 section one hundred seventy-one-a of this chapter as provided in section
8 eleven hundred forty-eight of this article.
9 (c) Except as otherwise provided in this section, the taxes imposed by
10 this section will be identical to, and administered and collected in a
11 like manner as, the taxes imposed by section eleven hundred five of this
12 article. All the provisions of this article, including the definition
13 and exemption provisions and the provisions relating or applicable to
14 the administration, collection and disposition of the taxes imposed by
15 that section will apply to the tax imposed by this section so far as
16 those provisions can be made applicable to the tax imposed by this
17 section, with such modifications as may be necessary in order to adapt
18 the language of those provisions to the tax imposed by this section.
19 Those provisions will apply with the same force and effect as if the
20 language of those provisions had been set forth in full in this section,
21 except to the extent that any of those provisions is either inconsistent
22 with a provision of this section or is not relevant to the tax imposed
23 by this section. For purposes of this section, any reference in this
24 chapter to a tax or the taxes imposed by section eleven hundred five of
25 this article will be deemed also to refer to the tax imposed by this
26 section unless a different meaning is clearly required.
27 (d) Separate statement of tax. Every person required to collect the
28 tax imposed by this section shall state, charge, and show that tax sepa-
29 rately from the price or charge, and also separately from any other tax
30 imposed by this article or other law on any sales slip, invoice, receipt
31 or other statement or memorandum of the price or charge, paid or paya-
32 ble, given to the customer.
33 (e) Taxes to be in addition to any other. The taxes imposed by this
34 section shall be in addition to any other tax imposed or authorized to
35 be imposed by this chapter or other law.
36 (f) Taxes not to apply to other impositions. The taxes imposed by this
37 section shall not apply to the taxes imposed by section eleven hundred
38 seven, eleven hundred eight, or eleven hundred nine of this article or
39 to taxes authorized to be imposed by article twenty-nine of this chap-
40 ter.
41 § 4. Section 1109 of the tax law is amended by adding a new subdivi-
42 sion (i) to read as follows:
43 (i) Notwithstanding any other provision of law to the contrary, the
44 portion of the taxes, interest and penalties collected or received by
45 the commissioner from the tax imposed by section eleven hundred five-E
46 of this part in the area of the state within the metropolitan commuter
47 transportation district based on the rate of tax in effect in subdivi-
48 sion (a) of this section, will be disposed of in accordance with the
49 provisions of subdivision (d) of this section.
50 § 5. Clause (ii) of paragraph 1 of subdivision (b) of section 1116 of
51 the tax law, as amended by section 1 of part KK-1 of chapter 57 of the
52 laws of 2008, is amended to read as follows:
53 (ii) sales, other than for resale, of services described in subdivi-
54 sion (b) or paragraph five or twelve of subdivision (c) of section elev-
55 en hundred five of this article or in section eleven hundred five-E of
56 this article by that organization, whether or not at a shop or store;
S. 60--A 85 A. 160--A
1 § 6. Section 1148 of the tax law, as amended by chapter 3 of the laws
2 of 2004, is amended to read as follows:
3 § 1148. Deposit and disposition of revenue. All taxes, interest and
4 penalties collected or received by the commissioner under this article
5 shall be deposited and disposed of pursuant to the provisions of section
6 one hundred seventy-one-a of this chapter; provided however, the comp-
7 troller shall on or before the twelfth day of each month, pay all such
8 taxes, interest and penalties collected under this article and remaining
9 to the comptroller's credit in such banks, banking houses or trust
10 companies at the close of business on the last day of the preceding
11 month, into the general fund of the state treasury, except as otherwise
12 provided in sections ninety-two-d and ninety-two-r of the state finance
13 law [and], sections eleven hundred two, eleven hundred four and eleven
14 hundred nine of this article, and subdivision (b) of section eleven
15 hundred five-E of this article.
16 § 7. Section 1261 of the tax law is amended by adding a new subdivi-
17 sion (h) to read as follows:
18 (h) Notwithstanding any provision of law to the contrary, a portion of
19 the taxes, interest and penalties collected or received by the commis-
20 sioner from the tax imposed by section eleven hundred five-E of this
21 chapter will be allocated to each locality that imposes the taxes
22 described in subdivision (a) of section twelve hundred ten or section
23 twelve hundred eleven of this article based on the sum of the local
24 rates of tax in effect in that locality imposed pursuant to the authori-
25 ty of subpart B of part I of this article. The amount to be allocated to
26 each locality will be certified by the commissioner in accordance with
27 subdivision (a) of this section and, after reserving an amount for
28 refunds and the reasonable costs of the commissioner in accordance with
29 subdivision (b) of this section, the remainder will be net collections
30 and will be distributed to each locality in accordance with the
31 provisions of this part applicable to the respective locality.
32 § 8. In accordance with section 1105-E of the tax law, as added by
33 section three of this act, the legislature intends that the tax on
34 direct-to-home satellite service be imposed at the same total rate as
35 similar services are taxed under article 28 and pursuant to the authori-
36 ty of article 29 of the tax law, and that, consistent with the
37 provisions of section 152 of title 47 of the United States code, the
38 state revenues derived from the tax on direct-to-home satellite service
39 be shared with each locality that imposes the taxes described in subdi-
40 vision (a) of section 1210 or 1211 of the tax law as provided in this
41 act. However, the legislature further intends that, if the state rate
42 set forth in such section 1105-E is invalidated or reduced by a court of
43 final, competent jurisdiction, revenues from the sales tax imposed on
44 direct-to-home satellite service must be preserved by imposing a uniform
45 state rate of sales tax on that service. Therefore, if a court of final,
46 competent jurisdiction adjudges the state sales tax rate set forth in
47 such section 1105-E to be invalid, the state rate imposed on direct-to-
48 home satellite service will be eight and three-quarters percent and that
49 rate will apply statewide. The taxes, interest and penalties collected
50 or received by the commissioner of taxation and finance from such state-
51 wide rate, after reserving an amount for refunds and the reasonable
52 costs of the commissioner will be allocated based on the respective
53 rates among the state and any county and city imposing general sales
54 taxes pursuant to the authority of subdivision (a) of section 1210 of
55 the tax law and any school district in which the taxes authorized by
56 section 1211 of the tax law are in effect, and if the taxes imposed by
S. 60--A 86 A. 160--A
1 section 1109 of the tax law are in effect where the service is deliv-
2 ered, will be deposited with the mass transit operating assistance fund
3 as provided in such section 1109. Moreover, the state rate provided for
4 in this section will, in that event, take effect on the first day of the
5 first month following the date the judgment of the court becomes final
6 and will apply to sales occurring and services rendered on or after that
7 date, in accordance with the applicable transitional provisions in
8 section 1106 of the tax law.
9 § 9. This act shall take effect on June 1, 2009, and shall apply to
10 sales occurring and services rendered on or after that date in accord-
11 ance with the applicable transitional provisions in sections 1106 and
12 1217 of the tax law.
13 PART R
14 Section 1. Subdivisions 1 and 19 of section 470 of the tax law, as
15 amended by section 1 of part MM1 of chapter 57 of the laws of 2008, are
16 amended to read as follows:
17 1. "Cigarette." (a) Any roll for smoking made wholly or in part of
18 tobacco or of any other substance wrapped in paper or in any other
19 substance not containing tobacco, and (b) any roll for smoking made
20 wholly or in part of tobacco wrapped in any substance containing tobacco
21 that, because of its appearance, the type of tobacco used in the filler,
22 or its packaging and labeling, is likely to be offered to, or purchased
23 by, consumers as a cigarette described in paragraph (a) of this subdivi-
24 sion. [However, a roll will not be considered to be a cigarette for
25 purposes of paragraph (b) of this subdivision if it is not treated as a
26 cigarette for federal excise tax purposes under the applicable federal
27 statute in effect on April first, two thousand eight.]
28 19. "Cigar." Any roll of tobacco wrapped in leaf tobacco or in any
29 substance containing tobacco (other than any roll of tobacco that is a
30 cigarette as defined in subdivision one of this section). [However, a
31 roll will not be considered to be a cigar for purposes of this subdivi-
32 sion if it is not treated as a cigar for federal excise tax purposes
33 under the applicable federal statute in effect on April first, two thou-
34 sand eight.]
35 § 2. Paragraph (a) of subdivision 1 of section 471-b of the tax law,
36 as amended by section 2 of part QQ1 of chapter 57 of the laws of 2008,
37 is amended and a new paragraph (c) is added to read as follows:
38 (a) Such tax on tobacco products other than snuff and cigars shall be
39 at the rate of thirty-seven percent of the wholesale price, and is
40 intended to be imposed only once upon the sale of any tobacco products
41 other than snuff and cigars.
42 (c) Such tax on cigars shall be at the rate of fifty cents per cigar.
43 § 3. Section 471-c of the tax law, as separately amended by section 3
44 of part QQ1 of chapter 57 and chapter 552 of the laws of 2008, is
45 amended to read as follows:
46 § 471-c. Use tax on tobacco products. (a) There is hereby imposed and
47 shall be paid a tax on all tobacco products used in the state by any
48 person, except that no such tax shall be imposed (1) if the tax provided
49 in section four hundred seventy-one-b of this article is paid, or (2) on
50 the use of tobacco products which are exempt from the tax imposed by
51 said section, or (3) on the use of two hundred fifty cigars or less, or
52 five pounds or less of tobacco other than roll-your-own tobacco, or
53 thirty-six ounces or less of roll-your-own tobacco brought into the
54 state on, or in the possession of, any person.
S. 60--A 87 A. 160--A
1 [(a)] (i) Such tax on tobacco products other than snuff and cigars
2 shall be at the rate of thirty-seven percent of the wholesale price.
3 [(b)] (ii) Such tax on snuff shall be at the rate of ninety-six cents
4 per ounce and a proportionate rate on any fractional parts of an ounce,
5 provided that cans or packages of snuff with a net weight of less than
6 one ounce shall be taxed at the equivalent rate of cans or packages
7 weighing one ounce. Such tax shall be computed based on the net weight
8 as listed by the manufacturer.
9 (iii) Such tax on cigars shall be at the rate of fifty cents per
10 cigar.
11 (b) Within twenty-four hours after liability for the tax accrues, each
12 such person shall file with the commissioner a return in such form as
13 the commissioner may prescribe together with a remittance of the tax
14 shown to be due thereon. For purposes of this article, the word "use"
15 means the exercise of any right or power actual or constructive and
16 shall include but is not limited to the receipt, storage or any keeping
17 or retention for any length of time, but shall not include possession
18 for sale. All the other provisions of this article, if not inconsistent,
19 shall apply to the administration and enforcement of the tax imposed by
20 this section in the same manner as if the language of said provisions
21 had been incorporated in full into this section.
22 § 4. Paragraphs (e) and (f) of subdivision 2 of section 480 of the tax
23 law, as amended by chapter 744 of the laws of 1990, are amended and a
24 new paragraph (g) is added to read as follows:
25 (e) [Any] Such applicant or any controlling person [of such applicant]
26 has committed any of the acts specified in subdivision three of this
27 section within the preceding five years, [or]
28 (f) Such applicant or any controlling person has been finally deter-
29 mined to have violated any of the provisions of this article or article
30 twenty-A of this chapter, or any rule or regulation adopted pursuant to
31 this article or article twenty-A of this chapter[.], or
32 (g) After carefully evaluating the character, fitness, experience,
33 maturity and financial responsibility of the applicant or any control-
34 ling person, the commissioner determines that the public convenience and
35 advantage would not be served by approval of the application.
36 § 5. Subparagraphs (ii), (iii) and (iv) of paragraph (b) of subdivi-
37 sion 3 of section 480 of the tax law, subparagraphs (ii) and (iii) as
38 added by chapter 860 of the laws of 1987 and subparagraph (iv) as
39 amended by chapter 61 of the laws of 1989, are amended and two new
40 subparagraphs (v) and (vi) are added to read as follows:
41 (ii) Has been convicted in a court of competent jurisdiction, either
42 within or without the state, of a [felony] crime, bearing on the
43 licensee's duties and obligations under this chapter,
44 (iii) Has impersonated any person represented to be a wholesale dealer
45 under this article but not in fact licensed under this section, [or]
46 (iv) Has knowingly aided and abetted the sale of cigarettes or tobacco
47 products by a person which such licensee or controlling person knows (A)
48 has not been licensed by the commissioner [of taxation and finance] and
49 (B) is a wholesale dealer pursuant to the terms of subdivision eight of
50 section four hundred seventy of this [chapter.] article,
51 (v) Has been convicted in a court of competent jurisdiction, either
52 within or without the state, of a crime involving moral turpitude, or
53 (vi) Has engaged in conduct which bears on the licensee's or control-
54 ling person's character, fitness, experience, maturity or financial
55 responsibility and would have allowed the commissioner to refuse to
56 issue a license to such licensee.
S. 60--A 88 A. 160--A
1 § 6. Paragraphs (a) and (b) of subdivision 4 of section 480-a of the
2 tax law, as added by chapter 629 of the laws of 1996, are amended to
3 read as follows:
4 (a) If a retail dealer possesses or sells unstamped or unlawfully
5 stamped packages of cigarettes, or if a retail dealer is also licensed
6 as an agent pursuant to section four hundred seventy-two of this article
7 and it possesses unlawfully stamped packages of cigarettes or sells
8 unstamped or unlawfully stamped packages of cigarettes at retail, or if
9 a retail dealer possesses or sells tobacco products with respect to
10 which the tobacco products tax has not been paid or assumed by a
11 distributor or a tobacco products dealer, (i) its registration shall be
12 suspended for a period of not more than six months, or (ii) for a second
13 such possession or sale within a period of five years, its registration
14 shall be suspended for a period of up to thirty-six months, or (iii) for
15 a third such possession or sale within a period of five years, its
16 registration may be revoked for a period of up to five years. A retail
17 dealer registration shall be suspended or revoked pursuant to this
18 subdivision immediately upon such dealer's receipt of written notice of
19 suspension or revocation from the commissioner. If a retail dealer sells
20 cigarettes or tobacco products through more than one place of business
21 in this state, the retail dealer registration shall not be suspended or
22 revoked pursuant to this subdivision, but the certificate of registra-
23 tion issued to the place of business, cart, stand, truck or other
24 merchandising device where unstamped or unlawfully stamped cigarettes or
25 tobacco products with respect to which the tobacco products tax has not
26 been paid or assumed by a distributor or a tobacco products dealer were
27 found shall be suspended or cancelled for possession or sale of
28 unstamped or unlawfully stamped packages of cigarettes or such tobacco
29 products, as if such certificate of registration were a retail dealer
30 registration. A suspension or cancellation of a certificate of registra-
31 tion shall be treated as if it were a suspension or revocation of a
32 registration. If unstamped or unlawfully stamped cigarettes or such
33 tobacco products are found in a retail dealer's warehouse, the suspen-
34 sion or revocation of the retail dealer's registration pursuant to this
35 subdivision shall be applicable to each retail place of business in this
36 state through which such retail dealer sells cigarettes or tobacco
37 products.
38 (b) A retail dealer who is notified of a suspension or revocation of
39 its registration pursuant to this subdivision shall have the right to
40 have the suspension or revocation reviewed by the commissioner or his or
41 her designee by contacting the department at a telephone number or an
42 address to be disclosed in the notice of suspension or revocation within
43 ten days of such dealer's receipt of such notification. The retail deal-
44 er may present written evidence or argument in support of its defense to
45 the suspension or revocation, or may appear at a scheduled conference
46 with the commissioner or his or her designee to present oral arguments
47 and written and oral evidence in support of such defense. The commis-
48 sioner or his or her designee is authorized to delay the effective date
49 of the suspension or revocation to enable the retail dealer to present
50 further evidence or arguments in connection with the suspension or revo-
51 cation. The commissioner or his or her designee shall cancel the suspen-
52 sion or revocation of registration if the commissioner or his or her
53 designee is not satisfied by a preponderance of the evidence that the
54 retail dealer possessed or sold unstamped or unlawfully stamped packages
55 of cigarettes or tobacco products with respect to which the tobacco
S. 60--A 89 A. 160--A
1 products tax had not been paid or assumed by a distributor or a tobacco
2 products dealer.
3 § 7. Paragraph (b) of subdivision 1 of section 481 of the tax law, as
4 amended by chapter 262 of the laws of 2000, subparagraph (i) and clause
5 (A) of subparagraph (ii) as amended by chapter 604 of the laws of 2008,
6 is amended and a new paragraph (e) is added to read as follows:
7 (b) (i) In addition to any other penalty imposed by this article, the
8 commissioner may (A) impose a penalty of not more than one hundred fifty
9 dollars for each two hundred cigarettes, or fraction thereof, in excess
10 of one thousand cigarettes in unstamped or unlawfully stamped packages
11 in the possession or under the control of any person or (B) impose a
12 penalty of not more than two hundred dollars for each ten unaffixed
13 false, altered or counterfeit cigarette tax stamps, imprints or
14 impressions, or fraction thereof, in the possession or under the control
15 of any person. In addition, the commissioner may impose a penalty of not
16 more than seventy-five dollars for each fifty cigars or one pound of
17 [tobacco] snuff, or fraction thereof, in excess of two hundred fifty
18 cigars or five pounds of [tobacco] snuff in the possession or under the
19 control of any person and a penalty of not more than one hundred fifty
20 dollars for each fifty cigars or pound of [tobacco] snuff, or fraction
21 thereof, in excess of five hundred cigars or ten pounds of [tobacco]
22 snuff in the possession or under the control of any person, with respect
23 to which the tobacco products tax has not been paid or assumed by a
24 distributor or tobacco products dealer; provided, however, that any such
25 penalty imposed shall not exceed seven thousand five hundred dollars in
26 the aggregate. The commissioner may impose a penalty of not more than
27 seventy-five dollars for each fifty cigars or one pound of [tobacco]
28 snuff, or fraction thereof, in excess of fifty cigars or one pound of
29 [tobacco] snuff in the possession or under the control of any tobacco
30 products dealer or distributor appointed by the commissioner, and a
31 penalty of not more than one hundred fifty dollars for each fifty cigars
32 or pound of [tobacco] snuff, or fraction thereof, in excess of two
33 hundred fifty cigars or five pounds of [tobacco] snuff in the possession
34 or under the control of any such dealer or distributor, with respect to
35 which the tobacco products tax has not been paid or assumed by a
36 distributor or a tobacco products dealer; provided, however, that any
37 such penalty imposed shall not exceed fifteen thousand dollars in the
38 aggregate.
39 (ii) The penalties imposed by this subparagraph may be imposed by the
40 commissioner in addition to any other penalty imposed by this article,
41 but in lieu of the penalties imposed by subparagraph (i) of this para-
42 graph:
43 (A) (I) (1) not less than thirty dollars but not more than two hundred
44 dollars for each two hundred cigarettes, or fraction thereof, in excess
45 of one thousand cigarettes but less than or equal to five thousand ciga-
46 rettes in unstamped or unlawfully stamped packages knowingly in the
47 possession or knowingly under the control of any person or (2) not less
48 than thirty dollars but not more than two hundred dollars for each ten
49 unaffixed false, altered or counterfeit cigarette tax stamps, imprints
50 or impressions, or fraction thereof, less than or equal to two hundred
51 fifty unaffixed false, altered or counterfeit cigarette tax stamps,
52 imprints or impressions, knowingly in the possession or [knowing] know-
53 ingly under the control of any person;
54 (II) (1) not less than seventy-five dollars but not more than two
55 hundred dollars for each two hundred cigarettes, or fraction thereof, in
56 excess of five thousand cigarettes but less than or equal to twenty
S. 60--A 90 A. 160--A
1 thousand cigarettes in unstamped or unlawfully stamped packages knowing-
2 ly in the possession or knowingly under the control of any person or (2)
3 not less than seventy-five dollars but not more than two hundred dollars
4 for each ten unaffixed false, altered or counterfeit cigarette tax
5 stamps, imprints or impressions, or fraction thereof, in excess of two
6 hundred fifty unaffixed false, altered or counterfeit cigarette tax
7 stamps, imprints or impressions but less than or equal to one thousand
8 unaffixed false, altered or counterfeit cigarette tax stamps, imprints
9 or impressions, knowingly in the possession or knowingly under the
10 control of any person; and
11 (III) (1) not less than one hundred dollars but not more than two
12 hundred dollars for each two hundred cigarettes, or fraction thereof, in
13 excess of twenty thousand cigarettes in unstamped or unlawfully stamped
14 packages, knowingly in the possession or knowingly under the control of
15 any person or (2) not less than one hundred dollars but not more than
16 two hundred dollars for each ten unaffixed false, altered or counterfeit
17 cigarette tax stamps, imprints or impressions, or fraction thereof, in
18 excess of one thousand unaffixed false, altered or counterfeit cigarette
19 tax stamps, imprints or impressions, knowingly in the possession or
20 knowingly under the control of any person.
21 (B)(I) not less than twenty-five dollars but not more than one hundred
22 dollars for each fifty cigars or one pound of [tobacco] snuff, or frac-
23 tion thereof, in excess of two hundred fifty cigars or five pounds of
24 [tobacco] snuff knowingly in the possession or knowingly under the
25 control of any person, with respect to which the tobacco products tax
26 has not been paid or assumed by a distributor or tobacco products deal-
27 er; and
28 (II) not less than fifty dollars but not more than two hundred dollars
29 for each fifty cigars or pound of [tobacco] snuff, or fraction thereof,
30 in excess of five hundred cigars or ten pounds of [tobacco] snuff know-
31 ingly in the possession or knowingly under the control of any person,
32 with respect to which the tobacco products tax has not been paid or
33 assumed by a distributor or tobacco products dealer; provided, however,
34 that any such penalty imposed under this clause shall not exceed ten
35 thousand dollars in the aggregate.
36 (C) (I) not less than twenty-five dollars but not more than one
37 hundred dollars for each fifty cigars or one pound of [tobacco] snuff,
38 or fraction thereof, in excess of fifty cigars or one pound of [tobacco]
39 snuff knowingly in the possession or knowingly under the control of any
40 person, with respect to which the tobacco products tax has not been paid
41 or assumed by a distributor or tobacco products dealer; and
42 (II) not less than fifty dollars but not more than two hundred dollars
43 for each fifty cigars or pound of [tobacco] snuff, or fraction thereof,
44 in excess of two hundred fifty cigars or five pounds of [tobacco] snuff
45 knowingly in the possession or knowingly under the control of any
46 person, with respect to which the tobacco products tax has not been paid
47 or assumed by a distributor or a tobacco products dealer; provided,
48 however, that any such penalty imposed under this clause shall not
49 exceed twenty thousand dollars in the aggregate.
50 (iii) In addition to any other penalty imposed by law, the commission-
51 er may impose a penalty of two hundred percent of the amount of the tax
52 for each pound of tobacco, other than cigars and snuff, in the
53 possession or under the control of any person, with respect to which the
54 tobacco products tax has not been paid or assumed by a distributor or
55 tobacco products dealer. Provided, however, the penalty imposed under
S. 60--A 91 A. 160--A
1 this subparagraph shall only apply if the amount of tobacco, other than
2 cigars and snuff, equals or exceeds five pounds.
3 (iv) Any penalty provided for in this paragraph shall be determined as
4 provided in section four hundred seventy-eight of this [chapter]
5 article, and may be reviewed only pursuant to such section. Such penalty
6 shall be collected in the same manner as the taxes imposed by this arti-
7 cle. The commissioner in [the commissioner's] his or her discretion, may
8 remit all or part of such penalty. Such penalty shall be paid to the
9 department and disposed of as hereinafter provided with respect to
10 moneys derived from the tax.
11 (e) In addition to any other penalties that may be imposed by law, any
12 or all of the following penalties may be imposed:
13 (i) Any person who fails to file an informational return under this
14 article on or before the prescribed date must pay a penalty of fifteen
15 hundred dollars for the first violation and a penalty of three thousand
16 dollars for each subsequent violation, unless it can be shown that this
17 failure is due to reasonable cause and not willful neglect.
18 (ii) Any person who fails to file an informational return within sixty
19 days of the date prescribed for filing must pay a penalty of two thou-
20 sand dollars for the first violation and a penalty of four thousand
21 dollars for each subsequent violation, unless it can be shown that this
22 failure is due to reasonable cause and not willful neglect.
23 (iii) Any person who fails to file a complete informational return
24 must pay a penalty of fifteen hundred dollars for the first violation
25 and a penalty of three thousand dollars for each subsequent violation,
26 unless it can be shown that this failure is due to reasonable cause and
27 not willful neglect.
28 (iv) In addition to any criminal penalty provided by law, if any
29 person makes a statement on an informational return and, as of the time
30 of the statement, there was no reasonable basis for such statement, that
31 person must pay a penalty of two thousand dollars for the first
32 violation and a penalty of four thousand dollars for each subsequent
33 violation.
34 § 8. Section 481 of the tax law is amended by adding a new subdivision
35 2-a to read as follows:
36 2-a. Any officer, director, shareholder or employee of a corporation
37 or of a dissolved corporation, any employee of a partnership or any
38 employee of an individual proprietorship, who as an officer, director,
39 shareholder or employee is under a duty to act for such corporation,
40 partnership or proprietorship in complying with any requirement of this
41 article, and any partner of a partnership, that fails to pay the taxes
42 imposed by or pursuant to this article, will, in addition to other
43 penalties provided by law, be liable for a penalty equal to the total
44 amount of the tax not paid, plus penalties and interest computed pursu-
45 ant to this section. If the commissioner determines that this failure
46 was due to reasonable cause and not due to willful neglect, it may waive
47 all or part of the penalty imposed under this subdivision. That penalty
48 will be determined, assessed, collected and paid in the same manner as
49 the taxes imposed by this article and will be disposed of as hereinafter
50 provided with respect to moneys derived from the tax.
51 § 9. Subdivision 1 of section 11-1301 of the administrative code of
52 the city of New York, is amended by section 3 of part MM-1 of chapter 57
53 of the laws of 2008, is amended to read as follows:
54 1. "Cigarette." (a) Any roll for smoking made wholly or in part of
55 tobacco or any other substance wrapped in paper or in any other
56 substance not containing tobacco, and (b) any roll for smoking made
S. 60--A 92 A. 160--A
1 wholly or in part of tobacco wrapped in any substance containing tobacco
2 which, because of its appearance, the type of tobacco used in the
3 filler, or its packaging and labeling, is likely to be offered to, or
4 purchased by, consumers as a cigarette described in paragraph (a) of
5 this subdivision. [However, a roll will not be considered to be a ciga-
6 rette for purposes of paragraph (b) of this subdivision if it is not
7 treated as a cigarette for federal excise tax purposes under the appli-
8 cable federal statute in effect on April first, two thousand eight.]
9 § 10. Subdivision b of section 20-201 of the administrative code of
10 the city of New York, as amended by section 4 of part MM-1 of chapter 57
11 of the laws of 2008, is amended to read as follows:
12 b. "Cigarette" shall mean (1) any roll for smoking made wholly or in
13 part of tobacco or any other substance wrapped in paper or in any other
14 substance not containing tobacco, and (2) any roll for smoking made
15 wholly or in part of tobacco wrapped in any substance containing tobacco
16 that, because of its appearance, the type of tobacco used in the filler,
17 or its packaging and labeling, is likely to be offered to, or purchased
18 by, consumers as a cigarette described in paragraph one of this subdivi-
19 sion. [However, a roll will not be considered to be a cigarette for
20 purposes of paragraph two of this subdivision if it is not treated as a
21 cigarette for federal excise tax purposes under the applicable federal
22 statute in effect on April first, two thousand eight.]
23 § 11. Subdivision 2 of section 1 of chapter 235 of the laws of 1952
24 relating to enabling any city of the state having a population of one
25 million or more to adopt, and amend local laws, imposing certain speci-
26 fied types of taxes on cigarettes which the legislature has or would
27 have power and authority to impose, to provide for the review of such
28 taxes, and to limit the application of such local laws, as amended by
29 section 5 of part MM-1 of chapter 57 of the laws of 2008, is amended to
30 read as follows:
31 (2) As used herein, the term "cigarette" shall mean and include (a)
32 any roll for smoking made wholly or in part of tobacco or of any other
33 substance wrapped in paper or in any other substance not containing
34 tobacco, and (b) any roll for smoking made wholly or in part of tobacco
35 wrapped in any substance containing tobacco that, because of its appear-
36 ance, the type of tobacco used in the filler, or its packaging and
37 labeling, is likely to be offered to, or purchased by, consumers as a
38 cigarette described in paragraph (a) of this subdivision. [However, a
39 roll will not be considered to be a cigarette for purposes of paragraph
40 (b) of this subdivision if it is not treated as a cigarette for federal
41 excise tax purposes under the applicable federal statute in effect on
42 April first, two thousand eight.] The term "cigar" does not include any
43 cigarette as defined in this subdivision.
44 § 12. This act shall take effect immediately; provided however that
45 section one of this act shall take effect April 1, 2009; provided,
46 further, that any tobacco product manufacturer required to file a
47 certification between April 16 and April 30, 2008, under subdivision 1
48 of section 480-b of the tax law, with respect to cigarettes that are
49 first being defined as cigarettes as a result of the amendments made by
50 this act, must file that certification no later than 60 days after the
51 date this act becomes a law; and provided further that sections two,
52 three and four of this act shall take effect April 1, 2009, and shall
53 apply to cigars that first become subject to taxation under article 20
54 of the tax law on or after that date; and provided further that sections
55 five, six, seven and eight of this act shall take effect on the first
S. 60--A 93 A. 160--A
1 day of the first month next occurring 90 days after this act becomes a
2 law and shall apply to sales made on or after such date.
3 PART S
4 Section 1. Paragraph 3 of subdivision (b) of section 1101 of the tax
5 law, as amended by section 21 of part Y of chapter 63 of the laws of
6 2000, is amended to read as follows:
7 (3) Receipt. The amount of the sale price of any property and the
8 charge for any service taxable under this article, including gas and gas
9 service and electricity and electric service of whatever nature, valued
10 in money, whether received in money or otherwise and whether received
11 from the purchaser or a third party, including any amount for which
12 credit is allowed by the vendor to the purchaser, without any deduction
13 for expenses [or], early payment discounts [and] or any discount given
14 for a coupon. Receipt also [including] includes any charges by the
15 vendor to the purchaser for shipping or delivery, and, with respect to
16 gas and gas service and electricity and electric service, any charges by
17 the vendor for transportation, transmission or distribution, regardless
18 of whether such charges are separately stated in the written contract,
19 if any, or on the bill rendered to such purchaser and regardless of
20 whether such shipping or delivery or transportation, transmission, or
21 distribution is provided by such vendor or a third party, but [exclud-
22 ing] excludes any credit for tangible personal property accepted in part
23 payment and intended for resale. For special rules governing computation
24 of receipts, see section eleven hundred eleven of this article.
25 § 2. Subdivision (b) of section 1101 of the tax law is amended by
26 adding a new paragraph 33 to read as follows:
27 (33) Coupon. (A) An instrument provided by a vendor or a third party,
28 that is presented and surrendered by a purchaser to the vendor in order
29 to receive a reduction in the sale price, whether or not any portion of
30 the price reduction is paid to the vendor by a third party.
31 (B) For purposes of the tax imposed by section eleven hundred ten and
32 for purposes of section eleven hundred eleven of this article, the term
33 "consideration" includes any discount given for a coupon.
34 § 3. This act shall take effect on June 1, 2009 and shall apply to
35 sales or uses occurring on or after that date in accordance with the
36 applicable transitional provisions in sections 1106 and 1217 of the tax
37 law.
38 PART T
39 Section 1. The closing paragraph of subdivision 1 of section 98-a of
40 the state finance law, as amended by section 13 of part Y of chapter 61
41 of the laws of 2005, is amended to read as follows:
42 Provided, however, that income received from the investment of moneys
43 of the local assistance account, the state purposes account and the
44 capital projects fund may be credited in whole or in part to one or more
45 of such funds to the extent necessary to reimburse first instance appro-
46 priations for interest on temporary obligations issued on behalf of the
47 fund or funds to be credited. Notwithstanding any other provision of
48 this section or of any other general or special law, all moneys avail-
49 able and retained on deposit for the payment of lottery prizes may be
50 invested or caused to be invested, by the comptroller, or by the divi-
51 sion of the lottery if the comptroller has authorized the division of
52 the lottery to directly invest such funds, in obligations [by the comp-
S. 60--A 94 A. 160--A
1 troller] as herein provided[, except that] or in the same manner and in
2 such securities or other investments as the trustee or trustees of a
3 public pension fund are authorized to invest pursuant to article four-A
4 of the retirement and social security law, and provided further that
5 such obligations need not mature or be redeemable at the option of the
6 holder within seven years of the date of such investment. Income
7 received from such investments may be used for the payment of prizes
8 awarded and made payable in more than one payment, including prizes
9 awarded and made payable throughout the lifetime of the lottery prize
10 winner.
11 § 2. This act shall take effect immediately.
12 PART U
13 Section 1. Paragraph 30 of subdivision (a) of section 1115 of the tax
14 law, as amended by section 84 of part A of chapter 56 of the laws of
15 1998, is amended to read as follows:
16 (30) [Clothing] During the seven-day periods each year beginning the
17 Monday immediately preceding the first Sunday of February and ending
18 such Sunday, and beginning August twenty-fifth and ending August thir-
19 ty-first, clothing and footwear for which the receipt or consideration
20 given or contracted to be given is less than [one] five hundred [ten]
21 dollars per article of clothing, per pair of shoes or other articles of
22 footwear or per item used or consumed to make or repair such clothing
23 and which becomes a physical component part of such clothing.
24 § 2. Subdivision (g) of section 1109 of the tax law is amended by
25 adding a new paragraph 9 to read as follows:
26 (9) Notwithstanding that the sales and compensating use taxes imposed
27 by a city of one million or more located in the metropolitan commuter
28 transportation district exempt clothing and footwear pursuant to the
29 authority of clause (vii) of paragraph four of subdivision (a) of
30 section twelve hundred ten of this article, during the two seven-day
31 periods during which clothing and footwear are exempt from the taxes
32 imposed by this article, such city shall, for purposes of this subdivi-
33 sion, be deemed to have exempted such clothing and footwear pursuant to
34 the authority of paragraph one of subdivision (a) of section twelve
35 hundred ten of this chapter and such city and the state shall be subject
36 to the reimbursement and other provisions of this subdivision.
37 § 3. Paragraph 1 of subdivision (a) of section 1210 of the tax law, as
38 amended by chapter 306 of the laws of 2005, subparagraph (i) of para-
39 graph 1 as amended by section 4 of part SS1 of chapter 57 of the laws of
40 2008 and subparagraph (ii) of paragraph 1 as amended by chapter 144 of
41 the laws of 2006, is amended to read as follows:
42 (1) [(i)] Either, all of the taxes described in article twenty-eight
43 of this chapter, at the same uniform rate, as to which taxes all
44 provisions of the local laws, ordinances or resolutions imposing such
45 taxes shall be identical, except as to rate and except as otherwise
46 provided, with the corresponding provisions in such article twenty-
47 eight, including the definition and exemption provisions of such arti-
48 cle, so far as the provisions of such article twenty-eight can be made
49 applicable to the taxes imposed by such city or county and with such
50 limitations and special provisions as are set forth in this article. The
51 taxes authorized under this subdivision may not be imposed by a city or
52 county unless the local law, ordinance or resolution imposes such taxes
53 so as to include all portions and all types of receipts, charges or
S. 60--A 95 A. 160--A
1 rents, subject to state tax under sections eleven hundred five and elev-
2 en hundred ten of this chapter, except as otherwise provided.
3 (i) Any local law, ordinance or resolution enacted by any city of less
4 than one million or by any county or school district, imposing the taxes
5 authorized by this subdivision, shall, notwithstanding any provision of
6 law to the contrary, exclude from the operation of such local taxes all
7 sales of tangible personal property for use or consumption directly and
8 predominantly in the production of tangible personal property, gas,
9 electricity, refrigeration or steam, for sale, by manufacturing, proc-
10 essing, generating, assembly, refining, mining or extracting; and all
11 sales of tangible personal property for use or consumption predominantly
12 either in the production of tangible personal property, for sale, by
13 farming or in a commercial horse boarding operation, or in both; and,
14 unless such city, county or school district elects otherwise, shall omit
15 the provision for credit or refund contained in clause six of subdivi-
16 sion (a) of section eleven hundred nineteen of this chapter.
17 (ii) Any local law, ordinance or resolution enacted by any city, coun-
18 ty or school district, imposing the taxes authorized by this subdivi-
19 sion, shall omit the residential solar energy systems equipment
20 exemption provided for in subdivision (ee), the clothing and footwear
21 exemption provided for in paragraph thirty of subdivision (a) and the
22 qualified empire zone enterprise exemptions provided for in subdivision
23 (z) of section eleven hundred fifteen of this chapter, unless such city,
24 county or school district elects otherwise as to either such residential
25 solar energy systems equipment exemption or such clothing and footwear
26 exemption or such qualified empire zone enterprise exemptions[; provided
27 that if such a city having a population of one million or more in which
28 the 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) of this section or repeals such
33 resolution, such resolution or repeal shall also be deemed to amend any
34 local law, ordinance or resolution enacted by such a city imposing such
35 taxes pursuant to the authority of this subdivision, whether or not such
36 taxes are suspended at the time such city enacts its resolution pursuant
37 to subdivision (k), (l) or (n) of this section or at the time of any
38 such repeal; provided, further, that any such local law, ordinance or
39 resolution and section eleven hundred seven of this chapter, as deemed
40 to be amended in the event a city of one million or more enacts a resol-
41 ution pursuant to the authority of subdivision (k), (l) or (n) of this
42 section, shall be further amended, as provided in section twelve hundred
43 eighteen of this subpart, so that the residential solar energy systems
44 equipment exemption or the clothing and footwear exemption or the quali-
45 fied empire zone enterprise exemptions in any such local law, ordinance
46 or resolution or in such section eleven hundred seven are the same, as
47 the case may be, as the residential solar energy systems equipment
48 exemption provided for in subdivision (ee), the clothing and footwear
49 exemption in paragraph thirty of subdivision (a) or the qualified empire
50 zone enterprise exemptions in subdivision (z) of section eleven hundred
51 fifteen of this chapter.
52 (ii) Notwithstanding any other provision of the law to the contrary,
53 any county, imposing the taxes authorized by this subdivision, having a
54 population of not less than one hundred thirty-nine thousand and not
55 more than one hundred forty thousand, determined in accordance with the
56 two thousand decennial federal census, may by local law, ordinance or
S. 60--A 96 A. 160--A
1 resolution elect to exempt from such local sales and compensating use
2 taxes clothing and footwear, as defined in paragraph fifteen of subdivi-
3 sion (b) of section eleven hundred one of this chapter, for which the
4 receipt or consideration given or contracted to be given is less than
5 one hundred ten dollars per article of clothing, per pair of shoes or
6 other articles of footwear or per item used or consumed to make or
7 repair such clothing and which becomes a physical component part of such
8 clothing. Every such county shall comply with the provisions of subdivi-
9 sions (d) and (e) of this section, including such provisions applicable
10 to providing or repealing the exemption described in paragraph thirty of
11 subdivision (a) of section eleven hundred fifteen of this chapter.]
12 § 4. Subdivision (k) of section 1210 of the tax law is REPEALED.
13 § 5. Notwithstanding any provision of state or local law, ordinance or
14 resolution to the contrary: (a) Every local law, ordinance or resolution
15 or part of it providing for an exemption of clothing and footwear
16 described in paragraph 30 of subdivision (a) of section 1115 of the tax
17 law elected by a county or city (other than a city of one million or
18 more) pursuant to the authority of article 29 of the tax law that is in
19 effect on the day before this act shall have become a law or was elected
20 prior to such date to take effect at a later date is REPEALED.
21 (b) A county or city (other than a city of one million or more) that
22 imposes sales and compensating use taxes pursuant to the authority of
23 paragraph 1 of subdivision (a) of section 1210 of the tax law, acting
24 through its local legislative body, is authorized to adopt a resolution
25 to take effect August 1, 2009, to elect the exemption for clothing and
26 footwear described in paragraph 30 of subdivision (a) of section 1115 of
27 the tax law, as amended by section one of this act. For the resolution
28 to be effective, the county or city must: (i) adopt the resolution in
29 exactly the form prepared by the commissioner of taxation and finance,
30 on or before July 1, 2009; and (ii) mail a certified copy of it by that
31 date to the commissioner of taxation and finance otherwise in accordance
32 with the provisions of subdivision (d) of section 1210 of the tax law;
33 and (iii) the county or city must also comply with the provisions of
34 subdivision (e) of such section 1210. Such resolution shall, if properly
35 adopted pursuant to this section, be deemed to amend the county's or
36 city's local law, ordinance or resolution imposing its sales and use
37 taxes to provide this exemption.
38 § 6. This act shall take effect June 1, 2009, and shall apply in
39 accordance with applicable transitional provisions in sections 1106 and
40 1217 of the tax law, provided that a county or city that imposes sales
41 and compensating use taxes pursuant to the authority of subdivision (a)
42 of section 1210 of the tax law (other than a city of one million or
43 more) shall be authorized to adopt a resolution described in section
44 five of this act on or after the date this act becomes a law.
45 PART V
46 Section 1. Subdivision (c) of section 1105 of the tax law is amended
47 by adding two new paragraphs 10 and 11 to read as follows:
48 (10) Beauty, barbering, hair restoring, manicuring, pedicuring, elec-
49 trolysis, massage services and similar services, and every service sold
50 by weight control salons, health salons, gymnasiums, turkish and sauna
51 bath and similar establishments and every charge for the use of those
52 facilities, whether or not any tangible personal property is transferred
53 in conjunction therewith; but excluding services rendered by a physi-
54 cian, osteopath, dentist, nurse, physiotherapist, chiropractor, podia-
S. 60--A 97 A. 160--A
1 trist, optometrist, ophthalmic dispenser or a person performing similar
2 services licensed under title eight of the education law, as amended,
3 and excluding those services when performed on pets and other animals. A
4 sale of tangible personal property to a person for use by the person in
5 performing a service subject to the tax imposed by this paragraph is not
6 a purchase for resale.
7 (11) Credit rating and credit reporting services, including, but not
8 limited to, those services provided by mercantile and consumer credit
9 rating or reporting bureaus or agencies and credit adjustment or
10 collection bureaus or agencies, whether rendered in written or oral form
11 or in any other manner, except to the extent otherwise taxable under
12 other provisions of this section. A sale of tangible personal property
13 to a person for use by the person in performing a service subject to the
14 tax imposed by this paragraph is not a purchase for resale. However, a
15 refund or credit equal to the amount of the sales or compensating use
16 tax imposed by subdivision (a) of this section or section eleven hundred
17 ten of this part and paid on the sale or use of tangible personal prop-
18 erty which is later used by such purchaser in performing a service
19 subject to tax under this paragraph will be allowed that purchaser
20 against the tax imposed by this paragraph and collected by that person
21 on the sale of that service if that property has become a physical
22 component part of the property upon which the service is performed or
23 has been transferred to the purchaser of the service in conjunction with
24 the performance of the service subject to tax, in the manner prescribed
25 by subdivision (c) of section eleven hundred nineteen of this article.
26 § 2. The closing paragraph of subdivision (c) of section 1105 of the
27 tax law, as amended by chapter 190 of the laws of 1990, is amended to
28 read as follows:
29 Wages, salaries and other compensation paid by an employer to an
30 employee for performing as an employee the services described in [para-
31 graphs (1) through (9) of] this subdivision [(c)] are not receipts
32 subject to the taxes imposed [under such] by this subdivision.
33 § 3. Section 1106 of the tax law is amended by adding a new subdivi-
34 sion (k) to read as follows:
35 (k) The taxes imposed by paragraphs ten and eleven of subdivision (c)
36 of section eleven hundred five of this part must be paid with respect to
37 receipts from all sales of services on or after the effective date of
38 such taxes although rendered or agreed to be rendered under a prior
39 contract. Where a service is sold on a monthly, quarterly, yearly or
40 other term basis, the charge for the service will be subject to the tax
41 imposed by those paragraphs to the extent that the charge is applicable
42 to any period on or after the date the tax becomes effective, and the
43 charge shall be apportioned on the basis of the ratio of the number of
44 days falling within the period to the total number of days in the full
45 term or period.
46 § 4. Subdivision (a) of section 1110 of the tax law, as amended by
47 section 28 of part Y of chapter 63 of the laws of 2000, is amended to
48 read as follows:
49 (a) Except to the extent that property or services have already been
50 or will be subject to the sales tax under this article, there is hereby
51 imposed on every person a use tax for the use within this state on and
52 after June first, nineteen hundred seventy-one except as otherwise
53 exempted under this article, (A) of any tangible personal property
54 purchased at retail, (B) of any tangible personal property (other than
55 computer software used by the author or other creator) manufactured,
56 processed or assembled by the user, (i) if items of the same kind of
S. 60--A 98 A. 160--A
1 tangible personal property are offered for sale by him in the regular
2 course of business or (ii) if items are used as such or incorporated
3 into a structure, building or real property by a contractor, subcontrac-
4 tor or repairman in erecting structures or buildings, or building on, or
5 otherwise adding to, altering, improving, maintaining, servicing or
6 repairing real property, property or land, as the terms real property,
7 property or land are defined in the real property tax law, if items of
8 the same kind are not offered for sale as such by such contractor,
9 subcontractor or repairman or other user in the regular course of busi-
10 ness, (C) of any of the services described in paragraphs (1), (7) [and],
11 (8) and (11) of subdivision (c) of section eleven hundred five of this
12 part, (D) of any tangible personal property, however acquired, where not
13 acquired for purposes of resale, upon which any of the services
14 described in paragraphs (2), (3) and (7) of subdivision (c) of section
15 eleven hundred five of this part have been performed, (E) of any tele-
16 phone answering service described in subdivision (b) of section eleven
17 hundred five of this part, (F) of any computer software written or
18 otherwise created by the user if the user offers software of a similar
19 kind for sale as such or as a component part of other property in the
20 regular course of business, (G) of any prepaid telephone calling
21 service, and (H) of any gas or electricity described in subdivision (b)
22 of section eleven hundred five of this part.
23 § 5. Subdivision (d) of section 1115 of the tax law, as amended by
24 chapter 190 of the laws of 1990, is amended to read as follows:
25 (d) Services otherwise taxable under paragraph (1), (2), (3), (7)
26 [or], (8) or (11) of subdivision (c) of section eleven hundred five of
27 this article shall be exempt from tax under this article if the tangible
28 property upon which the services were performed is delivered to the
29 purchaser outside this state for use outside this state.
30 § 6. Subdivision (z) of section 1115 of the tax law is amended by
31 adding a new paragraph 4 to read as follows:
32 (4) The exemptions provided in this subdivision shall not apply to the
33 tax imposed by paragraph ten of subdivision (c) of section eleven
34 hundred five of this article or to similar taxes imposed pursuant to the
35 authority of article twenty-nine of this chapter.
36 § 7. Subdivision (b) of section 1116 of the tax law is amended by
37 adding a new paragraph 8 to read as follows:
38 (8) sales of services described in paragraph ten or eleven of subdivi-
39 sion (c) of section eleven hundred five of this article, unless the
40 purchaser is an exempt organization.
41 § 8. Subdivision 4 of section 1131 of the tax law, as amended by
42 section 34 of part Y of chapter 63 of the laws of 2000, is amended to
43 read as follows:
44 (4) "Property and services the use of which is subject to tax" shall
45 include: (a) all property sold to a person within the state, whether or
46 not the sale is made within the state, the use of which property is
47 subject to tax under section eleven hundred ten of this article or will
48 become subject to tax when such property is received by or comes into
49 the possession or control of such person within the state; (b) all
50 information services, protective and detective services [and], interior
51 decorating and design services, and credit rating and reporting services
52 as such services are described in subdivision (c) of section eleven
53 hundred five of this article, rendered to a person within the state,
54 whether or not such services are rendered from or at a location within
55 the state; (c) all services rendered to a person within the state,
56 whether or not such services are performed within the state, upon tangi-
S. 60--A 99 A. 160--A
1 ble personal property the use of which is subject to tax under section
2 eleven hundred ten of this article or will become subject to tax when
3 such property is received by or comes into possession or control of such
4 person within the state; (d) all property sold by a person making sales
5 described in clause (F) of subparagraph (i) of paragraph eight of subdi-
6 vision (b) of section eleven hundred one of this article to a person
7 described in such clause (F) who purchases such property at retail,
8 whether or not the sale is made within the state; (e) all telephone
9 answering service rendered to a person within the state, whether or not
10 such services are performed within the state, the use of which is
11 subject to tax under section eleven hundred ten of this article or will
12 become subject to tax when such service is received by or comes into
13 possession or control of such person within the state; (f) all prepaid
14 telephone calling services sold to a person within the state, whether or
15 not the sale is made within the state, the use of which services are
16 subject to tax under section eleven hundred ten of this article or will
17 become subject to tax when such services are received by or come into
18 the possession or control of such person within the state, and whether
19 or not such services are rendered from or at a location within the
20 state; and (g) all gas or electricity sold to a person within the state,
21 whether or not the sale is made within the state, the use of which is
22 subject to tax under section eleven hundred ten of this article or will
23 become subject to tax when it is received by or comes into the
24 possession or control of such person within the state, and whether or
25 not it is rendered from or at a location within the state.
26 § 9. Paragraphs 2 and 3 of subdivision (a) of section 1212-A of the
27 tax law, paragraph 2 as amended by chapter 190 of the laws of 1990 and
28 paragraph 3 as amended by chapter 525 of the laws of 2008, are amended
29 to read as follows:
30 (2) [a tax, at the same uniform rate, but at a rate not to exceed four
31 per centum, in multiples of one-half of one per centum, on the receipts
32 from every sale of the following services: beauty, barbering, hair
33 restoring, manicuring, pedicuring, electrolysis, massage services and
34 similar services, and every sale of services by weight control salons,
35 health salons, gymnasiums, turkish and sauna bath and similar establish-
36 ments and every charge for the use of such facilities, whether or not
37 any tangible personal property is transferred in conjunction therewith;
38 but excluding services rendered by a physician, osteopath, dentist,
39 nurse, physiotherapist, chiropractor, podiatrist, optometrist, ophthalm-
40 ic dispenser or a person performing similar services licensed under
41 title VIII of the education law, as amended, and excluding such services
42 when performed on pets and other animals.
43 (3) for a period beginning no earlier than January first, nineteen
44 hundred ninety and ending December thirty-first, two thousand eleven,] a
45 tax, at the same uniform rate, but at a rate not to exceed four per
46 centum, in multiples of one-half of one per centum, on the receipts from
47 every sale of any or all of the following services in whole or in part:
48 [credit rating, credit reporting,] credit adjustment and collection
49 services, including, but not limited to, those services provided by
50 mercantile and consumer credit rating or reporting bureaus or agencies
51 and credit adjustment or collection bureaus or agencies, whether
52 rendered in written or oral form or in any other manner, except to the
53 extent otherwise taxable under article twenty-eight of this chapter;
54 notwithstanding the foregoing, collection services shall not include
55 those services performed by a law office or a law and collection office,
56 the maintenance or conduct of which constitutes the practice of law, if
S. 60--A 100 A. 160--A
1 the services are performed by an attorney at law who has been duly
2 licensed and admitted to practice law in this state. The local law
3 imposing the taxes authorized by this paragraph may provide for exclu-
4 sions and exemptions in addition to those provided for in such para-
5 graph.
6 § 10. Paragraphs 1 and 2 of subdivision (b) of section 1212-A of the
7 tax law, as amended by chapter 190 of the laws of 1990, are amended to
8 read as follows:
9 (1) All provisions set forth in article twenty-eight of this chapter
10 applicable to the taxes imposed under section eleven hundred five of
11 this chapter, including the definition and exemption provisions of such
12 article, shall apply in respect to a tax imposed under the authority of
13 subdivision (a) of this section, except as to rate and except as other-
14 wise provided herein. A sale of tangible personal property to a person
15 for use by [him] such person in performing a service subject to the tax
16 imposed under the authority of paragraph two [or three] of subdivision
17 (a) of this section shall not be deemed a purchase for resale for
18 purposes of the taxes imposed by article twenty-eight of this chapter or
19 pursuant to the authority of this article.
20 (2) However, with respect to a tax imposed under the authority of
21 paragraph [three] two of subdivision (a) of this section a refund or
22 credit equal to the amount of the sale or compensating use tax imposed
23 by section eleven hundred seven of this chapter and paid on the sale or
24 use of tangible personal property which is later used by such purchaser
25 in performing a service subject to tax under such paragraph shall be
26 allowed such purchaser against the tax imposed pursuant to such para-
27 graph and collected by such person on the sale of such service if such
28 property has become a physical component part of the property upon which
29 the service is performed or has been transferred to the purchaser of the
30 service in conjunction with the performance of the service subject to
31 tax.
32 § 11. Section 11-2002 of the administrative code of the city of New
33 York is REPEALED.
34 § 12. Subchapter 3 of chapter 20 of title 11 of the administrative
35 code of the city of New York is REPEALED.
36 § 13. This act shall take effect June 1, 2009.
37 PART W
38 Section 1. Subdivision b of section 1612 of the tax law, as amended by
39 chapter 140 of the laws of 2008, clauses (D) and (F) of subparagraph
40 (ii) and subparagraph (iii) of paragraph 1 and paragraph 2 as separately
41 amended by chapter 286 of the laws of 2008 and clause (G) of subpara-
42 graph (ii) of paragraph 1 as added and clause (H) of subparagraph (ii)
43 of paragraph 1 as amended by chapter 286 of the laws of 2008, is amended
44 to read as follows:
45 b. 1. Notwithstanding section one hundred twenty-one of the state
46 finance law, on or before the twentieth day of each month, the division
47 shall pay into the state treasury, to the credit of the state lottery
48 fund created by section ninety-two-c of the state finance law, not less
49 than forty-five percent of the total amount for which tickets have been
50 sold for games defined in paragraph four of subdivision a of this
51 section during the preceding month, not less than thirty-five percent of
52 the total amount for which tickets have been sold for games defined in
53 paragraph three of subdivision a of this section during the preceding
54 month, not less than twenty percent of the total amount for which tick-
S. 60--A 101 A. 160--A
1 ets have been sold for games defined in paragraph two of subdivision a
2 of this section during the preceding month, provided however that for
3 games with a prize payout of seventy-five percent of the total amount
4 for which tickets have been sold, the division shall pay not less than
5 ten percent of sales into the state treasury and not less than twenty-
6 five percent of the total amount for which tickets have been sold for
7 games defined in paragraph one of subdivision a of this section during
8 the preceding month; and the balance of the total revenue after payout
9 for prizes for games known as "video lottery gaming," (i) less ten
10 percent of the total revenue wagered after payout for prizes to be
11 retained by the division for operation, administration, and procurement
12 purposes; (ii) less a vendor's fee the amount of which is to be paid for
13 serving as a lottery agent to the track operator of a vendor track:
14 (A) having fewer than one thousand one hundred video gaming machines,
15 at a rate of thirty-six percent for the first fifty million dollars
16 annually, twenty-nine percent for the next hundred million dollars annu-
17 ally, and twenty-six percent thereafter of the total revenue wagered at
18 the vendor track after payout for prizes pursuant to this chapter;
19 (B) having one thousand one hundred or more video gaming machines, at
20 a rate of thirty-two percent of the total revenue wagered at the vendor
21 track after payout for prizes pursuant to this chapter, except for such
22 facility located in the county of Westchester, in which case the rate
23 shall be thirty-four percent of the total revenue wagered at the vendor
24 track after payout for prizes pursuant to this chapter, for a period of
25 twenty-four months effective beginning April first, two thousand eight;
26 provided, however, that in the event that the vendor track located in
27 Westchester county completes a successful restructuring prior to March
28 thirty-first, two thousand ten, the vendor fee will be reduced to thir-
29 ty-two percent ninety days following the completion of the successful
30 restructuring. A successful restructuring is defined as a restructuring
31 of the existing debt obligations of such vendor track located in West-
32 chester county that meets the following two conditions:
33 (i) it requires no more than twenty million dollars of additional
34 equity invested in such track; and
35 (ii) results in average net interest costs of less than nine percent.
36 Notwithstanding the foregoing, the vendor fee at such track will
37 become thirty-one percent effective April first, two thousand ten and
38 remain at that level for a period equal to two times the period of time
39 (measured in days) that the vendor fee was thirty-four percent or until
40 March thirty-first, two thousand twelve, whichever is later. Notwith-
41 standing the foregoing, not later than April first, two thousand twelve,
42 the vendor fee shall become thirty-two percent and remain at that level
43 thereafter; and except for Aqueduct racetrack, in which case the vendor
44 fee shall be thirty-eight percent of the total revenue wagered at the
45 vendor track after payout for prizes pursuant to this chapter;
46 (C) notwithstanding clauses (A) and (B) of this subparagraph, when the
47 vendor track is located in an area with a population of less than one
48 million within the forty mile radius around such track, at a rate of
49 forty percent for the first fifty million dollars annually, twenty-nine
50 percent for the next hundred million dollars annually, and twenty-six
51 percent thereafter of the total revenue wagered at the vendor track
52 after payout for prizes pursuant to this chapter;
53 (D) notwithstanding clauses (A), (B) and (C) of this subparagraph,
54 when the vendor track is located within fifteen miles of a Native Ameri-
55 can class III gaming facility [or, for a period of five years effective
56 beginning April first, two thousand eight when the vendor track is
S. 60--A 102 A. 160--A
1 located within Sullivan county and within sixty miles from any gaming
2 facility in a contiguous state,] at a rate of forty-two percent of the
3 total revenue wagered at the vendor track after payout for prizes pursu-
4 ant to this chapter [unless such vendor track relocates outside the
5 specified geographic area sooner, in which case such rate shall be as
6 for all other tracks in the applicable clause of this subparagraph];
7 [(D) notwithstanding clauses (A), (B) and (C) of this subparagraph,
8 when the vendor track is within fifteen miles of a Native American
9 gaming facility, at a rate of forty-two percent of the total revenue
10 wagered at the vendor track after payout for prizes pursuant to this
11 chapter;]
12 (E) notwithstanding clauses (A), (B), (C) and (D) of this subpara-
13 graph, when a Native American class III gaming facility is established,
14 after the effective date of this subparagraph, within fifteen miles of
15 the vendor track, at a rate of forty-two percent of the total revenue
16 wagered after payout for prizes pursuant to this chapter;
17 [(F) notwithstanding clauses (A), (B), (C), (D) and (E) of this
18 subparagraph, the track operator of a vendor track shall be eligible for
19 a vendor's capital award of up to four percent of the total revenue
20 wagered at the vendor track after payout for prizes pursuant to this
21 chapter, which shall be used exclusively for capital project investments
22 to improve the facilities of the vendor track which promote or encourage
23 increased attendance at the video lottery gaming facility including, but
24 not limited to hotels, other lodging facilities, entertainment facili-
25 ties, retail facilities, dining facilities, events arenas, parking
26 garages and other improvements that enhance facility amenities; provided
27 that such capital investments shall be approved by the division, in
28 consultation with the state racing and wagering board, and that such
29 vendor track demonstrates that such capital expenditures will increase
30 patronage at such vendor track's facilities and increase the amount of
31 revenue generated to support state education programs. The annual amount
32 of such vendor's capital awards that a vendor track shall be eligible to
33 receive shall be limited to two million five hundred thousand dollars,
34 except for Aqueduct racetrack, for which there shall be no vendor's
35 capital awards. Except for tracks having less than one thousand one
36 hundred video gaming machines, each track operator shall be required to
37 co-invest an amount of capital expenditure equal to its cumulative
38 vendor's capital awards. For all tracks, except for Aqueduct racetrack,
39 the amount of any vendor's capital award that is not used during any one
40 year period may be carried over into subsequent years ending before
41 April first, two thousand thirteen. Any amount attributable to a capital
42 expenditure approved prior to April first, two thousand thirteen and
43 completed before April first, two thousand fifteen shall be eligible to
44 receive the vendor's capital award. In the event that a vendor track's
45 capital expenditures, approved by the division prior to April first, two
46 thousand thirteen and completed prior to April first, two thousand
47 fifteen, exceed the vendor track's cumulative capital award during the
48 five year period ending April first, two thousand thirteen, the vendor
49 shall continue to receive the capital award after April first, two thou-
50 sand thirteen until such approved capital expenditures are paid to the
51 vendor track subject to any required co-investment. In no event shall
52 such track facility located in Sullivan county and within sixty miles
53 from any gaming facility in a contiguous state be eligible for a
54 vendor's capital award under this section, unless it shall have moved
55 from such location or the five year period commencing on April first,
56 two thousand eight has expired, whichever comes first. Any operator of a
S. 60--A 103 A. 160--A
1 vendor track which has received a vendor's capital award, choosing to
2 divest the capital improvement toward which the award was applied, prior
3 to reaching the forty year straightline depreciation value of the
4 improvement, shall reimburse the state in amounts equal to the total of
5 any such awards. Any capital award not approved for a capital expendi-
6 ture at a video lottery gaming facility by April first, two thousand
7 thirteen shall be deposited in the state lottery fund for education aid;
8 and]
9 (E-1) for purposes of this subdivision, the term "class III gaming"
10 shall have the meaning defined in 25 U.S.C. § 2703(8).
11 (F) notwithstanding clauses (A), (B), (C), (D) and (E) of this subpar-
12 agraph, when a vendor track, is located in Sullivan county and within
13 sixty miles from any gaming facility in a contiguous state such vendor
14 fee shall, for a period of five years commencing April first, two thou-
15 sand eight, be at a rate of forty-two percent of the total revenue
16 wagered at the vendor track after payout for prizes pursuant to this
17 chapter, after which time such rate shall be as for all tracks in clause
18 (C) of this subparagraph.
19 [(G) For purposes of this subdivision, the term "class III gaming"
20 shall have the meaning defined in 25 U.S.C. § 2703(8).]
21 (G) notwithstanding any other provisions of this section, when a relo-
22 cated vendor track at which a qualified capital investment has been made
23 and no fewer than two thousand full-time, permanent employees have been
24 newly hired, is located in Sullivan county and is within sixty miles
25 from any gaming facility in a contiguous state, then for a period of
26 forty years the division shall pay into the state treasury, to the cred-
27 it of the state lottery fund created by section ninety-two-c of the
28 state finance law the greater of (i) twenty-five percent of total reven-
29 ue after payout for prizes for "video lottery games" or (ii) for the
30 first eight years of operation thirty-eight million dollars, and begin-
31 ning in the ninth year of operation such amount shall increase annually
32 by the lesser of the increase in the consumer price index or two percent
33 plus the division shall retain an amount equal to all actual expenses
34 related to operations, administration and procurement of the video
35 lottery terminal operation at the relocated vendor track, provided,
36 however, such amount retained by the division shall not exceed seven
37 percent of total revenue after payout of prizes. In addition, in the
38 event the division makes a payment pursuant to subclause (i) of this
39 clause, the division shall pay to the credit of the state lottery fund
40 created by section ninety-two-c of the state finance law 11.11 percent
41 of the amount by which total revenue after payout for prizes exceeds two
42 hundred fifteen million dollars, but in no event shall such payment
43 exceed five million dollars.
44 The balance shall be paid as a vendor's fee to the track operator of
45 the relocated vendor track for serving as a lottery agent under this
46 chapter.
47 Provided, however, that in the case of a relocated vendor track with a
48 qualified capital investment, if at any time after July first, two thou-
49 sand ten the vendor track experiences an employment shortfall, then the
50 recapture amount shall apply, for only such period as the shortfall
51 exists.
52 For the purposes of this section "qualified capital investment" shall
53 mean an investment of a minimum of one billion dollars as reflected by
54 audited financial statements of which not less than three hundred
55 million dollars shall be comprised of equity and/or mezzanine financing
56 as an initial investment in a county where twelve percent of the popu-
S. 60--A 104 A. 160--A
1 lation is below the federal poverty level as measured by the most recent
2 Bureau of Census Statistics prior to the qualified capital investment
3 commencing that results in the construction, development or improvement
4 of at least one eighteen hole golf course, and the construction and
5 issuance of certificates of occupancy for hotels, lodging, convention
6 centers, spas, dining, retail and entertainment venues, parking garages
7 and other capital improvements at or adjacent to the licensed video
8 gaming facility or licensed vendor track which promote or encourage
9 increased attendance at such facilities.
10 For the purposes of this section, "full-time, permanent employee"
11 shall mean an employee who has worked at the vendor track or related and
12 adjacent facilities for a minimum of thirty-five hours per week for not
13 less than four consecutive weeks and who is entitled to receive the
14 usual and customary fringe benefits extended to other employees with
15 comparable rank and duties; or two part-time employees who have worked
16 at the vendor track or related and adjacent facilities for a combined
17 minimum of thirty-five hours per week for not less than four consecutive
18 weeks and who are entitled to receive the usual and customary fringe
19 benefits extended to other employees with comparable rank and duties.
20 For the purpose of this section "employment goal" shall mean two thou-
21 sand full-time permanent employees.
22 For the purpose of this section "employment shortfall" shall mean a
23 level of employment that falls below the employment goal, as certified
24 annually by vendor's certified accountants and the chairman of the
25 empire state development corporation.
26 For the purposes of this section "recapture amount" shall mean the
27 difference between the amount of the vendor's fee paid to a vendor track
28 with a qualified capital investment, and the vendor fee otherwise paya-
29 ble to a vendor track pursuant to clause (F) of this subparagraph, that
30 is reimbursable by the vendor track to the division for payment into the
31 state treasury, to the credit of the state lottery fund created by
32 section ninety-two-c of the state finance law, due to an employment
33 shortfall pursuant to the following schedule only for the period of the
34 employment shortfall:
35 (i) sixty-six percent of the recapture amount if the employment short-
36 fall is greater than fifty percent of the employment goal;
37 (ii) sixty percent of the recapture amount if the employment shortfall
38 is greater than forty percent of the employment goal;
39 (iii) forty-five percent of the recapture amount if the employment
40 shortfall is greater than thirty percent of the employment goal;
41 (iv) twenty percent of the recapture amount if the employment short-
42 fall is greater than twenty percent of the employment goal;
43 (v) ten percent of the recapture amount if the employment shortfall is
44 greater than ten percent of the employment goal.
45 (H) notwithstanding clauses (A), (B), (C), (D), (E), (F) and (G) of
46 this subparagraph, the track operator of a vendor track shall be eligi-
47 ble for a vendor's capital award of up to four percent of the total
48 revenue wagered at the vendor track after payout for prizes pursuant to
49 this chapter, which shall be used exclusively for capital project
50 investments to improve the facilities of the vendor track which promote
51 or encourage increased attendance at the video lottery gaming facility
52 including, but not limited to hotels, other lodging facilities, enter-
53 tainment facilities, retail facilities, dining facilities, events
54 arenas, parking garages and other improvements that enhance facility
55 amenities; provided that such capital investments shall be approved by
56 the division, in consultation with the state racing and wagering board,
S. 60--A 105 A. 160--A
1 and that such vendor track demonstrates that such capital expenditures
2 will increase patronage at such vendor track's facilities and increase
3 the amount of revenue generated to support state education programs. The
4 annual amount of such vendor's capital awards that a vendor track shall
5 be eligible to receive shall be limited to two million five hundred
6 thousand dollars, except for Aqueduct racetrack, for which there shall
7 be no vendor's capital awards. Except for tracks having less than one
8 thousand one hundred video gaming machines, each track operator shall be
9 required to co-invest an amount of capital expenditure equal to its
10 cumulative vendor's capital award. For all tracks, except for Aqueduct
11 racetrack, the amount of any vendor's capital award that is not used
12 during any one year period may be carried over into subsequent years
13 ending before April first, two thousand thirteen. Any amount attribut-
14 able to a capital expenditure approved prior to April first, two thou-
15 sand thirteen and completed before April first, two thousand fifteen
16 shall be eligible to receive the vendor's capital award. In the event
17 that a vendor track's capital expenditures, approved by the division
18 prior to April first, two thousand thirteen and completed prior to April
19 first, two thousand fifteen, exceed the vendor track's cumulative capi-
20 tal award during the five year period ending April first, two thousand
21 thirteen, the vendor shall continue to receive the capital award after
22 April first, two thousand thirteen until such approved capital expendi-
23 tures are paid to the vendor track subject to any required co-invest-
24 ment. In no event shall any vendor track that receives a vendor fee
25 pursuant to clause (F) or (G) of this [paragraph] subparagraph be eligi-
26 ble for a vendor's capital award under this section. Any operator of a
27 vendor track which has received a vendor's capital award, choosing to
28 divest the capital improvement toward which the award was applied, prior
29 to [reaching the forty year straightline depreciation value of the
30 improvement] the full depreciation of the capital improvement in accord-
31 ance with generally accepted accounting principles, shall reimburse the
32 state in amounts equal to the total of any such awards. Any capital
33 award not approved for a capital expenditure at a video lottery gaming
34 facility by April first, two thousand thirteen shall be deposited into
35 the state lottery fund for education aid; and
36 (iii) less an additional vendor's marketing allowance at a rate of ten
37 percent for the first one hundred million dollars annually and eight
38 percent thereafter of the total revenue wagered at the vendor track
39 after payout for prizes to be used by the vendor track for the marketing
40 and promotion and associated costs of its video lottery gaming oper-
41 ations and pari-mutuel horse racing operations, as long as any such
42 costs associated with pari-mutuel horse racing operations simultaneously
43 encourage increased attendance at such vendor's video lottery gaming
44 facilities, consistent with the customary manner of marketing comparable
45 operations in the industry and subject to the overall supervision of the
46 division; provided, however, that the additional vendor's marketing
47 allowance shall not exceed eight percent in any year for any operator of
48 a racetrack located in the county of Westchester or Queens; provided,
49 however, a vendor track that receives a vendor fee pursuant to clause
50 (G) of [this] subparagraph (ii) of this paragraph shall not receive the
51 additional vendor's marketing allowance. In establishing the vendor fee,
52 the division shall ensure the maximum lottery support for education
53 while also ensuring the effective implementation of section sixteen
54 hundred seventeen-a of this article through the provision of reasonable
55 reimbursements and compensation to vendor tracks for participation in
56 such program. Within twenty days after any award of lottery prizes, the
S. 60--A 106 A. 160--A
1 division shall pay into the state treasury, to the credit of the state
2 lottery fund, the balance of all moneys received from the sale of all
3 tickets for the lottery in which such prizes were awarded remaining
4 after provision for the payment of prizes as herein provided. Any reven-
5 ues derived from the sale of advertising on lottery tickets shall be
6 deposited in the state lottery fund.
7 2. As consideration for the operation of a video lottery gaming facil-
8 ity, the division, shall cause the investment in the racing industry of
9 a portion of the vendor fee received pursuant to paragraph one of this
10 subdivision in the manner set forth in this subdivision. With the excep-
11 tion of Aqueduct racetrack, each such track shall dedicate a portion of
12 its vendor fees, received pursuant to clause (A), (B), (C), (D), (E),
13 (F), or (G) of subparagraph (ii) of paragraph one of this subdivision,
14 solely for the purpose of enhancing purses at such track, in an amount
15 equal to eight and three-quarters percent of the total revenue wagered
16 at the vendor track after pay out for prizes. In addition, with the
17 exception of Aqueduct racetrack, one and one-quarter percent of total
18 revenue wagered at the vendor track after pay out for prizes, received
19 pursuant to clause (A), (B), (C), (D), (E), (F), or (G) of subparagraph
20 (ii) of paragraph one of this subdivision, shall be distributed to the
21 appropriate breeding fund for the manner of racing conducted by such
22 track.
23 Provided, further, that nothing in this paragraph shall prevent each
24 track from entering into an agreement, not to exceed five years, with
25 the organization authorized to represent its horsemen to increase or
26 decrease the portion of its vendor fee dedicated to enhancing purses at
27 such track during the years of participation by such track, or to race
28 fewer dates than required herein.
29 3. Nothing in paragraph two of this subdivision shall affect any
30 agreement in effect on or before the effective date of this paragraph.
31 § 2. Subdivisions a and b of section 1617-a of the tax law, as amended
32 by section 2 of part Z3 of chapter 62 of the laws of 2003 and paragraph
33 3 of subdivision a as amended by chapter 18 of the laws of 2008, are
34 amended to read as follows:
35 a. The division of the lottery is hereby authorized to license, pursu-
36 ant to rules and regulations to be promulgated by the division of the
37 lottery, the operation of video lottery gaming at Aqueduct, Monticello,
38 Yonkers, Finger Lakes, and Vernon Downs racetracks, or at any other
39 racetrack licensed pursuant to article three of the racing, pari-mutuel
40 wagering and breeding law that are located in a county or counties in
41 which video lottery gaming has been authorized pursuant to local law,
42 excluding the licensed racetrack commonly referred to in article three
43 of the racing, pari-mutuel wagering and breeding law as the "New York
44 state exposition" held in Onondaga county and the racetracks of the
45 non-profit racing association known as Belmont Park racetrack and the
46 Saratoga thoroughbred racetrack. Such rules and regulations shall
47 provide, as a condition of licensure, that racetracks to be licensed are
48 certified to be in compliance with all state and local fire and safety
49 codes, that the division is afforded adequate space, infrastructure, and
50 amenities consistent with industry standards for such video gaming oper-
51 ations as found at racetracks in other states, that racetrack employees
52 involved in the operation of video lottery gaming pursuant to this
53 section are licensed by the racing and wagering board, and such other
54 terms and conditions of licensure as the division may establish.
55 Notwithstanding any inconsistent provision of law, video lottery gaming
56 at a racetrack pursuant to this section shall be deemed an approved
S. 60--A 107 A. 160--A
1 activity for such racetrack under the relevant city, county, town, or
2 village land use or zoning ordinances, rules, or regulations. No [race-
3 track] entity licensed by the division operating video lottery gaming
4 pursuant to this section may house such gaming activity in a structure
5 deemed or approved by the division as "temporary" for a duration of
6 longer than eighteen-months. Nothing in this section shall prohibit the
7 division from licensing an entity to operate video lottery gaming at an
8 existing racetrack as authorized in this subdivision whether or not a
9 different entity is licensed to conduct horse racing and pari-mutuel
10 wagering at such racetrack pursuant to article two or three of the
11 racing, pari-mutuel wagering and breeding law.
12 The division, in consultation with the racing and wagering board,
13 shall establish standards for approval of the temporary and permanent
14 physical layout and construction of any facility or building devoted to
15 a video lottery gaming operation. In reviewing such application for the
16 construction or reconstruction of facilities related or devoted to the
17 operation or housing of video lottery gaming operations, the division,
18 in consultation with the racing and wagering board, shall ensure that
19 such facility:
20 (1) possesses superior consumer amenities and conveniences to encour-
21 age and attract the patronage of tourists and other visitors from across
22 the region, state, and nation.
23 (2) has adequate motor vehicle parking facilities to satisfy patron
24 requirements.
25 (3) has a physical layout and location that facilitates access to and
26 from the horse racing track portion of such facility to encourage patro-
27 nage of live horse racing events that are conducted at such track.
28 b. [Video] The hours of operation of video lottery gaming shall only
29 be permitted [for no more than sixteen consecutive hours per day and on
30 no day shall such operation be conducted past 2:00 a.m] as prescribed by
31 the division of the lottery.
32 § 3. Section 1617-a of the tax law is amended by adding a new subdivi-
33 sion e to read as follows:
34 e. The division shall not approve the construction or alteration of
35 any facility or building devoted to the operation or housing of video
36 lottery gaming until the person or entity selected to operate such video
37 lottery gaming shall have submitted to the division a statement of the
38 location of the proposed facility or building, together with a plan of
39 such racetrack, and plans of all existing buildings, seating stands and
40 other structures on the grounds of such racetrack, in such form as the
41 division may prescribe, and such plans shall have been approved by the
42 division. The division, at the expense of the applicant, may order such
43 engineering examination thereof as the division may deem necessary.
44 Such construction or alteration may be made only with the approval of
45 the division and after examination and inspection of the plans thereof
46 and the issuance of a permit therefor by the division.
47 § 4. Section 4 of part C of chapter 383 of the laws of 2001, amending
48 the tax law and other laws relating to authorizing the division of the
49 lottery to conduct a pilot program involving the operation of video
50 lottery terminals at certain racetracks, as amended by chapter 140 of
51 the laws of 2008, is amended to read as follows:
52 § 4. This act shall take effect immediately[; provided, however, that
53 the provisions of this act shall expire and be deemed repealed December
54 31, 2033].
55 § 5. Section 4 of part C of chapter 383 of the laws of 2001, amending
56 the tax law and other laws relating to authorizing the division of the
S. 60--A 108 A. 160--A
1 lottery to conduct a pilot program involving the operation of video
2 lottery terminals at certain racetracks, as amended by chapter 286 of
3 the laws of 2008, is amended to read as follows:
4 § 4. This act shall take effect immediately[; provided, however, that
5 the provisions of this act shall expire and be deemed repealed December
6 31, 2050].
7 § 6. Subdivision a of section 1617-a of the tax law, as amended by
8 chapter 140 of the laws of 2008, is REPEALED.
9 § 7. Subdivision a of section 1617-a of the tax law, as amended by
10 chapter 286 of the laws of 2008, is REPEALED.
11 § 8. This act shall take effect immediately and shall be deemed to
12 have been in full force and effect on and after April 1, 2008.
13 PART X
14 Section 1. Section 420 of the tax law is amended by adding a new
15 subdivision 17 to read as follows:
16 17. "Flavored malt beverages" means alcoholic products manufactured
17 from malt that also contain liquor and that contain more than one-half
18 of one percent but not more than twenty-four percent of alcohol by
19 volume.
20 § 2. Subdivision 3 of section 420 of the tax law, as amended by chap-
21 ter 94 of the laws of 1934, is amended to read as follows:
22 3. "Alcoholic beverages" mean and include beers, flavored malt bever-
23 ages, wines or liquors.
24 § 3. Subdivision 5 of section 420 of the tax law, as amended by chap-
25 ter 237 of the laws of 1956, is amended to read as follows:
26 5. "Beers" mean and include all alcoholic beer, lager beer, ale,
27 porter, and stout, and all other fermented beverages of any name or
28 description manufactured from malt, wholly or in part, or from any
29 substitute therefor containing one-half of one per centum, or more, of
30 alcohol by volume, but not including any flavored malt beverages.
31 § 4. Subdivision 7 of section 420 of the tax law, as amended by chap-
32 ter 80 of the laws of 1935, is amended to read as follows:
33 7. "Liquors" mean and include any and all distilled or rectified spir-
34 its, alcohol, brandy, cordial (whether the base therefor be wine or
35 liquor), whiskey, rum, gin and all other distilled beverages containing
36 alcohol, including all dilutions and mixtures of one or more of the
37 foregoing, and also mean and include any alcoholic liquids which would
38 be wines or flavored malt beverages if the alcoholic content thereof
39 were not more than twenty-four per centum by volume.
40 § 5. Subdivision 14 of section 420 of the tax law, as amended by chap-
41 ter 508 of the laws of 1993, is amended to read as follows:
42 14. "Noncommercial importer" means a person other than a distributor
43 who imports or causes to be imported into this state beers, flavored
44 malt beverages, or wines, except that such person shall not be a noncom-
45 mercial importer where such person imports or causes to be imported into
46 this state such alcoholic beverages in the quantities and under the
47 conditions provided by subdivision four of section four hundred twenty-
48 four of this article. Such term is inapplicable with respect to liquors.
49 § 6. Subdivision 1 of section 424 of the tax law is amended by adding
50 a new paragraph (e-1) to read as follows:
51 (e-1) Two dollars and fifty-four cents per gallon upon flavored malt
52 beverages;
S. 60--A 109 A. 160--A
1 § 7. The opening paragraph of paragraph (g) of subdivision 1 of
2 section 424 of the tax law, as amended by chapter 508 of the laws of
3 1993, is amended to read as follows:
4 For purposes of this chapter, it is presumed that liquors are
5 possessed for the purpose of sale in this state if the quantity of
6 liquors possessed in this state, imported or caused to be imported into
7 this state or produced, distilled, manufactured, compounded, mixed or
8 fermented in this state exceeds ninety liters. Such presumption may be
9 rebutted by the introduction of substantial evidence to the contrary. In
10 any case where the quantity of alcoholic beverages taxable pursuant to
11 this article is a fractional part of one liter (or one gallon in the
12 case of beers, flavored malt beverages, and wines) or an amount greater
13 than a whole multiple of liters (or gallons in the case of beers,
14 flavored malt beverages and wines), the amount of tax levied and imposed
15 on such fractional part of one liter (or one gallon in the case of
16 beers, flavored malt beverages, and wines), or fractional part of a
17 liter (or gallon) in excess of a whole multiple of liters or gallons
18 shall be such fractional part of the rate imposed by paragraphs (a)
19 through (f) of this subdivision.
20 § 8. Section 425 of the tax law, as amended by chapter 508 of the laws
21 of 1993, is amended to read as follows:
22 § 425. Special provision as to imposition of taxes on certain alcohol-
23 ic beverages. If a person shall receive any alcoholic beverages from the
24 distributor with respect thereto, under such circumstances so as to
25 preclude the collection of the taxes under this article, because this
26 state was without power to impose such taxes under this article against
27 such distributor by reason of the constitution or the law of the United
28 States enacted pursuant thereto or the constitution or laws of this
29 state, and such person shall thereafter sell or use any such alcoholic
30 beverages in such manner and under such circumstances as may subject the
31 same to the taxing power of this state with respect to any sale or use
32 thereof, such person shall be liable for the tax imposed by section four
33 hundred twenty-four of this article with respect to such sale or use,
34 and shall make the same reports and returns, pay the same taxes and be
35 subject to the other applicable provisions of this article relating to
36 distributors, except that with respect to beers, flavored malt beverag-
37 es, and wines such a person shall not be subject to the provisions of
38 sections four hundred twenty-one and four hundred twenty-two of this
39 article if such person does not offer such alcoholic beverages for sale
40 or use such alcoholic beverages for any commercial purpose. Provided,
41 further, that if the taxing power of this state does not extend to the
42 imposition of such taxes on, and the requirement of payment of such
43 taxes by, such person selling or using such beverages, then such person
44 shall be required to collect such taxes from its purchaser on the sale
45 of such beverages and to pay over such taxes to the commissioner. In
46 such event, the same reports and returns relating to distributors, along
47 with remittance, shall be required by such person and all the other
48 provisions of this article relating to distributors shall apply. If such
49 taxes are not so collected, then such purchaser shall, along with such
50 person, be liable for such taxes.
51 § 9. Section 425-a of the tax law, as added by chapter 508 of the laws
52 of 1993, is amended to read as follows:
53 § 425-a. Presumption of taxability. For the purpose of the proper
54 administration of the taxes imposed by this article and to prevent
55 evasion thereof, it shall be presumed with respect to this chapter that
56 all alcoholic beverages possessed or found in this state are subject to
S. 60--A 110 A. 160--A
1 the taxes imposed by this article until the contrary is established by
2 substantial evidence. Except with respect to a purchase at retail of
3 beers, flavored malt beverages, or wines and a purchase at retail of
4 ninety liters or less of liquors, no person shall purchase alcoholic
5 beverages in this state unless the taxes imposed by this article with
6 respect to such beverages have been assumed by a distributor registered
7 under this article or paid by such distributor pursuant to and in
8 accordance with the manner provided herein and evidenced in accordance
9 with the manner provided herein. In the case of liquors, such taxes
10 shall be assumed by a distributor in accordance with the invoice
11 required, and the certification of tax payment included therein, under
12 section four hundred twenty-seven of this article; in the case of other
13 alcoholic beverages, the taxes shall be assumed by such distributor
14 pursuant to and in accordance with the rules or regulations of the
15 department.
16 § 10. Section 426 of the tax law, as amended by chapter 891 of the
17 laws of 1986, is amended to read as follows:
18 § 426. Records to be kept by brand owners, distributors, owners and
19 others. Every brand owner, distributor, owner or other person shall
20 keep a complete and accurate record of all purchases and sales or other
21 dispositions of alcoholic beverages, and a complete and accurate record
22 of the number of gallons of beers, flavored malt beverages, and wines
23 produced, manufactured, brewed or fermented and liters of all other
24 alcoholic beverages produced, distilled, manufactured, brewed,
25 compounded, mixed or fermented. Such records shall be in such form and
26 contain such other information as the [tax commission] commissioner
27 shall prescribe. [Said commission] The commissioner, by rule or regu-
28 lation, also may require the delivery of statements to purchasers of
29 alcoholic beverages, and prescribe the matters to be contained therein.
30 Such records and statements, unless required by the [tax commission]
31 commissioner to be preserved for a longer period, shall be preserved for
32 a period of [one year] three years and shall be offered for inspection
33 at any time upon oral or written demand by the commissioner [of taxation
34 and finance] or his or her duly authorized agents, and every such
35 distributor, brand owner, owner or other person shall make such reports
36 to the department [of taxation and finance] as may be required by the
37 [tax commission] commissioner. Nothing in this section contained shall
38 be construed to require the keeping of a record of the purchase or
39 disposition of alcoholic beverages by a consumer thereof, except by a
40 person who uses the same for commercial purposes, or of the sale of
41 alcoholic beverages at retail.
42 § 11. Section 429 of the tax law, as amended by chapter 433 of the
43 laws of 1978, is amended to read as follows:
44 § 429. Payment of tax; returns. 1. Every distributor, noncommercial
45 importer or other person shall, on or before the twentieth day of each
46 month, file with the department [of taxation and finance] a return, on
47 forms to be prescribed by the [tax commission] commissioner and
48 furnished by such department, stating separately the number of gallons,
49 or lesser quantity, of beers, flavored malt beverages, and wines, and
50 the number of liters, or lesser quantity, of [wines and] liquors sold or
51 used by such distributor, noncommercial importer or other person in this
52 state during the preceding calendar month, except that the [tax commis-
53 sion] commissioner may, if [it] he or she deems it necessary in order to
54 insure the payment of the tax imposed by this article, require returns
55 to be made at such times and covering such periods as [it] he or she may
56 deem necessary. Such return shall contain such further information as
S. 60--A 111 A. 160--A
1 the [tax commission] commissioner shall require. The fact that the name
2 of the distributor, noncommercial importer or other person is signed to
3 a filed return shall be prima facie evidence for all purposes that the
4 return was actually signed by such distributor, noncommercial importer
5 or other person.
6 2. Each such distributor, noncommercial importer or other person shall
7 pay to such department with the filing of such return, the tax imposed
8 by this article, on each gallon, or lesser quantity, of beers, flavored
9 malt beverages, and wines and on each liter, or lesser quantity of all
10 other alcoholic beverages sold or used by such distributor, noncommer-
11 cial importer or other person in this state, as so reported, during the
12 period covered by such return, except that, where a distributor has
13 purchased alcoholic beverages prior to the expiration of the period
14 covered by the return, upon which the taxes imposed by this article have
15 been or are required to be paid by another distributor, a credit shall
16 be allowed for the amount of such taxes.
17 3. All alcoholic beverages which have come into the possession of a
18 distributor shall be deemed to have been sold or used by such distribu-
19 tor unless it shall be proved to the satisfaction of the [tax commis-
20 sion] commissioner that such alcoholic beverages have not been sold or
21 used.
22 4. A distributor entitled to a refund under the provisions of section
23 four hundred thirty-four of this [chapter] article, in lieu of such
24 refund, may take credit therefor on a return filed pursuant to this
25 section, unless the [tax commission] commissioner shall withdraw such
26 privilege.
27 § 12. Subdivision 1 of section 445 of the tax law, as amended by chap-
28 ter 433 of the laws of 1978, is amended to read as follows:
29 1. Any city in this state having a population of one million or more,
30 acting through its local legislative body, is hereby authorized and
31 empowered to adopt and amend local laws imposing in any such city excise
32 taxes on a distributor and a noncommercial importer at the following
33 rates:
34 (a) Twelve cents per gallon upon beers [and];
35 (b) Twenty-six and four-tenths cents per liter on the liquors
36 described in paragraph (f) of subdivision one of section four hundred
37 twenty-four of this article; and
38 (c) Thirty-nine cents per gallon upon flavored malt beverages, when
39 sold or used in such city.
40 Such local law shall provide that if prior to the date upon which the
41 taxes go into effect, a contract of sale of any beer or other alcoholic
42 beverages described above was made, and delivery thereof pursuant to
43 such contract is made within the city imposing such taxes on or after
44 the effective date thereof, the vendor shall be deemed a distributor,
45 and such beer and other alcoholic beverages shall be deemed to be sold,
46 and shall be subject to the tax at the time of such delivery. The city
47 has the option of imposing tax on beers and liquors or on beers,
48 liquors, and flavored malt beverages.
49 § 13. (a) If a contract for the sale of flavored malt beverages was
50 entered into prior to April 1, 2009 and delivery under that contract is
51 made within the state on or after April 1, 2009, the flavored malt
52 beverages sold under that contract will be subject to tax under article
53 18 of the tax law, as amended by this act, at the time of delivery.
54 (b) In order to subject flavored malt beverages in this state on April
55 1, 2009 to the increased taxes imposed by section six of this act, a
56 special floor tax is imposed on each wholesaler or retailer (as defined
S. 60--A 112 A. 160--A
1 in the alcoholic beverage control law) or other sellers of flavored malt
2 beverages, other than those registered as distributors under article 18
3 of the tax law, at the rate of two dollars and forty-three cents per
4 gallon on all flavored malt beverages in the possession or under the
5 control on April 1, 2009 of those wholesalers, retailers and other sell-
6 ers of flavored malt beverages for purposes of sale in the state. Addi-
7 tionally, any person who is a distributor or manufacturer under article
8 18 of the tax law is subject to this special floor tax on any flavored
9 malt beverages in his or her possession or under his or her control on
10 which the tax under article 18 of the tax law was already imposed at the
11 beer rate prior to April 1, 2009. The first 25 gallons of all flavored
12 malt beverages on April 1, 2009 in the possession or under the control
13 of any manufacturer, wholesaler, retailer, distributor or any other
14 seller of flavored malt beverages are exempt from this floor tax. This
15 floor tax is due and payable to the commissioner of taxation and finance
16 on or before June 22, 2009.
17 (c) If the city of New York imposes tax on flavored malt beverages
18 effective April 1, 2009, under the authority of subdivision 1 of section
19 445 of the tax law, as amended by section twelve of this act, a special
20 floor tax is imposed on each wholesaler or retailer, as defined in the
21 alcoholic beverage control law, other than those registered as distribu-
22 tors under article 18 of the tax law, at the rate of twenty-seven cents
23 per gallon on all flavored malt beverages in the possession or under the
24 control on April 1, 2009 of wholesalers, retailers, or all other sellers
25 of flavored malt beverages, for purposes of sale in that city and the
26 floor tax authorized by subdivision 2 of section 445 of the tax law does
27 not apply. Additionally, any person who is a distributor or manufacturer
28 under article 18 of the tax law is subject to the same special floor tax
29 on any flavored malt beverages in his or her possession or under his or
30 her control on which the tax under article 18 of the tax law was already
31 imposed at the beer rate prior to April 1, 2009. The special city floor
32 tax authorized by this subdivision must be administered, collected and
33 enforced jointly with, and under the same terms as, the special floor
34 tax imposed by subdivision (b) of this section with respect to the
35 increased taxes imposed by section six of this act. If such city imposes
36 a tax on flavored malt beverages that is not effective on April 1, 2009,
37 the provisions of subdivision 2 of section 445 of the tax law do not
38 apply to the increased taxes authorized by section twelve of this act.
39 (d) Except as provided in this section, all the provisions of articles
40 18 and 37 of the tax law will apply to taxes imposed by this section.
41 (e) The commissioner of taxation and finance is authorized to
42 prescribe any terms and conditions such commissioner deems advisable and
43 require any reports such commissioner deems necessary to effectuate the
44 provisions of this section.
45 (f) The commissioner of taxation and finance may request from the
46 state liquor authority, and the state liquor authority is authorized and
47 directed to provide, any cooperation and assistance, including data,
48 that will enable such commissioner to carry out the imposition of the
49 flavored malt beverages tax rate and the implementation of the floor
50 tax.
51 § 14. Subdivision 12-c of section 3 of the alcoholic beverage control
52 law, as renumbered by chapter 366 of the laws of 1992, is renumbered
53 subdivision 12-d and a new subdivision 12-c is added to read as follows:
54 12-c. "Flavored malt beverage" means and includes any fermented bever-
55 ages of any name or description manufactured from malt, or from any
56 substitute therefor, containing flavors and other ingredients derived
S. 60--A 113 A. 160--A
1 from liquor or spirits provided that no more than forty-nine percent of
2 the overall alcohol content of the finished product may be derived from
3 the addition of said flavors and other ingredients. For purposes of this
4 chapter, "flavored malt beverages" shall be considered "beer" and may be
5 bought, stored and sold by any person licensed pursuant to this chapter
6 with a license that already contains the privilege to buy, sell or store
7 beer.
8 § 15. This act shall take effect April 1, 2009.
9 PART Y
10 Section 1. Paragraph (a) of subdivision 1 of section 1003 of the
11 racing, pari-mutuel wagering and breeding law, as amended by chapter 18
12 of the laws of 2008, is amended to read as follows:
13 (a) Any racing association or corporation or regional off-track
14 betting corporation, authorized to conduct pari-mutuel wagering under
15 this chapter, desiring to display the simulcast of horse races on which
16 pari-mutuel betting shall be permitted in the manner and subject to the
17 conditions provided for in this article may apply to the board for a
18 license so to do. Applications for licenses shall be in such form as may
19 be prescribed by the board and shall contain such information or other
20 material or evidence as the board may require. No license shall be
21 issued by the board authorizing the simulcast transmission of thorough-
22 bred races from a track located in Suffolk county. The fee for such
23 licenses shall be five hundred dollars per simulcast facility per year
24 payable by the licensee to the board for deposit into the general fund.
25 Except as provided herein, the board shall not approve any application
26 to conduct simulcasting into individual or group residences, homes or
27 other areas for the purposes of or in connection with pari-mutuel wager-
28 ing. The board may approve simulcasting into residences, homes or other
29 areas to be conducted jointly by one or more regional off-track betting
30 corporations and one or more of the following: a franchised corporation,
31 thoroughbred racing corporation or a harness racing corporation or asso-
32 ciation; provided (i) the simulcasting consists only of those races on
33 which pari-mutuel betting is authorized by this chapter at one or more
34 simulcast facilities for each of the contracting off-track betting
35 corporations which shall include wagers made in accordance with section
36 one thousand fifteen, one thousand sixteen and one thousand seventeen of
37 this [chapter] article; provided further that the contract provisions or
38 other simulcast arrangements for such simulcast facility shall be no
39 less favorable than those in effect on January first, two thousand five;
40 (ii) that each off-track betting corporation having within its geograph-
41 ic boundaries such residences, homes or other areas technically capable
42 of receiving the simulcast signal shall be a contracting party; (iii)
43 the distribution of revenues shall be subject to contractual agreement
44 of the parties except that statutory payments to non-contracting
45 parties, if any, may not be reduced; provided, however, that nothing
46 herein to the contrary shall prevent a track from televising its races
47 on an irregular basis primarily for promotional or marketing purposes as
48 found by the board. For purposes of this paragraph, the provisions of
49 section one thousand thirteen of this article shall not apply. Any
50 agreement authorizing an in-home simulcasting experiment commencing
51 prior to May fifteenth, nineteen hundred ninety-five, may, and all its
52 terms, be extended until June thirtieth, two thousand [nine] ten;
53 provided, however, that any party to such agreement may elect to termi-
54 nate such agreement upon conveying written notice to all other parties
S. 60--A 114 A. 160--A
1 of such agreement at least forty-five days prior to the effective date
2 of the termination, via registered mail. Any party to an agreement
3 receiving such notice of an intent to terminate, may request the board
4 to mediate between the parties new terms and conditions in a replacement
5 agreement between the parties as will permit continuation of an in-home
6 experiment until June thirtieth, two thousand [nine] ten; and (iv) no
7 in-home simulcasting in the thoroughbred special betting district shall
8 occur without the approval of the regional thoroughbred track.
9 § 2. Subparagraph (iii) of paragraph d of subdivision 3 of section
10 1007 of the racing, pari-mutuel wagering and breeding law, as amended by
11 chapter 18 of the laws of 2008, is amended to read as follows:
12 (iii) Of the sums retained by a receiving track located in Westchester
13 county on races received from a franchised corporation, for the period
14 commencing January first, two thousand eight and continuing through June
15 thirtieth, two thousand [nine] ten, the amount used exclusively for
16 purses to be awarded at races conducted by such receiving track shall be
17 computed as follows: of the sums so retained, two and one-half percent
18 of the total pools. Such amount shall be increased or decreased in the
19 amount of fifty percent of the difference in total commissions deter-
20 mined by comparing the total commissions available after July twenty-
21 first, nineteen hundred ninety-five to the total commissions that would
22 have been available to such track prior to July twenty-first, nineteen
23 hundred ninety-five.
24 § 3. The opening paragraph of subdivision 1 of section 1014 of the
25 racing, pari-mutuel wagering and breeding law, as amended by chapter 18
26 of the laws of 2008, is amended to read as follows:
27 The provisions of this section shall govern the simulcasting of races
28 conducted at thoroughbred tracks located in another state or country on
29 any day during which a franchised corporation is conducting a race meet-
30 ing in Saratoga county at Saratoga thoroughbred racetrack until June
31 thirtieth, two thousand [nine] ten and on any day regardless of whether
32 or not a franchised corporation is conducting a race meeting in Saratoga
33 county at Saratoga thoroughbred racetrack after June thirtieth, two
34 thousand [nine] ten. On any day on which a franchised corporation has
35 not scheduled a racing program but a thoroughbred racing corporation
36 located within the state is conducting racing, every off-track betting
37 corporation branch office and every simulcasting facility licensed in
38 accordance with section one thousand seven (that have entered into a
39 written agreement with such facility's representative horsemen's organ-
40 ization, as approved by the board), one thousand eight, or one thousand
41 nine of this article shall be authorized to accept wagers and display
42 the live simulcast signal from thoroughbred tracks located in another
43 state or foreign country subject to the following provisions:
44 § 4. Subdivision 1 of section 1015 of the racing, pari-mutuel wagering
45 and breeding law, as amended by chapter 18 of the laws of 2008, is
46 amended to read as follows:
47 1. The provisions of this section shall govern the simulcasting of
48 races conducted at harness tracks located in another state or country
49 during the period July first, nineteen hundred ninety-four through June
50 thirtieth, two thousand [nine] ten. This section shall supersede all
51 inconsistent provisions of this chapter.
52 § 5. The opening paragraph of subdivision 1 of section 1016 of the
53 racing, pari-mutuel wagering and breeding law, as amended by chapter 18
54 of the laws of 2008, is amended to read as follows:
55 The provisions of this section shall govern the simulcasting of races
56 conducted at thoroughbred tracks located in another state or country on
S. 60--A 115 A. 160--A
1 any day during which a franchised corporation is not conducting a race
2 meeting in Saratoga county at Saratoga thoroughbred racetrack until June
3 thirtieth, two thousand [nine] ten. Every off-track betting corporation
4 branch office and every simulcasting facility licensed in accordance
5 with section one thousand seven that have entered into a written agree-
6 ment with such facility's representative horsemen's organization as
7 approved by the board, one thousand eight or one thousand nine of this
8 article shall be authorized to accept wagers and display the live full-
9 card simulcast signal of thoroughbred tracks (which may include quarter
10 horse or mixed meetings provided that all such wagering on such races
11 shall be construed to be thoroughbred races) located in another state or
12 foreign country, subject to the following provisions; provided, however,
13 no such written agreement shall be required of a franchised corporation
14 licensed in accordance with section one thousand seven of this article:
15 § 6. The opening paragraph of section 1018 of the racing, pari-mutuel
16 wagering and breeding law, as amended by chapter 18 of the laws of 2008,
17 is amended to read as follows:
18 Notwithstanding any other provision of this chapter, for the period
19 July twenty-fifth, two thousand one through September [ninth] eighth,
20 two thousand [eight] nine, when a franchised corporation is conducting a
21 race meeting within the state at Saratoga Race Course, every off-track
22 betting corporation branch office and every simulcasting facility
23 licensed in accordance with section one thousand seven (that has entered
24 into a written agreement with such facility's representative horsemen's
25 organization as approved by the board), one thousand eight or one thou-
26 sand nine of this article shall be authorized to accept wagers and
27 display the live simulcast signal from thoroughbred tracks located in
28 another state, provided that such facility shall accept wagers on races
29 run at all in-state thoroughbred tracks which are conducting racing
30 programs subject to the following provisions; provided, however, no such
31 written agreement shall be required of a franchised corporation licensed
32 in accordance with section one thousand seven of this article.
33 § 7. Section 32 of chapter 281 of the laws of 1994, amending the
34 racing, pari-mutuel wagering and breeding law and other laws relating to
35 simulcasting, as amended by chapter 18 of the laws of 2008, is amended
36 to read as follows:
37 § 32. This act shall take effect immediately and the pari-mutuel tax
38 reductions in section six of this act shall expire and be deemed
39 repealed on July 1, [2009] 2010; provided, however, that nothing
40 contained herein shall be deemed to affect the application, qualifica-
41 tion, expiration, or repeal of any provision of law amended by any
42 section of this act, and such provisions shall be applied or qualified
43 or shall expire or be deemed repealed in the same manner, to the same
44 extent and on the same date as the case may be as otherwise provided by
45 law; provided further, however, that sections twenty-three and twenty-
46 five of this act shall remain in full force and effect only until May 1,
47 1997 and at such time shall be deemed to be repealed.
48 § 8. Section 54 of chapter 346 of the laws of 1990, amending the
49 racing, pari-mutuel wagering and breeding law and other laws relating to
50 simulcasting and the imposition of certain taxes, as amended by chapter
51 18 of the laws of 2008, is amended to read as follows:
52 § 54. This act shall take effect immediately; provided, however,
53 sections three through twelve of this act shall take effect on January
54 1, 1991, and section 1013 of the racing, pari-mutuel wagering and breed-
55 ing law, as added by section thirty-eight of this act, shall expire and
56 be deemed repealed on July 1, [2009] 2010; and section eighteen of this
S. 60--A 116 A. 160--A
1 act shall take effect on July 1, 2008 and sections fifty-one and fifty-
2 two of this act shall take effect as of the same date as chapter 772 of
3 the laws of 1989 took effect.
4 § 9. Paragraph (a) of subdivision 1 of section 238 of the racing,
5 pari-mutuel wagering and breeding law, as amended by chapter 115 of the
6 laws of 2008, is amended to read as follows:
7 (a) The franchised corporation authorized under this chapter to
8 conduct pari-mutuel betting at a race meeting or races run thereat shall
9 distribute all sums deposited in any pari-mutuel pool to the holders of
10 winning tickets therein, provided such tickets be presented for payment
11 before April first of the year following the year of their purchase,
12 less an amount which shall be established and retained by such fran-
13 chised corporation of between sixteen to seventeen per centum of the
14 total deposits in pools resulting from on-track regular bets, and eigh-
15 teen and one-half to twenty-one per centum of the total deposits in
16 pools resulting from on-track multiple bets and twenty-six per centum of
17 the total deposits in pools resulting from on-track exotic bets and
18 sixteen to thirty-six per centum of the total deposits in pools result-
19 ing from on-track super exotic bets, and twenty-six to thirty-six per
20 centum when such on-track super exotic betting pools are carried
21 forward, plus the breaks. The retention rate to be established is
22 subject to the prior approval of the racing and wagering board. Such
23 rate may not be changed more than once per calendar quarter to be effec-
24 tive on the first day of the calendar quarter. "Exotic bets" and
25 "multiple bets" shall have the meanings set forth in section five
26 hundred nineteen of this chapter. "Super exotic bets" shall have the
27 meaning set forth in section three hundred one of this chapter. For
28 purposes of this section, a "pick six bet" shall mean a single bet or
29 wager on the outcomes of six races. The breaks are hereby defined as the
30 odd cents over any multiple of five for payoffs greater than one dollar
31 five cents but less than five dollars, over any multiple of ten for
32 payoffs greater than five dollars but less than twenty-five dollars,
33 over any multiple of twenty-five for payoffs greater than twenty-five
34 dollars but less than two hundred fifty dollars, or over any multiple of
35 fifty for payoffs over two hundred fifty dollars. Out of the amount so
36 retained there shall be paid by such franchised corporation to the
37 commissioner of taxation and finance, as a reasonable tax by the state
38 for the privilege of conducting pari-mutuel betting on the races run at
39 the race meetings held by such franchised corporation, the following
40 percentages of the total pool for regular and multiple bets five per
41 centum of regular bets and four per centum of multiple bets plus twenty
42 per centum of the breaks; for exotic wagers seven and one-half per
43 centum plus twenty per centum of the breaks, and for super exotic bets
44 seven and one-half per centum plus fifty per centum of the breaks. For
45 the period June first, nineteen hundred ninety-five through September
46 ninth, nineteen hundred ninety-nine, such tax on regular wagers shall be
47 three per centum and such tax on multiple wagers shall be two and one-
48 half per centum, plus twenty per centum of the breaks. For the period
49 September tenth, nineteen hundred ninety-nine through March thirty-
50 first, two thousand one, such tax on all wagers shall be two and six-
51 tenths per centum and for the period April first, two thousand one
52 through December thirty-first, two thousand [nine] ten, such tax on all
53 wagers shall be one and six-tenths per centum, plus, in each such peri-
54 od, twenty per centum of the breaks. Payment to the New York state
55 thoroughbred breeding and development fund by such franchised corpo-
56 ration shall be one-half of one per centum of total daily on-track pari-
S. 60--A 117 A. 160--A
1 mutuel pools resulting from regular, multiple and exotic bets and three
2 per centum of super exotic bets provided, however, that for the period
3 September tenth, nineteen hundred ninety-nine through March thirty-
4 first, two thousand one, such payment shall be six-tenths of one per
5 centum of regular, multiple and exotic pools and for the period April
6 first, two thousand one through December thirty-first, two thousand
7 [nine] ten, such payment shall be seven-tenths of one per centum of such
8 pools.
9 § 10. Paragraph (a) of subdivision 1 of section 238 of the racing,
10 pari-mutuel wagering and breeding law, as amended by chapter 18 of the
11 laws of 2008, is amended to read as follows:
12 (a) The franchised corporation authorized under this chapter to
13 conduct pari-mutuel betting at a race meeting or races run thereat shall
14 distribute all sums deposited in any pari-mutuel pool to the holders of
15 winning tickets therein, provided such tickets be presented for payment
16 before April first of the year following the year of their purchase,
17 less an amount which shall be established and retained by such fran-
18 chised corporation of between twelve to seventeen per centum of the
19 total deposits in pools resulting from on-track regular bets, and four-
20 teen to twenty-one per centum of the total deposits in pools resulting
21 from on-track multiple bets and fifteen to twenty-five per centum of the
22 total deposits in pools resulting from on-track exotic bets and fifteen
23 to thirty-six per centum of the total deposits in pools resulting from
24 on-track super exotic bets, plus the breaks. The retention rate to be
25 established is subject to the prior approval of the racing and wagering
26 board. Such rate may not be changed more than once per calendar quarter
27 to be effective on the first day of the calendar quarter. "Exotic bets"
28 and "multiple bets" shall have the meanings set forth in section five
29 hundred nineteen of this chapter. "Super exotic bets" shall have the
30 meaning set forth in section three hundred one of this chapter. For
31 purposes of this section, a "pick six bet" shall mean a single bet or
32 wager on the outcomes of six races. The breaks are hereby defined as the
33 odd cents over any multiple of five for payoffs greater than one dollar
34 five cents but less than five dollars, over any multiple of ten for
35 payoffs greater than five dollars but less than twenty-five dollars,
36 over any multiple of twenty-five for payoffs greater than twenty-five
37 dollars but less than two hundred fifty dollars, or over any multiple of
38 fifty for payoffs over two hundred fifty dollars. Out of the amount so
39 retained there shall be paid by such franchised corporation to the
40 commissioner of taxation and finance, as a reasonable tax by the state
41 for the privilege of conducting pari-mutuel betting on the races run at
42 the race meetings held by such franchised corporation, the following
43 percentages of the total pool for regular and multiple bets five per
44 centum of regular bets and four per centum of multiple bets plus twenty
45 per centum of the breaks; for exotic wagers seven and one-half per
46 centum plus twenty per centum of the breaks, and for super exotic bets
47 seven and one-half per centum plus fifty per centum of the breaks. For
48 the period June first, nineteen hundred ninety-five through September
49 ninth, nineteen hundred ninety-nine, such tax on regular wagers shall be
50 three per centum and such tax on multiple wagers shall be two and one-
51 half per centum, plus twenty per centum of the breaks. For the period
52 September tenth, nineteen hundred ninety-nine through March thirty-
53 first, two thousand one, such tax on all wagers shall be two and six-
54 tenths per centum and for the period April first, two thousand one
55 through December thirty-first, two thousand [nine] ten, such tax on all
56 wagers shall be one and six-tenths per centum, plus, in each such peri-
S. 60--A 118 A. 160--A
1 od, twenty per centum of the breaks. Payment to the New York state
2 thoroughbred breeding and development fund by such franchised corpo-
3 ration shall be one-half of one per centum of total daily on-track pari-
4 mutuel pools resulting from regular, multiple and exotic bets and three
5 per centum of super exotic bets provided, however, that for the period
6 September tenth, nineteen hundred ninety-nine through March thirty-
7 first, two thousand one, such payment shall be six-tenths of one per
8 centum of regular, multiple and exotic pools and for the period April
9 first, two thousand one through December thirty-first, two thousand
10 [eight] ten, such payment shall be seven-tenths of one per centum of
11 such pools.
12 § 11. Subdivision 5 of section 1012 of the racing, pari-mutuel wager-
13 ing and breeding law, as amended by chapter 18 of the laws of 2008, is
14 amended to read as follows:
15 5. The provisions of this section shall expire and be of no further
16 force and effect after June thirtieth, two thousand [nine] ten.
17 § 12. This act shall take effect immediately, provided that the amend-
18 ments to paragraph (a) of subdivision 1 of section 238 of the racing,
19 pari-mutuel wagering and breeding law made by section nine of this act
20 shall be subject to the expiration and reversion of such paragraph
21 pursuant to section 32 of chapter 115 of the laws of 2008, as amended,
22 when upon such date the provisions of section ten of this act shall take
23 effect.
24 PART Z
25 Section 1. Paragraph 1 of subdivision (j) of section 1111 of the tax
26 law, as amended by section 1 of part E of chapter 85 of the laws of
27 2002, is amended to read as follows:
28 (1) The tax required to be prepaid pursuant to section eleven hundred
29 three of this article shall be computed by multiplying the base retail
30 price by a tax rate of [seven] eight percent and rounding the result
31 thereof to the nearest whole cent per package.
32 § 2. This act shall take effect June 1, 2009; and shall apply to sales
33 made and uses occurring on or after that date in accordance with appli-
34 cable transitional provisions in article 28 of the tax law.
35 PART AA
36 Section 1. Paragraph 17 of subdivision (b) of section 1101 of the tax
37 law, as added by chapter 309 of the laws of 1996, is amended to read as
38 follows:
39 (17) Commercial aircraft. Aircraft used primarily (i) to transport
40 persons or property, for hire, (ii) by the purchaser of the aircraft
41 [primarily] to transport such person's tangible personal property in the
42 conduct of such person's business, or (iii) for both such purposes.
43 Transporting persons for hire does not include transporting agents,
44 employees, officers, members, partners, managers or directors of affil-
45 iated persons. Persons are affiliated persons with respect to each other
46 where one of the persons has an ownership interest of more than five
47 percent, whether direct or indirect, in the other, or where an ownership
48 interest of more than five percent, whether direct or indirect, is held
49 in each of the persons by another person or by a group of other persons
50 that are affiliated persons with respect to each other.
51 § 2. Subdivision 2 of section 1118 of the tax law, as amended by chap-
52 ter 651 of the laws of 1999, is amended to read as follows:
S. 60--A 119 A. 160--A
1 (2) In respect to the use of property or services purchased by the
2 user while a nonresident of this state, except in the case of tangible
3 personal property or services which the user, in the performance of a
4 contract, incorporates into real property located in the state. A person
5 while engaged in any manner in carrying on in this state any employment,
6 trade, business or profession, shall not be deemed a nonresident with
7 respect to the use in this state of property or services in such employ-
8 ment, trade, business or profession. This exemption does not apply to
9 the use of qualified property where the qualified property is purchased
10 primarily to carry individuals, whether or not for hire, who are agents,
11 employees, officers, shareholders, members, managers, partners, or
12 directors of (A) the purchaser, where any of those individuals was a
13 resident of this state when the qualified property was purchased or (B)
14 any affiliated person that was a resident when the qualified property
15 was purchased. For purposes of this subdivision: (i) persons are affil-
16 iated persons with respect to each other where one of the persons has an
17 ownership interest of more than five percent, whether direct or indi-
18 rect, in the other, or where an ownership interest of more than five
19 percent, whether direct or indirect, is held in each of the persons by
20 another person or by a group of other persons that are affiliated
21 persons with respect to each other; (ii) "qualified property" means
22 aircraft, vessels and motor vehicles; and (iii) "carry" means to take
23 any person from one point to another, whether for the business purposes
24 or pleasure of that person.
25 § 3. This act shall take effect on June 1, 2009, and shall apply to
26 sales made and uses occurring on or after such date in accordance with
27 the applicable transitional provisions in sections 1106 and 1217 of the
28 tax law.
29 PART BB
30 Section 1. Subdivision (e-1) of section 1132 of the tax law is
31 REPEALED.
32 § 2. This act shall take effect on June 1, 2009.
33 PART CC
34 Section 1. Section 208 of the tax law is amended by adding a new
35 subdivision 20 to read as follows:
36 20. The term "digital product" means any property or service, or
37 combination thereof, of whatever nature delivered to the purchaser
38 through the use of wire, cable, fiber-optic, laser, microwave, radio
39 wave, satellite or similar successor media, or any combination thereof.
40 Digital product includes, but is not limited to, an audio work, audi-
41 ovisual work, visual work, book or literary work, graphic work, game,
42 information or entertainment service, storage of digital products and
43 computer software by whatever means delivered. The term "delivered to"
44 includes furnished or provided to or accessed by. For purposes of para-
45 graph (a) of subdivision two of section two hundred nine-B of this arti-
46 cle, subparagraph one of paragraph (a) of subdivision three of section
47 two hundred ten of this article and subdivisions twelve, twelve-B and
48 thirty-three of section two hundred ten of this article, digital
49 products will be deemed intangible property. A digital product does not
50 include legal, medical, accounting, architectural or engineering
51 services.
S. 60--A 120 A. 160--A
1 § 2. Clause (B) of subparagraph 2 of paragraph (a) of subdivision 3 of
2 section 210 of the tax law, as separately amended by section 1 of part K
3 and section 13 of part Y of chapter 63 of the laws of 2000, is amended
4 to read as follows:
5 (B) services performed within the state, provided, however, that (i)
6 in the case of a taxpayer engaged in the business of publishing newspa-
7 pers or periodicals, receipts arising from sales of advertising
8 contained in such newspapers and periodicals shall be deemed to arise
9 from services performed within the state to the extent that such newspa-
10 pers and periodicals are delivered to points within the state, (ii)
11 receipts from an investment company arising from the sale of management,
12 administration or distribution services to such investment company shall
13 be deemed to arise from services performed within the state to the
14 extent set forth in subparagraph six of this paragraph, (iii) in the
15 case of taxpayers principally engaged in the activity of air freight
16 forwarding acting as principal and like indirect air carriage receipts
17 arising from such activity shall arise from services performed within
18 the state as follows: one hundred percent of such receipts if both the
19 pickup and delivery associated with such receipts are made in this state
20 and fifty percent of such receipts if either the pickup or delivery
21 associated with such receipts is made in this state and (iv) in the case
22 of a taxpayer which is a registered securities or commodities broker or
23 dealer, the receipts specified in subparagraph nine of this paragraph
24 shall be deemed to arise from services performed within the state to the
25 extent set forth in such subparagraph nine, [and (iv)] (v) in the case
26 of a taxpayer engaged in the business of broadcasting television or
27 radio programs or otherwise transmitting television or radio programs,
28 receipts arising from sales of advertising on television or radio will
29 be deemed to be receipts from services performed within the state based
30 on the ratio of the number of viewers or listeners within the state to
31 the total number of viewers or listeners within and without the state,
32 and (vi) in the case of a taxpayer not described in subclause (v) of
33 this clause, receipts arising from sales of advertising that is
34 furnished, provided or delivered to, or accessed by the viewer or
35 listener through the use of wire, cable, fiber-optic, laser, microwave,
36 radio wave, satellite or similar successor media or any combination
37 thereof, will be deemed to be receipts from a service performed within
38 the state based on the ratio or the number of viewers or listeners with-
39 in the state to the total number of viewers or listeners within and
40 without the state, and (vii) in the case of receipts arising from the
41 transportation or transmission of gas through pipes, the portion of such
42 receipts which constitute receipts from services performed within the
43 state shall be the product of (I) the total of such receipts and (II) a
44 fraction, the numerator of which is the taxpayer's transportation units
45 within the state and the denominator of which is the taxpayer's trans-
46 portation units within and without the state. A transportation unit is
47 the transportation of one cubic foot of gas over a distance of one mile,
48 § 3. Clause (C) of subparagraph 2 of paragraph (a) of subdivision 3 of
49 section 210 of the tax law, as amended by chapter 802 of the laws of
50 1975, is amended to read as follows:
51 (C) Except as provided in clause (D) of this subparagraph, rentals
52 from property situated, and royalties from the use of patents or copy-
53 rights, and other similar intangible property within the state, [and
54 receipts from the sales of rights for closed-circuit and cable tele-
55 vision transmissions of an event (other than events occurring on a regu-
56 larly scheduled basis) taking place within the state as a result of the
S. 60--A 121 A. 160--A
1 rendition of services by employees of the corporation, as athletes,
2 entertainers or performing artists, but only to the extent that such
3 receipts are attributable to such transmissions received or exhibited
4 within the state] and
5 § 4. Clause (D) of subparagraph 2 of paragraph (a) of subdivision 3 of
6 section 210 of the tax law, as amended by chapter 802 of the laws of
7 1975, is amended to read as follows:
8 [(D)] (E) all other business receipts earned within the state, bear to
9 the total amount of the taxpayer's receipts, similarly computed, arising
10 during such period from all sales of its tangible personal property,
11 services, rentals, royalties, [receipts from the sales of rights for
12 closed-circuit and cable television transmissions] receipts from digital
13 products and all other business transactions, whether within or without
14 the state;
15 § 5. Subparagraph 2 of paragraph (a) of subdivision 3 of section 210
16 of the tax law is amended by adding new clause (D) to read as follows:
17 (D) receipts from the sale of, license to use, or granting of remote
18 access to digital products within the state determined according to the
19 hierarchy of methods set forth in this clause in the order stated in
20 subclauses (i) through (iv) of this clause. The taxpayer must exercise
21 due diligence under each method described in this clause before reject-
22 ing it and proceeding to the next method in the hierarchy. If the
23 receipt for a digital product is comprised of a combination of property
24 and services, it cannot be divided into separate components and is
25 considered to be one receipt regardless of whether it is separately
26 stated for billing purposes. The entire receipt must be allocated by
27 this hierarchy.
28 (i) Receipts allocated to the delivery destination of the digital
29 product. A digital product is deemed delivered within the state if the
30 location from which the purchaser or its authorized user accesses or
31 uses the digital product is in the state. Destination may be demon-
32 strated by internet protocol address or other similar or successor indi-
33 cator, the geographic location of the equipment to which the digital
34 product is delivered or from which the digital product is accessed, or
35 the delivery destination indicated on a bill of lading or purchase
36 invoice. A digital product accessed or used by the purchaser or its
37 authorized user during the taxpayer's taxable year in multiple locations
38 is delivered within the state to the extent that the digital product is
39 accessed or used in the state;
40 (ii) the billing address of the purchaser;
41 (iii) the zip code or other geographic indicator of the purchaser's
42 location; or
43 (iv) the percentage of the taxpayer's receipts within the state deter-
44 mined pursuant to this subparagraph for the preceding taxable year.
45 However, if the taxpayer was not subject to tax in the preceding taxable
46 year, then the receipts within the state in the current taxable year
47 determined pursuant to this subparagraph.
48 § 6. Subparagraph 2 of paragraph (b) of subdivision 2 of section 209-B
49 of the tax law, as amended by section 3 of part K of chapter 63 of the
50 laws of 2000, is amended to read as follows:
51 (2) services performed within the metropolitan commuter transportation
52 district, provided, however, that (i) in the case of a taxpayer engaged
53 in the business of publishing newspapers or periodicals, receipts aris-
54 ing from sales of advertising contained in such newspapers and period-
55 icals shall be deemed to arise from services performed within the metro-
56 politan commuter transportation district to the extent that such
S. 60--A 122 A. 160--A
1 newspapers and periodicals are delivered to points within the metropol-
2 itan commuter transportation district, (ii) receipts from an investment
3 company from the sale of management, administration or distribution
4 services to such investment company shall be deemed to arise from
5 services performed within the metropolitan commuter transportation
6 district to the extent set forth in subparagraph six of paragraph (a) of
7 subdivision three of section two hundred ten of this chapter (except
8 that references in such subparagraph six to the state shall be deemed,
9 for purposes of application to this clause, to be references to the
10 metropolitan commuter transportation district), (iii) in the case of
11 taxpayers principally engaged in the activity of air freight forwarding
12 acting as principal and like indirect air carriage receipts arising from
13 such activity shall arise from services performed within the metropol-
14 itan commuter transportation district as follows: one hundred percent of
15 such receipts if both the pickup and delivery associated with such
16 receipts are made in the metropolitan commuter transportation district
17 and fifty percent of such receipts if either the pickup or delivery
18 associated with such receipts is made in the metropolitan commuter
19 transportation district, [and] (iv) in the case of a taxpayer which is a
20 registered securities or commodities broker or dealer, the receipts
21 specified in subparagraph nine of paragraph (a) of subdivision three of
22 section two hundred ten of this article shall be deemed to arise from
23 services performed within the metropolitan commuter transportation
24 district to the extent set forth in such subparagraph nine (except that
25 references in such subparagraph nine to the state shall be deemed, for
26 purposes of the application of this clause, to be references to the
27 metropolitan commuter transportation district) and (v) in the case of a
28 taxpayer engaged in the business of broadcasting television or radio
29 programs or otherwise transmitting television or radio programs,
30 receipts arising from sales of advertising on television or radio will
31 be deemed to be receipts from services performed within the metropolitan
32 commuter transportation district based on the ratio of the number of
33 viewers or listeners within the metropolitan commuter transportation
34 district to the total number of viewers or listeners within the state,
35 and (vi) in the case of a taxpayer not described in clause (v) of this
36 subparagraph, receipts arising from sales of advertising that is
37 furnished to, provided or delivered to, or accessed by the viewer or
38 listener through the use of wire, cable, fiber-optic, laser, microwave,
39 radio wave, satellite or similar successor media or any combination
40 thereof, will be deemed to be receipts from a service performed within
41 the metropolitan commuter transportation district based on the ratio of
42 the number of viewers or listeners within the metropolitan commuter
43 transportation district to the total number of viewers or listeners
44 within the state,
45 § 7. Subparagraph 3 of paragraph (b) of subdivision 2 of section 209-B
46 of the tax law, as amended by chapter 11 of the laws of 1983, is amended
47 to read as follows:
48 (3) Except as provided in subparagraph four of this paragraph, rentals
49 from property situated and royalties from the use of patents or copy-
50 rights and other similar intangible within the metropolitan commuter
51 transportation district, [and receipts from the sales of rights for
52 closed-circuit and cable television transmissions of an event (other
53 than events occurring on a regularly scheduled basis) taking place with-
54 in the metropolitan commuter transportation district as a result of the
55 rendition of services by employees of the corporation, as athletes,
56 entertainers or performing artists, but only to the extent that such
S. 60--A 123 A. 160--A
1 receipts are attributable to such transmissions received or exhibited
2 within the metropolitan commuter transportation district,] and
3 § 8. Subparagraph 4 of paragraph (b) of subdivision 2 of section 209-B
4 of the tax law, as amended by chapter 11 of the laws of 1983, is amended
5 to read as follows:
6 [(4)] (5) all other business receipts earned within the metropolitan
7 commuter transportation district, bear to the total amount of the
8 taxpayer's receipts, similarly computed, arising during such period from
9 all sales of its tangible personal property, services, rentals, royal-
10 ties, [receipts from the sales of rights for closed-circuit and cable
11 television transmissions] receipts from digital products and all other
12 business transactions, within the state;
13 § 9. Paragraph (b) of subdivision 2 of section 209-B of the tax law is
14 amended by adding a new subparagraph 4 to read as follows:
15 (4) receipts from the sale of, license to use, or granting of remote
16 access to digital products within the metropolitan commuter transporta-
17 tion district determined according to the hierarchy of methods set forth
18 in this subparagraph in the order stated in clauses (i) through (iv) of
19 this subparagraph. The taxpayer must exercise due diligence under each
20 method described in this subparagraph before rejecting it and proceeding
21 to the next method in the hierarchy. If the receipt for a digital prod-
22 uct is comprised of a combination of property and services, it cannot be
23 divided into separate components and is considered to be one receipt
24 regardless of whether it is separately stated for billing purposes. The
25 entire receipt must be allocated by this hierarchy.
26 (i) Receipts allocated to the delivery destination of the digital
27 product. A digital product is deemed delivered within the metropolitan
28 commuter transportation district if the location from which the purchas-
29 er or its authorized user accesses or uses the digital product is in the
30 metropolitan commuter transportation district. Destination may be demon-
31 strated by internet protocol address or other similar or successor indi-
32 cator, the geographic location of the equipment to which the digital
33 product is delivered or from which the digital product is accessed, the
34 delivery destination indicated on a bill of lading or purchase invoice.
35 A digital product accessed or used by the purchaser or its authorized
36 user during the taxpayer's taxable year in multiple locations is deliv-
37 ered within the metropolitan commuter transportation district to the
38 extent that the digital product is accessed or used in the metropolitan
39 commuter transportation district;
40 (ii) the billing address of the purchaser;
41 (iii) the zip code or other geographic indicator of the purchaser's
42 location; or
43 (iv) the percentage of the taxpayer's receipts within the metropolitan
44 commuter transportation district determined pursuant to this paragraph
45 for the preceding taxable year. However, if the taxpayer was not subject
46 to tax in the preceding taxable year, then the receipts within the
47 metropolitan commuter transportation district in the current taxable
48 year determined pursuant to this paragraph.
49 § 9-a. Subparagraph 4 of paragraph (b) of subdivision 2 of section
50 186-e of the tax law, as added by section 5 of part S of chapter 85 of
51 the laws of 2002, is amended to read as follows:
52 (4) With respect to services [or], property or digital products
53 described in subparagraph (B) of paragraph one of subdivision [(1)] one
54 of section eleven hundred eleven of this chapter and internet access
55 service, a home service provider shall pay tax on the gross receipt from
56 any charge that is aggregated with and not separately stated from other
S. 60--A 124 A. 160--A
1 charges for mobile telecommunications service. Provided, however, if
2 such home service provider uses an objective, reasonable and verifiable
3 standard for identifying each of the components of the charge for mobile
4 telecommunications service, then such home service provider may sepa-
5 rately account for and quantify the amount of each such component
6 charge. If a home service provider chooses to so separately account for
7 and quantify and separately sells the subparagraph (B) property, digital
8 product or service or internet access service, then the charge for such
9 property, digital product or service shall be based upon the price for
10 such property, digital product or service as separately sold. If a home
11 service provider chooses to so separately account for and quantify and
12 does not separately sell such property, digital product or service, then
13 the charge for such property, digital product or service shall be based
14 upon the prevailing retail price of comparable property, digital product
15 or service sold separately by other home service providers. In any case,
16 the charge for such property, digital product or service shall be
17 reasonable and proportionate to the total charge to the mobile telecom-
18 munications customer. Such charges for such subparagraph (B) services
19 [or], property, digital products or internet access service, as the case
20 may be, will not constitute gross receipts from charges for mobile tele-
21 communications services. Nothing herein shall be construed to exempt
22 from tax any service or property, or digital product otherwise subject
23 to tax under this section.
24 § 10. Section 1101 of the tax law is amended by adding a new subdivi-
25 sion (e) to read as follows:
26 (e) Digital product. (1) When used in this article for the purposes
27 of the taxes imposed by subdivision (g) of section eleven hundred five
28 of this article and by section eleven hundred ten of this article, the
29 term "digital product" means any property or service of whatever nature,
30 delivered to the purchaser through the use of wire, cable, fiber optic,
31 laser, microwave, radio wave, satellite or similar or successor media,
32 or any combination thereof. Digital product includes, but is not limited
33 to, an audio work, audiovisual work, visual work, book or literary work,
34 graphic work, game, information or entertainment service, storage of
35 digital products and computer software. The term "delivered to" includes
36 furnished or provided to or accessed by.
37 (2) Digital product does not include the following:
38 (i) any tangible personal property or service that is subject to tax
39 under any provision of this article other than subdivision (g) of
40 section eleven hundred five of this article.
41 (ii) any service, other than a game or entertainment service, unless
42 that service would otherwise be subject to tax under paragraphs one,
43 seven or eight of subdivision (c) of section eleven hundred five of this
44 article if that service were furnished, provided or delivered in tangi-
45 ble form or as a service to tangible personal property or real property.
46 (iii) television or radio programming where the purchaser does not
47 select both the content and the time at which the content is displayed.
48 (iv) purchaser-selected content sold with television programming for a
49 single charge.
50 (v) computer software that is not pre-written computer software.
51 § 11. Section 1105 of the tax law is amended by adding a new subdivi-
52 sion (g) to read as follows:
53 (g) Receipts from every retail sale of a digital product. Notwith-
54 standing any other provision of law, a digital product is delivered to
55 the location to which the digital product is transmitted to the purchas-
56 er or its agent, or from which the purchaser or its agent accesses the
S. 60--A 125 A. 160--A
1 digital product. For purposes of determining the jurisdiction or juris-
2 dictions in which the retail sale of a digital product occurs, the
3 following rules apply:
4 (1) Receipts from the retail sale of digital products, other than
5 pre-written computer software that is not in tangible form, are sourced
6 to the place where delivered to the purchaser. The foregoing rule is
7 amplified, but not limited, by the following special provisions:
8 (i) if the vendor knows, either by internet protocol address or other
9 similar or successor indicator, the geographic location of the equipment
10 to which the digital product is delivered, the retail sale is sourced to
11 the jurisdiction or jurisdictions in which that equipment is located;
12 (ii) if the geographic location of the equipment described in subpara-
13 graph (i) of this paragraph is unknown, the retail sale is sourced to
14 the jurisdiction or jurisdictions in which the billing address of the
15 purchaser associated with the method of payment for the digital product
16 is located;
17 (iii) if the geographic location of the equipment described in subpar-
18 agraph (i) and the billing address described in subparagraph (ii) of
19 this paragraph are unknown, the retail sale is sourced to the residen-
20 tial or business street address of the purchaser, as applicable,
21 provided that the use of that address does not constitute bad faith.
22 (2) Receipts from the retail sale of pre-written computer software
23 that is not in tangible form are sourced as follows:
24 (i) if the receipt from the retail sale of the software is less than
25 one thousand dollars, or the retail sale of the software includes fewer
26 than ten site licenses, or both, the retail sale of the software is
27 sourced in accordance with the provisions of paragraph one of this
28 subdivision;
29 (ii) if the receipt from the retail sale of the software is one thou-
30 sand dollars or more, or the software includes ten or more site
31 licenses, the retail sale of the software is sourced in accordance with
32 the provisions of paragraph one of this subdivision, unless the vendor
33 has timely received from the purchaser a properly completed multiple
34 points of use certificate in accordance with the provisions of subdivi-
35 sion (c) of section eleven hundred thirty-two of this article.
36 § 12. Subdivision (c) of section 1132 of the tax law, as amended by
37 chapter 2 of the laws of 1995, is amended to read as follows:
38 (c) (1) For the purpose of the proper administration of this article
39 and to prevent evasion of the tax hereby imposed, it shall be presumed
40 that all receipts for property, digital products or services of any type
41 mentioned in subdivisions (a), (b), (c) [and], (d) and (g) of section
42 eleven hundred five of this article, all rents for occupancy of the type
43 mentioned in subdivision (e) of [said] such section, and all amusement
44 charges of any type mentioned in subdivision (f) of [said] such section,
45 are subject to tax until the contrary is established, and the burden of
46 proving that any receipt, amusement charge or rent is not taxable here-
47 under shall be upon the person required to collect tax or the customer.
48 Except as provided in subdivision (h) or (k) of this section, unless (i)
49 a vendor, not later than ninety days after delivery of the property or
50 digital product, or the rendition of the service, shall have taken from
51 the purchaser a resale or exemption certificate in such form as the
52 commissioner may prescribe, signed by the purchaser and setting forth
53 the purchaser's name and address and, except as otherwise provided by
54 regulation of the commissioner, the number of the purchaser's certif-
55 icate of authority, together with such other information as the commis-
56 sioner may require, to the effect that the property, digital product or
S. 60--A 126 A. 160--A
1 service was purchased for resale or for some use by reason of which the
2 sale is exempt from tax under the provisions of section eleven hundred
3 fifteen of this article, and, where such resale or exemption certificate
4 requires the inclusion of the purchaser's certificate of authority
5 number or other identification number required by regulations of the
6 commissioner, that the purchaser's certificate of authority has not been
7 suspended or revoked and has not expired as provided in section eleven
8 hundred thirty-four of this part, or (ii) the purchaser, not later than
9 ninety days after delivery of the property or digital product or the
10 rendition of the service, furnishes to the vendor: any affidavit, state-
11 ment or additional evidence, documentary or otherwise, which the commis-
12 sioner may require demonstrating that the purchaser is an exempt organ-
13 ization described in section eleven hundred sixteen of this article, the
14 sale shall be deemed a taxable sale at retail. Where a resale or
15 exemption certificate or an affidavit, statement or additional evidence
16 referred to in the previous sentence is received within the time limit
17 set forth therein, but is deficient in some material manner, and where
18 such deficiency is thereafter removed, the receipt of such resale or
19 exemption certificate or such affidavit, statement or additional
20 evidence shall be deemed to have satisfied all of the requirements of
21 the preceding sentence. Where such a resale or exemption certificate or
22 such an affidavit, statement or additional evidence has been furnished
23 to the vendor, the burden of proving that the receipt, amusement charge
24 or rent is not taxable hereunder shall be solely upon the customer. The
25 vendor shall not be required to collect tax from purchasers who furnish
26 a resale or exemption certificate, or such an affidavit, statement or
27 additional evidence in proper form, unless, in the case of a resale or
28 exemption certificate described in [clause] subparagraph (i) [of the
29 second sentence] of this paragraph whereon the purchaser's certificate
30 of authority number, or other identification number required by regu-
31 lation of the commissioner, is required to be included, such purchaser's
32 certificate of authority is invalid because it has been suspended or
33 revoked as provided in section eleven hundred thirty-four of this part,
34 and the commissioner has furnished registered vendors with information
35 identifying those persons whose certificates of authority have been
36 suspended or revoked, or unless such purchaser's certificate of authori-
37 ty is invalid because it has expired, and the commissioner has provided
38 registered vendors with a means of determining whether such expiration
39 has occurred. Where the vendor accepts such a resale or exemption
40 certificate from a person identified by the commissioner as one whose
41 certificate of authority has been suspended or revoked or from a person
42 whose certificate of authority has been identified as having expired,
43 the receipt, amusement charge or rent from such transaction shall be
44 deemed to be a taxable sale at retail.
45 (2) Notwithstanding paragraph one of this subdivision or any other law
46 to the contrary, the commissioner may authorize a purchaser, who
47 acquires tangible personal property, digital products or services under
48 circumstances which make it impossible at the time of acquisition to
49 determine the manner in which the tangible personal property, digital
50 products or services will be used, to pay the tax directly to the
51 commissioner and waive the collection of the tax by the vendor. Subject
52 to such reasonable conditions as the commissioner may require, the
53 commissioner shall authorize an omnibus carrier described in subdivision
54 (b) of section eleven hundred nineteen of this article to pay the tax on
55 the purchase or use of an omnibus directly to the commissioner and waive
56 the collection of the tax by the vendor. No such authority shall be
S. 60--A 127 A. 160--A
1 granted or exercised except upon application to the commissioner, and
2 the issuance by the commissioner, in the commissioner's discretion, of a
3 direct payment permit. If a direct payment permit is granted, its use
4 shall be subject to conditions specified by the commissioner, and the
5 payment of tax on all acquisitions pursuant to the permit shall be made
6 directly to the commissioner by the permit holder. The commissioner may
7 suspend or revoke a direct payment permit where the permit holder fails
8 to comply with any of the provisions of this article or any rule promul-
9 gated by the commissioner with respect to this article. The notice and
10 hearing provisions applicable to the revocation and suspension of
11 certificates of authority under section eleven hundred thirty-four of
12 this part shall apply to the suspension and revocation of direct payment
13 permits. A vendor shall not be required to collect tax from a purchaser
14 who furnishes a direct payment permit in proper form, unless such
15 purchaser's direct payment permit has been suspended or revoked by the
16 commissioner and the commissioner has provided registered vendors with
17 information identifying those persons whose direct payment permits have
18 been suspended or revoked. Where a vendor accepts a direct payment
19 permit from a person whose direct payment permit has been suspended or
20 revoked, and the commissioner has provided registered vendors with
21 information identifying those persons whose direct payment permits have
22 been suspended or revoked, the receipt, amusement charge or rent from
23 such transaction shall be deemed to be subject to tax.
24 (3) Notwithstanding any other provision of law to the contrary, if a
25 vendor of pre-written computer software described in clause (ii) of
26 paragraph two of subdivision (g) of section eleven hundred five of this
27 article has, not later than ninety days after the delivery of the pre-
28 written computer software, taken from the purchaser a properly completed
29 multiple points of use certificate that sets forth the jurisdiction or
30 jurisdictions in which the software is delivered, the sale of the soft-
31 ware must be sourced, and the vendor must allocate, collect, and remit
32 the taxes imposed by this article and pursuant to the authority of arti-
33 cle twenty-nine of this chapter, based on the jurisdiction or jurisdic-
34 tions within New York state in which each user is located, as indicated
35 by the purchaser in the certificate. The multiple points of use certif-
36 icate shall be in the form the commissioner may prescribe, signed by the
37 purchaser, shall set forth the purchaser's name and address and, except
38 as otherwise provided by regulation of the commissioner, state the
39 number of the purchaser's certificate of authority, together with any
40 other information the commissioner may require. When a properly
41 completed multiple points of use certificate has been furnished to the
42 vendor, the burden of proving the jurisdiction or jurisdictions to which
43 the pre-written computer software was delivered will be solely upon the
44 purchaser. When a multiple points of use certificate is timely received
45 by the vendor but is deficient in some material way, and the deficiency
46 is later removed, the receipt of the certificate will be deemed to have
47 satisfied all of the requirements of this paragraph.
48 (4) A multiple points of use certificate is not valid if the purchas-
49 er's certificate of authority has been suspended or revoked and the
50 commissioner has furnished registered vendors with information identify-
51 ing those persons whose certificates of authority have been suspended or
52 revoked, or the purchaser's certificate of authority is invalid because
53 it has expired as provided in section eleven hundred thirty-four of this
54 part and the commissioner has provided registered vendors with a means
55 of determining that the purchaser's certificate of authority has
56 expired. The vendor will not be required to collect tax allocable to the
S. 60--A 128 A. 160--A
1 portion of the receipt that the properly completed multiple points of
2 use certificate indicates is attributable to use of the software outside
3 New York state.
4 § 13. Paragraph (i) of subdivision (d) of section 12 of the tax law,
5 as added by chapter 615 of the laws of 1998, is amended to read as
6 follows:
7 (i) Except as provided in clause (B) of subparagraph (ii) of paragraph
8 eight of subdivision (b) of section eleven hundred one of this chapter,
9 a person selling telecommunication services or an Internet access
10 service shall not be deemed to be a vendor, for purposes of article
11 twenty-eight or twenty-nine of this chapter, of tangible personal prop-
12 erty, digital products or services sold by the purchaser of such tele-
13 communication services or Internet access service solely because such
14 purchaser uses such telecommunication services or Internet access
15 service as a means to sell such tangible personal property, digital
16 products or services.
17 § 14. The opening paragraph of subdivision (b) of section 1101 of the
18 tax law, as added by chapter 93 of the laws of 1965, is amended to read
19 as follows:
20 When used in this article for the purposes of the taxes imposed by
21 subdivisions (a), (b), (c) [and], (d) and (g) of section eleven hundred
22 five and by section eleven hundred ten of this article, the following
23 terms shall mean:
24 § 15. Paragraph 2 of subdivision (b) of section 1101 of the tax law,
25 as amended by section 7 of part S of chapter 85 of the laws of 2002, is
26 amended to read as follows:
27 (2) Purchaser. A person who purchases property or a digital product or
28 to whom are rendered services, the receipts from which are taxable under
29 this article, including a mobile telecommunications customer.
30 § 16. Paragraph 3 of subdivision (b) of section 1101 of the tax law,
31 as amended by section 21 of part Y of chapter 63 of the laws of 2000, is
32 amended to read as follows:
33 (3) Receipt. The amount of the sale price of any property or digital
34 product and the charge for any service taxable under this article,
35 including gas and gas service and electricity and electric service of
36 whatever nature, valued in money, whether received in money or other-
37 wise, including any amount for which credit is allowed by the vendor to
38 the purchaser, without any deduction for expenses or early payment
39 discounts and also including any charges by the vendor to the purchaser
40 for shipping or delivery, and, with respect to gas and gas service and
41 electricity and electric service, any charges by the vendor for trans-
42 portation, transmission or distribution, regardless of whether such
43 charges are separately stated in the written contract, if any, or on the
44 bill rendered to such purchaser and regardless of whether such shipping
45 or delivery or transportation, transmission, or distribution is provided
46 by such vendor or a third party, but excluding any credit for tangible
47 personal property accepted in part payment and intended for resale. For
48 special rules governing computation of receipts, see section eleven
49 hundred eleven of this article.
50 § 17. Subparagraph (i) of paragraph 4 of subdivision (b) of section
51 1101 of the tax law, as amended by chapter 190 of the laws of 1990, is
52 amended to read as follows:
53 (i) A sale of tangible personal property or a digital product to any
54 person for any purpose, other than (A) for resale as such or as a phys-
55 ical component part of tangible personal property or, in the case of a
56 digital product, as a component part of tangible personal property, or
S. 60--A 129 A. 160--A
1 (B) for use by that person in performing the services subject to tax
2 under paragraphs (1), (2), (3), (5), (7) and (8) of subdivision (c) of
3 section eleven hundred five of this article where the tangible personal
4 property so sold becomes a physical component part or the digital prod-
5 uct becomes a component part of the property upon which the services are
6 performed or where the property so sold is later actually transferred to
7 the purchaser of the service in conjunction with the performance of the
8 service subject to tax. Notwithstanding the preceding provisions of
9 this subparagraph, a sale of any tangible personal property to a
10 contractor, subcontractor or repairman for use or consumption in erect-
11 ing structures or buildings, or building on, or otherwise adding to,
12 altering, improving, maintaining, servicing or repairing real property,
13 property or land, as the terms real property, property or land are
14 defined in the real property tax law, is deemed to be a retail sale
15 regardless of whether the tangible personal property is to be resold as
16 such before it is so used or consumed, except that a sale of a new
17 mobile home to a contractor, subcontractor or repairman who, in such
18 capacity, installs such property is not a retail sale. Notwithstanding
19 the preceding provisions of this subparagraph, the purchase of a truck,
20 trailer or tractor-trailer combination for rental or lease to an author-
21 ized carrier, as described in paragraph twenty-two of subdivision (a) of
22 section eleven hundred fifteen of this article, shall be deemed a retail
23 sale.
24 § 18. Clause (A) of subparagraph (iv) of paragraph 4 of subdivision
25 (b) of section 1101 of the tax law, as added by chapter 93 of the laws
26 of 1965 and such subparagraph as renumbered by chapter 2 of the laws of
27 1995, is amended to read as follows:
28 (A) The transfer of tangible personal property or a digital product to
29 a corporation, solely in consideration for the issuance of its stock,
30 pursuant to a merger or consolidation effected under the law of New York
31 or any other jurisdiction.
32 § 19. Paragraph 6 of subdivision (b) of section 1101 of the tax law,
33 as amended by chapter 498 of the laws of 1994, is amended to read as
34 follows:
35 (6) Tangible personal property. Corporeal personal property of any
36 nature. However, except for purposes of the tax imposed by subdivision
37 (b) of section eleven hundred five, such term shall not include gas,
38 electricity, refrigeration and steam. Such term shall also include pre-
39 written computer software, whether sold as part of a package, as a sepa-
40 rate component, or otherwise, [and regardless of the medium by means of
41 which such software is conveyed to a purchaser. Such term shall also
42 include newspapers and periodicals where the vendor ships or delivers
43 the entire edition or issue of the newspaper or periodical, with or
44 without the advertising included in the paper edition or issue, but not
45 including anything, other than advertising, not in such paper edition or
46 issue, to the purchaser by means of telephony or telegraphy or other
47 electronic media, but only where the amount of the sale price to such
48 purchaser of such newspaper or magazine or the subscription price, in
49 the case of a subscription to a newspaper or periodical, including any
50 charge by such vendor for shipping or delivery to the purchaser, is
51 separately stated to such purchaser] when delivered to the purchaser in
52 tangible form.
53 § 20. Paragraph 7 of subdivision (b) of section 1101 of the tax law,
54 as amended by chapter 651 of the laws of 1999, is amended to read as
55 follows:
S. 60--A 130 A. 160--A
1 (7) Use. The exercise of any right or power over tangible personal
2 property or a digital product, or over any of the services which are
3 subject to tax under section eleven hundred ten of this article or
4 pursuant to the authority of article twenty-nine of this chapter, by the
5 purchaser thereof, and includes, but is not limited to, the receiving,
6 storage or any keeping or retention for any length of time, withdrawal
7 from storage, any installation, any affixation to real or personal prop-
8 erty, or any consumption of such property or digital product or of any
9 such service subject to tax under such section eleven hundred ten or
10 pursuant to the authority of such article twenty-nine. Without limiting
11 the foregoing, use also [shall include] includes the accessing of a
12 digital product from a location within the state, regardless of where
13 the digital product is installed or resides on a server or other equip-
14 ment, and the distribution of [only] tangible personal property or
15 digital products, such as promotional materials, or of any such service
16 subject to tax under such section eleven hundred ten of this article or
17 pursuant to the authority of such article twenty-nine of this chapter.
18 § 21. Subparagraph (i) of paragraph 8 of subdivision (b) of section
19 1101 of the tax law, as amended by chapter 61 of the laws of 1989,
20 clause (F) as added and clauses (G) and (H) as relettered by chapter 190
21 of the laws of 1990, is amended to read as follows:
22 (i) The term "vendor" includes:
23 (A) A person making sales of tangible personal property, digital
24 products or services, the receipts from which are taxed by this article;
25 (B) A person maintaining a place of business in the state and making
26 sales, whether at such place of business or elsewhere, to persons within
27 the state of tangible personal property, digital products or services,
28 the use of which is taxed by this article;
29 (C) A person who solicits business either:
30 (I) by employees, independent contractors, agents or other represen-
31 tatives; or
32 (II) by distribution of catalogs or other advertising matter, without
33 regard to whether such distribution is the result of regular or system-
34 atic solicitation, if such person has some additional connection with
35 the state which satisfies the nexus requirement of the United States
36 constitution;
37 and by reason thereof makes sales to persons within the state of tangi-
38 ble personal property, digital products or services, the use of which is
39 taxed by this article;
40 (D) A person who makes sales of tangible personal property or
41 services, the use of which is taxed by this article, and who regularly
42 or systematically delivers such property or services in this state by
43 means other than the United States mail or common carrier;
44 (E) A person who regularly or systematically solicits business in this
45 state by the distribution, without regard to the location from which
46 such distribution originated, of catalogs, advertising flyers or
47 letters, or by any other means of solicitation of business, to persons
48 in this state and by reason thereof makes sales to persons within the
49 state of tangible personal property, the use of which is taxed by this
50 article, if such solicitation satisfies the nexus requirement of the
51 United States constitution;
52 (F) A person making sales of tangible personal property, the use of
53 which is taxed by this article, where such person retains an ownership
54 interest in such property and where such property is brought into this
55 state by the person to whom such property is sold and the person to whom
56 such property is sold becomes or is a resident or uses such property in
S. 60--A 131 A. 160--A
1 any manner in carrying on in this state any employment, trade, business
2 or profession;
3 (G) Any other person making sales to persons within the state of
4 tangible personal property, digital products or services, the use of
5 which is taxed by this article, who may be authorized by the commission-
6 er [of taxation and finance] to collect such tax by part [IV] four of
7 this article; and
8 (H) The state of New York, any of its agencies, instrumentalities,
9 public corporations (including a public corporation created pursuant to
10 agreement or compact with another state or Canada) or political subdivi-
11 sions when such entity sells services [or], property or digital products
12 of a kind ordinarily sold by private persons.
13 § 22. Subparagraph (ii) of paragraph 8 of subdivision (b) of section
14 1101 of the tax law, as amended by chapter 190 of the laws of 1990,
15 clause (A) as amended by chapter 75 of the laws of 1998, is amended to
16 read as follows:
17 (ii) (A) In addition, when in the opinion of the commissioner it is
18 necessary for the efficient administration of this article to treat any
19 salesman, representative, peddler or canvasser as the agent of the
20 vendor, distributor, supervisor or employer under whom he or she oper-
21 ates or from whom he or she obtains tangible personal property or
22 digital products sold by him or her, or for whom he or she solicits
23 business, the commissioner may, in his or her discretion, treat such
24 agent as the vendor jointly responsible with his or her principal,
25 distributor, supervisor or employer for the collection and payment over
26 of the tax. An unaffiliated person providing fulfillment services to a
27 purchaser shall not be treated as a vendor by the commissioner under
28 this paragraph with respect to such activity. For purposes of this
29 clause, persons are affiliated persons with respect to each other where
30 one of such persons has an ownership interest of more than five percent,
31 whether direct or indirect, in the other, or where an ownership interest
32 of more than five percent, whether direct or indirect, is held in each
33 of such persons by another person or by a group of other persons which
34 are affiliated persons with respect to each other.
35 (B) A person shall be deemed a vendor of [the services enumerated in
36 paragraph nine of subdivision (c)] a digital product subject to tax
37 under subdivision (g) of section eleven hundred five of this article,
38 liable for all the obligations of a vendor, including the collection,
39 reporting and remittance of the tax imposed under this article and
40 possessing all the rights of a vendor including the right to an exclu-
41 sion or a credit or refund of tax as provided in subdivision (e) of
42 section eleven hundred thirty-two of this article, with respect to [such
43 services] the digital products which are provided by a vendor thereof
44 and are subject to taxation under this article, where such person, its
45 affiliate or agent bills, on behalf of such vendor, either (I) as part
46 of, or as a schedule to, the statement of such person to its purchasers
47 or (II) separately (without regard to whether or not such person has
48 customers of its own), [such enumerated services] a digital product
49 provided by such vendor. For the purpose of this paragraph, "affiliate"
50 means an entity which directly, indirectly or constructively controls a
51 vendor of [such enumerated services] digital products or is controlled
52 by such vendor or is under the control of, along with such vendor, a
53 common parent. Provided, however, the provisions of this clause shall
54 not in any way be construed to otherwise limit or remove the obligations
55 and liabilities of any person with respect to the tax imposed by this
56 article.
S. 60--A 132 A. 160--A
1 § 23. Clause (B) of subparagraph (v) of paragraph 8 of subdivision (b)
2 of section 1101 of the tax law, as amended by chapter 75 of the laws of
3 1998, is amended to read as follows:
4 (B) a person who is not otherwise a vendor who owns tangible personal
5 property or a digital product located on the premises of an unaffiliated
6 person performing fulfillment services for such person.
7 For purposes of this subparagraph, persons are affiliated persons with
8 respect to each other where one of such persons has an ownership inter-
9 est of more than five percent, whether direct or indirect, in the other,
10 or where an ownership interest of more than five percent, whether direct
11 or indirect, is held in each of such persons by another person or by a
12 group of other persons which are affiliated persons with respect to each
13 other.
14 § 24. Subparagraph (vi) of paragraph 8 of subdivision (b) of section
15 1101 of the tax law, as added by section 1 of part OO-1 of chapter 57 of
16 the laws of 2008, is amended to read as follows:
17 (vi) For purposes of subclause (I) of clause (C) of subparagraph (i)
18 of this paragraph, a person making sales of tangible personal property,
19 digital products or services taxable under this article ("seller") shall
20 be presumed to be soliciting business through an independent contractor
21 or other representative if the seller enters into an agreement with a
22 resident of this state under which the resident, for a commission or
23 other consideration, directly or indirectly refers potential customers,
24 whether by a link on an internet website or otherwise, to the seller, if
25 the cumulative gross receipts from sales by the seller to customers in
26 the state who are referred to the seller by all residents with this type
27 of an agreement with the seller is in excess of ten thousand dollars
28 during the preceding four quarterly periods ending on the last day of
29 February, May, August, and November. This presumption may be rebutted by
30 proof that the resident with whom the seller has an agreement did not
31 engage in any solicitation in the state on behalf of the seller that
32 would satisfy the nexus requirement of the United States constitution
33 during the four quarterly periods in question. Nothing in this subpara-
34 graph shall be construed to narrow the scope of the terms independent
35 contractor or other representative for purposes of subclause (I) of
36 clause (C) of subparagraph (i) of this paragraph.
37 § 25. Paragraph 12 of subdivision (b) of section 1101 of the tax law,
38 as amended by chapter 220 of the laws of 2000, is amended to read as
39 follows:
40 (12) Promotional materials. Any advertising literature, other related
41 tangible personal property or digital products (whether or not personal-
42 ized by the recipient's name or other information uniquely related to
43 such person) and envelopes used exclusively to deliver the same. Such
44 other related tangible personal property [includes] and digital products
45 include, but [is] are not limited to, free gifts, complimentary maps or
46 other items given to travel club members, applications, order forms and
47 return envelopes with respect to such advertising literature, annual
48 reports, prospectuses, promotional displays and Cheshire labels but does
49 not include invoices, statements and the like. Promotional materials
50 shall also include paper or ink furnished to a printer for use in
51 providing the services of producing, printing or imprinting promotional
52 materials or in producing, printing or imprinting promotional materials,
53 where such paper and ink become a physical component part of the promo-
54 tional materials and such printer sells such services or such promo-
55 tional materials to the person who furnished the paper and ink to such
56 printer.
S. 60--A 133 A. 160--A
1 § 26. Paragraph 2 of subdivision (d) of section 1103 of the tax law,
2 as added by chapter 2 of the laws of 1995, is amended to read as
3 follows:
4 (2) On or before the twelfth day of each month, after reserving such
5 amount for such refunds and such costs, the commissioner shall determine
6 the amount of all revenues so received during the prior month as a
7 result of the taxes, interest and penalties so imposed and, in addition,
8 on or before the last day of June and December the commissioner shall
9 determine in like manner the amount of such moneys received during and
10 including the first twenty-five days of said months. The commissioner
11 shall determine the proportion of revenues attributable to receipts for
12 the period for which the determination is made pursuant to the preceding
13 sentence from taxes on sales and uses of tangible personal property,
14 digital products and services and rent and amusement charges imposed by
15 this article and pursuant to the authority of article twenty-nine of
16 this chapter and administered by the commissioner which is payable to
17 each jurisdiction determined without regard to this section. The amount
18 of revenues so determined pursuant to this section shall be deposited
19 and distributed by the comptroller in accordance with the same percent-
20 age amount to which a jurisdiction is entitled determined without regard
21 to this section. Where the amount so determined in any distribution from
22 such taxes (other than the tax imposed by this section) is more or less
23 than the amount due, the amount of the overpayment or underpayment shall
24 be determined as soon after the discovery of the overpayment or under-
25 payment as is reasonably possible and subsequent determinations shall be
26 adjusted by subtracting the amount of any such overpayment from or by
27 adding the amount of any such underpayment to such number of subsequent
28 payments as the comptroller and the commissioner shall consider reason-
29 able in view of the amount of the overpayment or underpayment and all
30 other pertinent facts and circumstances. The commissioner shall not be
31 liable for any overestimate or underestimate of the amount of the
32 distribution. Nor shall the commissioner be liable for any inaccuracy in
33 any determination with respect to the amount of the distribution or any
34 required adjustment with respect to the distribution, but the commis-
35 sioner shall as soon as practicable after discovery of any error adjust
36 the next determination under this section to reflect any such error.
37 § 27. Paragraph 9 of subdivision (c) of section 1105 of the tax law,
38 as amended by chapter 170 of the laws of 1994, is amended to read as
39 follows:
40 (9) [(i) The furnishing or provision of an entertainment service or of
41 an information service (but not an information service subject to tax
42 under paragraph one of this subdivision), which is furnished, provided,
43 or delivered by means of telephony or telegraphy or telephone or tele-
44 graph service (whether intrastate or interstate) of whatever nature,
45 such as entertainment or information services provided through 800 or
46 900 numbers or mass announcement services or interactive information
47 network services. Provided, however, that in no event (i) shall the
48 furnishing or provision of an information service be taxed under this
49 paragraph unless it would otherwise be subject to taxation under para-
50 graph one of this subdivision if it were furnished by printed, mimeo-
51 graphed or multigraphed matter or by duplicating written or printed
52 matter in any other manner nor (ii) shall the provision of cable tele-
53 vision service to customers be taxed under this paragraph.
54 (ii)] Notwithstanding the rate and date set forth in the opening
55 undesignated paragraph of this section and notwithstanding the opening
56 undesignated paragraph of this subdivision, [on and after September
S. 60--A 134 A. 160--A
1 first, nineteen hundred ninety-three,] in addition to any other tax
2 imposed under this section, and in addition to any other tax or fee
3 imposed under any other provision of law, there is hereby imposed and
4 there shall be paid an additional tax at the rate of five percent upon
5 the receipts [which are subject to tax under subparagraph (i) of this
6 paragraph on the] from the furnishing or provision of an entertainment
7 or information service (but not an information service subject to tax
8 under paragraph one of this subdivision), which is furnished, provided,
9 or delivered by means of telephony or telegraphy or telephone or tele-
10 graph service (whether intrastate or interstate) of whatever nature,
11 such as entertainment or information services provided through 800 or
12 900 numbers or mass announcement services or interactive information
13 network services, and which is received by the customer exclusively in
14 an aural manner. Provided, however, that in no event (i) shall the
15 furnishing or provision of an information service be taxed under this
16 paragraph unless it would otherwise be subject to taxation under para-
17 graph one of this subdivision if it were furnished by printed, mimeo-
18 graphed or multigraphed matter or by duplicating written or printed
19 matter in any other manner nor (ii) shall the provision of cable tele-
20 vision service to customers be taxed under this paragraph. Such addi-
21 tional tax shall not be imposed by section eleven hundred seven, eleven
22 hundred eight or eleven hundred nine of this [article] part and shall
23 not be included among the taxes authorized to be imposed pursuant to the
24 authority of article twenty-nine of this chapter.
25 § 28. The closing paragraph of subdivision (c) of section 1105 of the
26 tax law, as amended by chapter 190 of the laws of 1990, is amended to
27 read as follows:
28 Wages, salaries and other compensation paid by an employer to an
29 employee for performing as an employee the services described in [para-
30 graphs (1) through (9) of this subdivision] subdivisions (c) and (g) of
31 this section are not receipts subject to the taxes imposed under such
32 [subdivision] subdivisions.
33 § 29. Clause 3 of subdivision (b) of section 1107 of the tax law, as
34 amended by chapter 651 of the laws of 1999, is amended to read as
35 follows:
36 (3) Where a sale of tangible personal property, a digital product or
37 services, including an agreement therefor, is made in a city in which
38 the taxes imposed by subdivision (a) of this section apply, but the
39 tangible personal property or digital product sold, the tangible
40 personal property upon which the services were performed or such service
41 is or will be delivered to the purchaser elsewhere, such sale will not
42 be subject to taxes imposed by such subdivision (a). However, if deliv-
43 ery occurs or will occur in any city where the tax imposed by such
44 subdivision (a) applies, a vendor will be required to collect from the
45 purchaser the sales or compensating use taxes imposed by this section.
46 For the purposes of this section delivery shall be deemed to include
47 transfer of possession to the purchaser and the receiving of the tangi-
48 ble personal property or of the service by the purchaser and, for a
49 digital product, delivery will be determined in accordance with the
50 rules in subdivision (g) of section eleven hundred five of this part.
51 § 30. Clause 5 of subdivision (b) of section 1107 of the tax law, as
52 amended by chapter 376 of the laws of 1989, is amended to read as
53 follows:
54 (5) Where a retail sales tax or a compensating use tax was legally due
55 and paid to any municipal corporation in this state, without any right
56 to a refund or credit thereof, with respect to the sale or use of tangi-
S. 60--A 135 A. 160--A
1 ble personal property, a digital product or any of the services subject
2 to sales or compensating use tax, if the use of such property, digital
3 product or services is then subject to the compensating use tax imposed
4 by this section and such tax is at a higher rate than the rate of tax
5 imposed by such municipal corporation, the tax imposed by this section
6 shall also apply but only to the extent of the difference in such rates.
7 § 31. Subdivision (b) of section 1108 of the tax law, as added by
8 chapter 168 of the laws of 1975, paragraph 1 as separately amended by
9 section 4 of part B and section 4 of part S of chapter 63 of the laws of
10 2000 and paragraph 3 as amended by chapter 651 of the laws of 1999, is
11 amended to read as follows:
12 (b) Exceptions. (1) Notwithstanding any provision of law to the
13 contrary, the receipts from the following shall be exempt from the tax
14 on retail sales and the compensating use tax imposed by this section:
15 All sales of tangible personal property or digital products for use or
16 consumption directly and predominantly in the production of tangible
17 personal property, digital products, gas, electricity, refrigeration or
18 steam, for sale, by manufacturing, processing, generating, assembling,
19 refining, mining or extracting; and all sales of tangible personal prop-
20 erty or digital products for use or consumption predominantly either in
21 the production of tangible personal property, for sale, by farming or in
22 a commercial horse boarding operation, or in both.
23 (2) The transitional provisions contained in section eleven hundred
24 six of this part shall not apply to the taxes imposed by this section.
25 (3) Where a sale of tangible personal property, a digital product or
26 services, including an agreement therefor, is made in a city in which
27 the taxes imposed by subdivision (a) of this section apply, but the
28 tangible personal property or digital product sold, the tangible
29 personal property upon which the services were performed or such service
30 is or will be delivered to the purchaser elsewhere, such sale will not
31 be subject to taxes imposed by such subdivision (a). However, if deliv-
32 ery occurs or will occur in any city where the tax imposed by such
33 subdivision (a) applies, a vendor will be required to collect from the
34 purchaser[,] the sales or compensating use taxes imposed by this
35 section. For the purposes of this section delivery shall be deemed to
36 include transfer of possession to the purchaser and the receiving of the
37 tangible personal property or of the service by the purchaser and, for a
38 digital product, delivery will be determined in accordance with the
39 rules in subdivision (g) of section eleven hundred five of this part.
40 (4) The provisions of section twelve hundred fourteen of this chapter
41 shall be applicable to this section, but any reference in that section
42 to a local sales or use tax imposed by a city shall mean the additional
43 taxes imposed by subdivision (a) [hereof] of this section.
44 (5) Where a retail sales tax or a compensating use tax was legally due
45 and paid to any municipal corporation in this state, without any right
46 to a refund or credit thereof, with respect to the sale or use of tangi-
47 ble personal property, a digital product or any of the services subject
48 to sales or compensating use tax, if the use of such tangible personal
49 property, digital product or services is then subject to the compensat-
50 ing use tax imposed by this section and such tax is at a higher rate
51 than the rate of tax imposed by such municipal corporation, the tax
52 imposed by this section shall also apply but only to the extent of the
53 difference in such rates. For purposes of this subdivision, a payment to
54 the [tax commission] commissioner of a tax imposed by a municipal corpo-
55 ration shall be deemed a payment to such municipal corporation.
S. 60--A 136 A. 160--A
1 § 32. Subdivision (c) of section 1109 of the tax law, as amended by
2 chapter 651 of the laws of 1999, is amended to read as follows:
3 (c) Deliveries outside the district; deliveries within the district of
4 property sold or serviced elsewhere. Where a sale of tangible personal
5 property, a digital product or services, including an agreement there-
6 for, is made in the district in which the taxes imposed by this section
7 apply, but the tangible personal property or digital product sold, the
8 tangible personal property upon which the services were performed or
9 such service is or will be delivered to the purchaser elsewhere, such
10 sale will not be subject to taxes imposed by this section. However, if
11 delivery occurs or will occur in the district where the tax imposed by
12 this section applies, a vendor will be required to collect from the
13 purchaser the sales or compensating use taxes imposed by this section.
14 For the purposes of this section, delivery shall be deemed to include
15 transfer of possession to the purchaser and the receiving of the tangi-
16 ble personal property or of the service by the purchaser and, for a
17 digital product, delivery will be determined in accordance with the
18 rules in subdivision (g) of section eleven hundred five of this part.
19 The provisions of section twelve hundred fourteen of this chapter shall
20 be applicable to this section, but any reference in that section to a
21 local sales or use tax imposed by a city, county or school district
22 shall mean the additional taxes imposed by this section.
23 § 33. Subdivision (a) of section 1110 of the tax law, as amended by
24 section 28 of part Y of chapter 63 of the laws of 2000, is amended to
25 read as follows:
26 (a) Except to the extent that property or services have already been
27 or will be subject to the sales tax under this article, there is hereby
28 imposed on every person a use tax for the use within this state on and
29 after June first, nineteen hundred seventy-one except as otherwise
30 exempted under this article, (A) of any tangible personal property or
31 digital product purchased at retail, (B) of any tangible personal prop-
32 erty or digital product (other than computer software used by the author
33 or other creator) manufactured, processed or assembled by the user, (i)
34 if items of the same kind of tangible personal property or digital prod-
35 uct are offered for sale by him or her in the regular course of business
36 or (ii) if items are used as such or incorporated into a structure,
37 building or real property by a contractor, subcontractor or repairman in
38 erecting structures or buildings, or building on, or otherwise adding
39 to, altering, improving, maintaining, servicing or repairing real prop-
40 erty, property or land, as the terms real property, property or land are
41 defined in the real property tax law, if items of the same kind are not
42 offered for sale as such by such contractor, subcontractor or repairman
43 or other user in the regular course of business, (C) of any of the
44 services described in paragraphs [(1), (7) and (8)] one, seven and eight
45 of subdivision (c) of section eleven hundred five of this part, (D) of
46 any tangible personal property or digital product, however acquired,
47 where not acquired for purposes of resale, upon which any of the
48 services described in paragraphs [(2), (3) and (7)] two, three and seven
49 of subdivision (c) of section eleven hundred five of this part have been
50 performed, (E) of any telephone answering service described in subdivi-
51 sion (b) of section eleven hundred five of this part, (F) of any comput-
52 er software or digital product written or otherwise created by the user
53 if the user offers software or a digital product of a similar kind for
54 sale as such or as a component part of other property in the regular
55 course of business, (G) of any prepaid telephone calling service, and
S. 60--A 137 A. 160--A
1 (H) of any gas or electricity described in subdivision (b) of section
2 eleven hundred five of this part.
3 § 34. Subdivision (b) of section 1110 of the tax law, as separately
4 amended by sections 19, 158 and 161 of chapter 166 of the laws of 1991,
5 is amended to read as follows:
6 (b) For purposes of clause (A) of subdivision (a) of this section, the
7 tax shall be at the rate of four percent of the consideration given or
8 contracted to be given for such tangible personal property or digital
9 product, or for the use of such tangible personal property or digital
10 product, including any charges for shipping or delivery as described in
11 paragraph three of subdivision (b) of section eleven hundred one of this
12 article, but excluding any credit for tangible personal property
13 accepted in part payment and intended for resale.
14 § 35. Subdivision (c) of section 1110 of the tax law, as amended by
15 section 1 of part E of chapter 407 of the laws of 1999, is amended to
16 read as follows:
17 (c) For purposes of subclause (i) of clause (B) of subdivision (a) of
18 this section, the tax shall be at the rate of four percent of the price
19 at which items of the same kind of tangible personal property or digital
20 product are offered for sale by the user, and the mere storage, keeping,
21 retention or withdrawal from storage of tangible personal property or a
22 digital product by the person who manufactured, processed or assembled
23 such property or digital product shall not be deemed a taxable use by
24 [him] that person; provided, however, that if the user uses such an item
25 itself on its own premises (not including making a gift of such tangible
26 personal property or digital product), solely in the conduct of the
27 user's own business operations, and the item retains its characteristic
28 as either tangible personal property or a digital product when so used,
29 the tax shall be at the rate, and on the consideration, described in
30 subdivision (d) of this section.
31 § 36. Subdivision (f) of section 1110 of the tax law, as separately
32 amended by sections 19, 158 and 161 of chapter 166 of the laws of 1991,
33 is amended to read as follows:
34 (f) For purposes of clauses (C), (D), and (E) of subdivision (a) of
35 this section, the tax shall be at the rate of four percent of the
36 consideration given or contracted to be given for the service, including
37 the consideration for any tangible personal property or digital product
38 transferred in conjunction with the performance of the service and also
39 including any charges for shipping and delivery of the property so
40 transferred and of the tangible personal property or digital product
41 upon which the service was performed as such charges are described in
42 paragraph three of subdivision (b) of section eleven hundred one of this
43 article.
44 § 37. Subdivision (g) of section 1110 of the tax law, as separately
45 amended by sections 19, 158 and 161 of chapter 166 of the laws of 1991,
46 is amended to read as follows:
47 (g) For purposes of clause (F) of subdivision (a) of this section, the
48 tax shall be at the rate of four percent of the consideration given or
49 contracted to be given for the tangible personal property which consti-
50 tutes the blank medium, such as disks or tapes, used in conjunction with
51 the software or digital product, or for the use of such property, and
52 the mere storage, keeping, retention or withdrawal from storage of
53 computer software or digital products described in such clause (F) by
54 its author or other creator shall not be deemed a taxable use by such
55 person.
S. 60--A 138 A. 160--A
1 § 38. Subdivision (h) of section 1110 of the tax law, as added by
2 chapter 651 of the laws of 1999, is amended to read as follows:
3 (h) For purposes of clause (G) of subdivision (a) of this section, the
4 tax shall be at the rate of four percent of the consideration given or
5 contracted to be given for the service, including the consideration for
6 any tangible personal property or digital products transferred in
7 conjunction with the service and also including any charges for shipping
8 and delivery of the tangible personal property or digital product so
9 transferred as such charges are described in paragraph three of subdivi-
10 sion (b) of section eleven hundred one of this article; provided that,
11 if the user offers like services for sale in the regular course of busi-
12 ness, the tax shall be at the rate of four percent of the price at which
13 the user offers such like services for sale.
14 § 39. Subdivision (a) of section 1111 of the tax law, as amended by
15 chapter 473 of the laws of 1969, is amended to read as follows:
16 (a) The retail sales tax imposed under subdivision (a) of section
17 eleven hundred five and the compensating use tax imposed under section
18 eleven hundred ten of this part, when computed in respect to tangible
19 personal property or a digital product wherever manufactured, processed
20 or assembled and used by such manufacturer, processor or assembler in
21 the regular course of business within this state, shall be based on the
22 price at which items of the same kind of tangible personal property or
23 digital product are offered for sale by him or her, except to the extent
24 otherwise provided in section eleven hundred ten of this [chapter] part.
25 § 40. Subdivision (b) of section 1111 of the tax law, as added by
26 chapter 93 of the laws of 1965, is amended to read as follows:
27 (b) Tangible personal property or a digital product, which has been
28 purchased by a resident of New York state outside of this state for use
29 outside of this state and subsequently becomes subject to the compensat-
30 ing use tax imposed under this article, shall be taxed on the basis of
31 the purchase price of such property, provided, however:
32 (1) That where a taxpayer affirmatively shows that the tangible
33 personal property or digital product was used outside [such] this state
34 by him or her for more than six months prior to its use within this
35 state, [such] the tangible personal property or digital product shall be
36 taxed on the basis of current market value of the tangible personal
37 property or digital product at the time of its first use within this
38 state. The value of [such] the tangible personal property or digital
39 product, for compensating use tax purposes, may not exceed its cost.
40 (2) That the compensating use tax on such tangible personal property
41 or digital product brought into this state (other than for complete
42 consumption or for incorporation into real property located in this
43 state) and used in the performance of a contract or sub-contract within
44 this state by a purchaser or user for a period of less than six months
45 may be based, at the option of the taxpayer, on the fair rental value of
46 such tangible personal property or digital product for the period of use
47 within this state.
48 § 41. Subdivision (l) of section 1111 of the tax law, as added by
49 section 10 of part S of chapter 85 of the laws of 2002, is amended to
50 read as follows:
51 (l) (1) Receipts from the sale of mobile telecommunications service
52 provided by a home service provider shall include "charges for mobile
53 telecommunications services." Such term shall mean any charge by a home
54 service provider to its mobile telecommunications customer for (A)
55 commercial mobile radio service, and shall include property [and],
56 services and digital products that are ancillary to the provision of
S. 60--A 139 A. 160--A
1 commercial mobile radio service (such as dial tone, voice service,
2 directory information, call forwarding, caller-identification and call-
3 waiting), and (B) any service [and], property or digital product
4 provided therewith.
5 (2) With respect to services [or], property or digital products
6 described in subparagraph (B) of paragraph one of this subdivision,
7 internet access service, any mobile telecommunications service which the
8 mobile telecommunications customer originates in a foreign country to
9 the extent included in the fixed periodic charge, any interstate or
10 international telephony or telegraphy or telephone or telegraph service
11 of whatever nature which is not a voice service, and any property,
12 digital product or service which is not telephony or telegraphy or tele-
13 phone or telegraph service of whatever nature, a home service provider
14 shall collect and pay over tax, and a mobile telecommunications customer
15 shall pay such tax, on receipts from any charge that is aggregated with
16 and not separately stated from other charges for mobile telecommuni-
17 cations service. Provided, however, if such home service provider uses
18 an objective, reasonable and verifiable standard for identifying each of
19 the components of the charge for mobile telecommunications service, then
20 such home service provider may separately account for and quantify the
21 amount of each such component charge. If a home service provider chooses
22 to so separately account for and quantify and separately sells any such
23 property, digital product or service, then the charge for such property,
24 digital product or service shall be based upon the price for such prop-
25 erty, digital product or service as separately sold. If a home service
26 provider chooses to so separately account for and quantify and does not
27 separately sell such property, digital product or service, then the
28 charge for such property, digital product or service shall be based upon
29 the prevailing retail price of comparable property, digital product or
30 service sold separately by other home service providers. In any case,
31 the charge for such property, digital product or service shall be
32 reasonable and proportionate to the total charge to the mobile telecom-
33 munications customer. Such charges for such services [or], property or
34 digital products, as the case may be, will not constitute receipts from
35 charges for mobile telecommunications services subject to tax under
36 subdivision (b) of section eleven hundred five of this article. Nothing
37 herein shall be construed to exempt from tax or subject to tax any such
38 service [or], property or digital product otherwise subject to tax or
39 exempt from tax under this article.
40 (3) (A) Any charge for a service [or], property or digital product
41 billed by or for a mobile telecommunications customer's home service
42 provider shall be deemed to be provided by such mobile telecommuni-
43 cations customer's home service provider.
44 (B) Charges for mobile telecommunications service that are provided or
45 deemed to be provided by a mobile telecommunications customer's home
46 service provider shall be sourced to the taxing jurisdiction where the
47 mobile telecommunications customer's place of primary use is located,
48 regardless of where the mobile telecommunications service originates,
49 terminates or passes through.
50 § 42. Subdivision (a) of section 1112 of the tax law, as added by
51 section 6 of part K of chapter 61 of the laws of 2005, is amended to
52 read as follows:
53 (a) Where tangible personal property, digital products or services
54 subject to sales or compensating use tax have been purchased on or from
55 a qualified Indian reservation, as defined in section four hundred
56 seventy of this chapter, the purchaser shall not be relieved of his or
S. 60--A 140 A. 160--A
1 her liability to pay the tax due. Such tax due and not collected shall
2 be paid by the purchaser directly to the department.
3 § 43. The opening paragraph of subdivision (a) of section 1115 of the
4 tax law, as added by chapter 93 of the laws of 1965, is amended to read
5 as follows:
6 Receipts from the following shall be exempt from the tax on retail
7 sales imposed under [subdivision] subdivisions (a) and (g) of section
8 eleven hundred five of this article and the compensating use tax imposed
9 under section eleven hundred ten of this article:
10 § 44. Clause (A) of paragraph 6 of subdivision (a) of section 1115 of
11 the tax law, as amended by section 5 of part B of chapter 63 of the laws
12 of 2000, is amended to read as follows:
13 (A) Tangible personal property or a digital product, whether or not
14 incorporated in a building or structure, for use or consumption predomi-
15 nantly either in the production for sale of tangible personal property
16 by farming or in a commercial horse boarding operation, or in both.
17 § 45. Paragraph 7 of subdivision (a) of section 1115 of the tax law,
18 as added by chapter 93 of the laws of 1965, is amended to read as
19 follows:
20 (7) Tangible personal property or a digital product sold by a morti-
21 cian, undertaker or funeral director. However, all tangible personal
22 property or digital products sold to a mortician, undertaker or funeral
23 director for use in the conducting of funerals shall not be deemed a
24 sale for resale within the meaning of paragraph [(4)] four of subdivi-
25 sion (b) of section eleven hundred one of this [chapter] article and
26 shall not be exempt from the retail sales tax.
27 § 46. Paragraph 8 of subdivision (a) of section 1115 of the tax law,
28 as added by chapter 93 of the laws of 1965, is amended to read as
29 follows:
30 (8) Commercial vessels primarily engaged in interstate or foreign
31 commerce and tangible personal property or digital products used by or
32 purchased for the use of such vessels for fuel, provisions, supplies,
33 maintenance and repairs (other than articles purchased for the original
34 equipping of a new ship).
35 § 47. Paragraph 10 of subdivision (a) of section 1115 of the tax law,
36 as amended by chapter 851 of the laws of 1974, is amended to read as
37 follows:
38 (10) Tangible personal property or a digital product purchased for use
39 or consumption directly and predominantly in research and development in
40 the experimental or laboratory sense. Such research and development
41 shall not be deemed to include the ordinary testing or inspection of
42 materials or products for quality control, efficiency surveys, manage-
43 ment studies, consumer surveys, advertising, promotions or research in
44 connection with literary, historical or similar projects.
45 § 48. Paragraph 12-a of subdivision (a) of section 1115 of the tax
46 law, as added by section 7 of part S of chapter 63 of the laws of 2000,
47 is amended to read as follows:
48 (12-a) Tangible personal property or a digital product for use or
49 consumption directly and predominantly in the receiving, initiating,
50 amplifying, processing, transmitting, retransmitting, switching or moni-
51 toring of switching of telecommunications services for sale or internet
52 access services for sale or any combination thereof. Such tangible
53 personal property or a digital product exempt under this subdivision
54 shall include, but not be limited to, tangible personal property or a
55 digital product used or consumed to upgrade systems to allow for the
56 receiving, initiating, amplifying, processing, transmitting, retransmit-
S. 60--A 141 A. 160--A
1 ting, switching or monitoring of switching of telecommunications
2 services for sale or internet access services for sale or any combina-
3 tion thereof. As used in this paragraph, the term "telecommunications
4 services" shall have the same meaning as defined in paragraph (g) of
5 subdivision one of section one hundred eighty-six-e of this chapter.
6 § 49. Paragraph 21 of subdivision (a) of section 1115 of the tax law,
7 as added by chapter 773 of the laws of 1978, is amended to read as
8 follows:
9 (21) Commercial aircraft primarily engaged in intrastate, interstate
10 or foreign commerce, machinery or equipment to be installed on such
11 aircraft and property or a digital products used by or purchased for the
12 use of such aircraft for maintenance and repairs and flight simulators
13 purchased by commercial airlines.
14 § 50. Paragraph 24 of subdivision (a) of section 1115 of the tax law,
15 as added by chapter 799 of the laws of 1985, is amended to read as
16 follows:
17 (24) Fishing vessels used directly and predominantly in the harvesting
18 of fish for sale, and property or digital products used by or purchased
19 for the use of such vessels for fuel, provisions, supplies, maintenance
20 and repairs. For the purpose of this paragraph the term fishing vessel
21 shall not include any vessel used predominantly for sport fishing
22 purposes.
23 § 51. Paragraph 28 of subdivision (a) of section 1115 of the tax law,
24 as added by chapter 166 of the laws of 1991, is amended to read as
25 follows:
26 (28) Computer software designed and developed by the author or creator
27 to the specifications of a specific purchaser which is transferred
28 directly or indirectly to a corporation which is a member of an affil-
29 iated group of corporations [within the meaning of subparagraph six of
30 paragraph (b) of subdivision seventeen of section two hundred eight of
31 this chapter except for clauses (ii) and (iii) of such subparagraph]
32 that includes such purchaser, or to a partnership in which such purchas-
33 er and other members of such affiliated group have at least a fifty
34 percent capital or profits interest (but only if the transfer is not in
35 pursuance of a plan having as its principal purpose the avoidance or
36 evasion of tax under this article), but in no case including computer
37 software which is pre-written, as defined in paragraph six of subdivi-
38 sion (b) of section eleven hundred one of this article and available to
39 be sold to customers in the ordinary course of the seller's business.
40 "Affiliated group" has the same meaning that term has in section 1504 of
41 the internal revenue code, except that references to "at least eighty
42 percent" in that section must be read as "more than fifty percent."
43 § 52. Paragraph 35 of subdivision (a) of section 1115 of the tax law,
44 as amended by section 1 of part HH of chapter 407 of the laws of 1999,
45 is amended to read as follows:
46 (35) Computer system hardware used or consumed directly and predomi-
47 nantly in designing and developing computer software or digital products
48 for sale or in providing the service, for sale, of designing and devel-
49 oping internet websites.
50 § 53. Paragraph 38 of subdivision (a) of section 1115 of the tax law,
51 as added by section 1 of part T of chapter 63 of the laws of 2000, is
52 amended to read as follows:
53 (38) (A) Machinery or equipment or other tangible personal property
54 (including parts, tools and supplies) or a digital product for use or
55 consumption by a broadcaster directly and predominantly in the
56 production (including post-production) of live or recorded programs
S. 60--A 142 A. 160--A
1 which are used or consumed by a broadcaster predominantly for the
2 purpose of broadcast over-the-air by such broadcaster or transmission
3 through a cable television or direct broadcast satellite system by such
4 broadcaster. Tangible personal property or a digital product, which is
5 described in the preceding sentence, and which is leased by a broadcast-
6 er to another person for that person's use or consumption directly and
7 predominantly in the production (including post-production) of such live
8 or recorded programs by such person, shall be deemed to be used or
9 consumed by the lessor for purposes of applying the directly and predom-
10 inantly requirement of this subparagraph.
11 (B) Machinery or equipment or other tangible personal property
12 (including parts, tools and supplies) or a digital product for use or
13 consumption by a broadcaster directly and predominantly in the trans-
14 mission of live or recorded programs over-the-air or through a cable
15 television or direct broadcast satellite system by such broadcaster.
16 Tangible personal property or a digital product, which is described in
17 the preceding sentence, and which is leased by a broadcaster to another
18 person for that person's use or consumption directly and predominantly
19 in the transmission of such live or recorded programs by such person,
20 shall be deemed to be used or consumed by the lessor for purposes of
21 applying the directly and predominantly requirement of this subpara-
22 graph.
23 (C) For purposes of this paragraph: (i) the term "broadcaster" means a
24 television or radio station licensed by the federal communications
25 commission, a television or radio broadcast network or a cable tele-
26 vision network. The term "television or radio broadcast network" means
27 an organization which produces and/or purchases programs intended for
28 transmission by affiliated television or radio stations licensed by the
29 federal communications commission and which has distribution facilities
30 or circuits available to such affiliated stations during all or some
31 portion of one or more days during each week. The term "cable television
32 network" means an organization which produces and/or purchases programs
33 intended for transmission either by direct broadcast satellite systems
34 or by cable systems pursuant to an affiliation or similar agreement and
35 which has distribution facilities or circuits available to such direct
36 broadcast satellite systems or such cable systems during all or some
37 portion of one or more days during each week. For the purpose of
38 subparagraph (B) of this paragraph, the term "broadcaster" shall not
39 include cable system operators and direct broadcast satellite system
40 operators. Provided, however, for the purpose of subparagraph (A) of
41 this paragraph, such term shall also include a cable system operator or
42 a direct broadcast satellite system operator solely with respect to
43 machinery or equipment or other tangible personal property (including
44 parts, tools and supplies) or a digital product for use or consumption
45 by it directly and predominantly in the production (including post-pro-
46 duction) of live or recorded programs intended for transmission to its
47 viewers over its system; (ii) the term "programs" means any performance,
48 event, play, story or literary, musical, artistic or other work used for
49 entertainment or educational purposes, including but not limited to
50 news, news specials, sporting events, game shows, talk shows and commer-
51 cials; and (iii) the term "recorded programs" means any program
52 contained on film, tape, disc or any other [physical] media.
53 § 54. Paragraph 39 of subdivision (a) of section 1115 of the tax law,
54 as added by chapter 66 of the laws of 2002, is amended to read as
55 follows:
S. 60--A 143 A. 160--A
1 (39) Tangible personal property or a digital product for use or
2 consumption directly and predominantly in the production, including
3 editing, dubbing and mixing, of a film for sale regardless of the medium
4 by means of which the film is conveyed to a purchaser. For purposes of
5 this paragraph, the term "film" means feature films, documentary films,
6 shorts, television films, television commercials and similar
7 productions.
8 § 55. Subdivision (d) of section 1115 of the tax law, as amended by
9 chapter 190 of the laws of 1990, is amended to read as follows:
10 (d) Services otherwise taxable under paragraph [(1), (2), (3), (7) or
11 (8)] one, two, three, seven or eight of subdivision (c) of section elev-
12 en hundred five of this article shall be exempt from tax under this
13 article if the tangible property or digital product upon which the
14 services were performed is delivered to the purchaser outside this state
15 for use outside this state.
16 § 56. Subdivision (l) of section 1115 of the tax law, as added by
17 chapter 185 of the laws of 1987, is amended to read as follows:
18 (l) Tangible personal property or a digital product manufactured,
19 processed or assembled and donated by the manufacturer, processor or
20 assembler to an organization described in subdivision (a) of section
21 eleven hundred sixteen shall be exempt from tax under this article
22 provided that the manufacturer, processor or assembler offers the same
23 kind of tangible personal property or digital product for sale in the
24 regular course of business and provided further that the manufacturer,
25 processor or assembler has not made any other use of the tangible
26 personal property or digital product which is donated. Nothing in this
27 subdivision shall be construed to allow a refund or credit of tax prop-
28 erly paid pursuant to this article.
29 § 57. Paragraph 7 of subdivision (n) of section 1115 of the tax law,
30 as added by chapter 220 of the laws of 2000, is amended to read as
31 follows:
32 (7) Mechanicals, layouts, artwork, photographs, color separations and
33 like property, whether or not in tangible form, shall be exempt from tax
34 under this article where such property is purchased, manufactured, proc-
35 essed or assembled by a person who furnishes such property to a printer
36 and the printer uses such property directly and predominantly in the
37 production of promotional materials exempt under paragraph four of this
38 subdivision, or in performing services exempt under paragraph five of
39 this subdivision, for sale by such printer to the person who furnished
40 such property to the printer.
41 § 58. Paragraph 8 of subdivision (n) of section 1115 of the tax law,
42 as added by chapter 309 of the laws of 1996 and as renumbered by chapter
43 220 of the laws of 2000, is amended to read as follows:
44 (8) Nothing in this subdivision shall be construed to exempt tangible
45 personal property or a digital product (i) purchased by a person (other
46 than exempt promotional materials described in paragraph four of this
47 subdivision) or (ii) manufactured, processed or assembled by the
48 manufacturer, processor or assembler, who furnishes such tangible
49 personal property or digital product to the vendor of promotional mate-
50 rials exempt under paragraph one or four of this subdivision to be
51 included as free gifts with such exempt promotional materials to be
52 mailed or shipped to such purchaser's or such manufacturer's, process-
53 or's or assembler's customers or prospective customers or who otherwise
54 uses such tangible personal property or digital product in this state,
55 for example, by giving or donating the property as free gifts to another
56 person, unless such tangible personal property or digital product is
S. 60--A 144 A. 160--A
1 mailed, shipped or otherwise distributed from a point within this state
2 to such customers or prospective customers located outside this state
3 for use outside this state.
4 § 59. Subdivision (o) of section 1115 of the tax law, as added by
5 chapter 166 of the laws of 1991, is amended to read as follows:
6 (o) Services otherwise taxable under subdivision (c) of section eleven
7 hundred five or under section eleven hundred ten of this article shall
8 be exempt from tax under this article where performed on computer soft-
9 ware of any nature; provided, however, that where such services are
10 provided to a customer in conjunction with the sale of tangible personal
11 property or a digital product, any charge for such services shall be
12 exempt only when such charge is reasonable and separately stated on an
13 invoice or other statement of the price given to the purchaser.
14 § 60. Subdivision (x) of section 1115 of the tax law, as added by
15 section 3 of part C of chapter 407 of the laws of 1999, is amended to
16 read as follows:
17 (x) Receipts from every sale of, and consideration given or contracted
18 to be given for, or for the use of, the following tangible personal
19 property, digital products and services shall be exempt from the taxes
20 imposed by this article:
21 (1) Tangible personal property or a digital product for use or
22 consumption directly and predominantly in production of live dramatic or
23 musical arts performances in a theater or other similar place of assem-
24 bly (but not including a roof garden, cabaret or other similar place),
25 with a seating capacity of one hundred or more chairs that are rigidly
26 anchored to the construction or fixed in place so as to prevent movement
27 in any direction, but only where it can be shown at the time [such] the
28 tangible personal property or digital product is purchased that such
29 performances are to be presented to the public in such theater or other
30 similar place on a regular basis of at least five performances per week
31 for a period of at least two consecutive weeks, the content of each such
32 performance shall be the same and a charge is or is to be made for
33 admission to the place where such performances occur. For purposes of
34 this subdivision, the term "place of assembly" shall mean a place of
35 assembly with a stage in which scenery and scenic elements are used, as
36 described in section 27-232 and subdivision (a) of section 27-255 of the
37 administrative code of the city of New York (as such section and subdi-
38 vision [exist] existed on January first, nineteen hundred ninety-eight),
39 and for which an approved seating plan is required to be kept, as
40 described in section 27-528 of the administrative code of the city of
41 New York (as such section [exists] existed on January first, nineteen
42 hundred ninety-eight), whether or not such theater or other similar
43 place is located in such city. Nothing in this paragraph shall be
44 construed to exempt tangible personal property which is permanently
45 affixed to, or becomes an integral component part of, a structure,
46 building, or real property.
47 (2) Services described in paragraph two or three of subdivision (c) of
48 section eleven hundred five of this article when rendered with respect
49 to tangible personal property or a digital product exempt under para-
50 graph one of this subdivision.
51 § 61. Paragraph 1 of subdivision (z) of section 1115 of the tax law,
52 as amended by section 17 of part CC of chapter 85 of the laws of 2002,
53 is amended to read as follows:
54 (1) Receipts from the retail sale of tangible personal property
55 described in subdivision (a) of section eleven hundred five of this
56 article, receipts from every sale of services described in subdivisions
S. 60--A 145 A. 160--A
1 (b) and (c) of such section [eleven hundred five], receipts from the
2 retail sale of pre-written computer software, whether subject to tax
3 under subdivision (a) or (g) of such section, and consideration given or
4 contracted to be given for, or for the use of, such tangible personal
5 property [or], services [shall be] or pre-written computer software are
6 exempt from the taxes imposed by this article where such tangible
7 personal property [or], services or pre-written computer software are
8 sold to a qualified empire zone enterprise, provided that (i) such
9 tangible personal property or tangible personal property upon which such
10 a service has been performed, or such service (other than a service
11 described in subdivision (b) of section eleven hundred five of this
12 article) or the pre-written computer software is directly and predomi-
13 nantly, or such a service described in clause (A) or (D) of paragraph
14 one of such subdivision (b) of section eleven hundred five is directly
15 and exclusively, used or consumed by such enterprise in an area desig-
16 nated as an empire zone pursuant to article eighteen-B of the general
17 municipal law with respect to which such enterprise is certified pursu-
18 ant to such article eighteen-B, or (ii) such a service described in
19 clause (B) or (C) of paragraph one of such subdivision (b) of section
20 eleven hundred five is delivered and billed to such enterprise at an
21 address in such empire zone; provided, further, that, in order for a
22 motor vehicle, as defined in subdivision (c) of section eleven hundred
23 seventeen of this [article] part, or tangible personal property related
24 to such a motor vehicle to be found to be used predominantly in such a
25 zone, at least fifty percent of such motor vehicle's use shall be exclu-
26 sively within such zone or at least fifty percent of such motor vehi-
27 cle's use shall be in activities originating or terminating in such
28 zone, or both; and either or both such usages shall be computed either
29 on the basis of mileage or hours of use, at the discretion of such
30 enterprise. For purposes of this subdivision, tangible personal property
31 related to such a motor vehicle shall include a battery, diesel motor
32 fuel, an engine, engine components, motor fuel, a muffler, tires and
33 similar tangible personal property used in or on such a motor vehicle.
34 § 62. Paragraph 1 of subdivision (a) of section 1116 of the tax law,
35 as amended by chapter 530 of the laws of 1976, is amended to read as
36 follows:
37 (1) The state of New York, or any of its agencies, instrumentalities,
38 public corporations (including a public corporation created pursuant to
39 agreement or compact with another state or Canada) or political subdivi-
40 sions where it is the purchaser, user or consumer, or where it is a
41 vendor of services, digital products or property of a kind not ordinar-
42 ily sold by private persons;
43 § 63. Paragraph 2 of subdivision (a) of section 1116 of the tax law,
44 as amended by chapter 530 of the laws of 1976, is amended to read as
45 follows:
46 (2) The United States of America, and any of its agencies and instru-
47 mentalities, insofar as it is immune from taxation where it is the
48 purchaser, user or consumer, or where it sells services, digital
49 products or property of a kind not ordinarily sold by private persons;
50 § 64. Paragraph 3 of subdivision (a) of section 1116 of the tax law,
51 as amended by chapter 530 of the laws of 1976, is amended to read as
52 follows:
53 (3) The United Nations or any international organization of which the
54 United States of America is a member where it is the purchaser, user or
55 consumer, or where it sells services, digital products or property of a
56 kind not ordinarily sold by private persons;
S. 60--A 146 A. 160--A
1 § 65. Paragraph 9 of subdivision (a) of section 1116 of the tax law,
2 as amended by chapter 591 of the laws of 2005, is amended to read as
3 follows:
4 (9) A credit union, as defined in subdivision nine of section two of
5 the banking law, where it is the purchaser, user, or consumer, or where
6 it is a vendor of services, digital products or property of a kind not
7 ordinarily sold by private persons.
8 § 66. Subdivision (b) of section 1116 of the tax law, as amended by
9 chapter 888 of the laws of 1983, paragraph 1 as amended by section 1 of
10 part KK-1 of chapter 57 of the laws of 2008, paragraph 5 as amended by
11 chapter 619 of the laws of 1995, paragraph 6 as added by chapter 2 of
12 the laws of 1995 and paragraph 7 as added by chapter 387 of the laws of
13 1996, is amended to read as follows:
14 (b) Nothing in this section shall exempt:
15 (1) (i) retail sales of tangible personal property or digital products
16 by any shop or store operated by an organization described in paragraph
17 [(4), (5) or (6)] four, five or six of subdivision (a) of this section;
18 (ii) sales, other than for resale, of services described in subdivision
19 (b) or paragraph five of subdivision (c) of section eleven hundred five
20 of this article by that organization, whether or not at a shop or store;
21 (iii) retail sales of tangible personal property or digital products and
22 sales, other than for resale, of those services by that organization,
23 made with a degree of regularity, frequency, and continuity by remote
24 means, such as by telephone, the internet, mail order or otherwise; or
25 (iv) retail sales of tangible personal property or digital products by
26 lease or rental by that organization as lessor, whether or not at a shop
27 or store;
28 (2) sales of food or drink in or by a restaurant, tavern or other
29 establishment operated by an organization described in paragraph [(1)]
30 one, paragraph [(4)] four, paragraph [(5)] five or paragraph [(6)] six
31 of subdivision (a) of this section, other than sales exempt under para-
32 graph (ii) of subdivision (d) of section eleven hundred five of this
33 article, from the taxes imposed hereunder, unless the purchaser is an
34 organization exempt under this section;
35 (3) sales of the service of providing parking, garaging or storing for
36 motor vehicles by an organization described in paragraph [(4)] four or
37 paragraph [(5)] five of subdivision (a) of this section operating a
38 garage (other than a garage which is part of premises occupied solely as
39 a private one or two family dwelling), parking lot or other place of
40 business engaged in providing parking, garaging or storing for motor
41 vehicles; [or]
42 (4) sales of tangible personal property, digital products or services
43 by cooperative and foreign corporations doing business in this state
44 pursuant to the rural electric cooperative law, unless the purchaser is
45 an organization exempt under this section[.];
46 (5) purchases of motor fuel or diesel motor fuel from the tax required
47 to be prepaid pursuant to section eleven hundred two of this article and
48 retail sales of motor fuel or diesel motor fuel subject to the tax
49 imposed by sections eleven hundred five and eleven hundred ten of this
50 article, except that purchases of such fuel by an organization described
51 in paragraph one or two of subdivision (a) of this section for its own
52 use or consumption, purchases of motor fuel by a hospital included in
53 the organizations described in paragraph four of such subdivision for
54 its own use and consumption, purchases of motor fuel and diesel motor
55 fuel by a fire company or fire department, as defined in section three
56 of the volunteer firefighters' benefit law or a voluntary ambulance
S. 60--A 147 A. 160--A
1 service, as defined in section three thousand one of the public health
2 law, for such department, company or service's own use and consumption
3 for use in firefighting vehicles, apparatus or equipment, or emergency
4 rescue or first aid response vehicles, apparatus or equipment, owned and
5 operated by such department, company or service if such company, depart-
6 ment or service qualifies as an exempt organization pursuant to the
7 provisions of paragraph four of subdivision (a) of this section and
8 purchases of diesel motor fuel by an organization described in paragraph
9 four of such subdivision for its own heating use and consumption shall
10 be exempt from such tax required to be prepaid and from retail sales and
11 use taxes on such fuel[.];
12 (6) purchases of cigarettes from the tax required to be prepaid pursu-
13 ant to section eleven hundred three of this article, except that no
14 prepayment of tax shall be required on sales of cigarettes sold under
15 such circumstances that this state is without power to impose such tax
16 or sold to the United States or sold to or by a voluntary unincorporated
17 organization of the armed forces of the United States operating a place
18 for sale of goods pursuant to regulations promulgated by the appropriate
19 executive agency of the United States, to the extent provided in such
20 regulations and written policy statements of such agency applicable to
21 such sales[.]; or
22 (7) rent received by a hotel operated by a college or university,
23 where such hotel offers one hundred or more rooms for occupancy, and
24 where the individual paying said rent is not doing business on behalf of
25 any organization exempted pursuant to subdivision (a) of this section.
26 § 67. Subdivision 2 of section 1118 of the tax law, as amended by
27 chapter 651 of the laws of 1999, is amended to read as follows:
28 (2) In respect to the use of tangible personal property, digital
29 products or services purchased by the user while a nonresident of this
30 state, except in the case of tangible personal property or services
31 which the user, in the performance of a contract, incorporates into real
32 property located in the state. A person while engaged in any manner in
33 carrying on in this state any employment, trade, business or profession,
34 shall not be deemed a nonresident with respect to the use in this state
35 of tangible personal property, digital products or services in such
36 employment, trade, business or profession.
37 § 68. Subdivision 3 of section 1118 of the tax law, as amended by
38 chapter 286 of the laws of 1985, is amended to read as follows:
39 (3) In respect to the use of tangible personal property, digital
40 products or services upon the sale of which the purchaser would be
41 expressly exempt from the taxes imposed under subdivision (a), (b) [or],
42 (c) or (g) of section eleven hundred five of this article. In respect
43 to the use of tangible personal property to the extent that it is exempt
44 from the sales tax under subdivision (g) of section eleven hundred elev-
45 en of this article.
46 § 69. Subdivision 4 of section 1118 of the tax law, as added by chap-
47 ter 93 of the laws of 1965, is amended to read as follows:
48 (4) In respect to the use of tangible personal property or a digital
49 product which is converted into or becomes a component part of a product
50 produced for sale by the purchaser.
51 § 70. Paragraph (a) of subdivision 7 of section 1118 of the tax law,
52 as amended by chapter 300 of the laws of 1967, is amended to read as
53 follows:
54 (a) In respect to the use of tangible personal property, a digital
55 product or services to the extent that a retail sales or use tax was
56 legally due and paid thereon, without any right to a refund or credit
S. 60--A 148 A. 160--A
1 thereof, to any other state or jurisdiction within any other state but
2 only when it is shown that such other state or jurisdiction allows a
3 corresponding exemption with respect to the sale or use of tangible
4 personal property, digital products or services upon which such a sales
5 tax or compensating use tax was paid to this state. To the extent that
6 the tax imposed by this article is at a higher rate than the rate of tax
7 in the first taxing jurisdiction, this exemption shall be inapplicable
8 and the tax imposed by section eleven hundred ten of this [chapter]
9 article shall apply to the extent of the difference in such rates,
10 except as provided in paragraph (b) of this subdivision.
11 § 71. Section 1118 of the tax law is amended by adding a new subdivi-
12 sion 13 to read as follows:
13 (13) In respect to the use in this state of a digital product, other
14 than computer software described in paragraph eleven of this subdivi-
15 sion, before the effective date of a chapter of the laws of two thousand
16 nine that added this subdivision.
17 § 72. Subdivision (a) of section 1119 of the tax law, as amended by
18 chapter 686 of the laws of 1986 and as further amended by section 15 of
19 part GG of chapter 63 of the laws of 2000, is amended to read as
20 follows:
21 (a) Subject to the conditions and limitations provided for herein, a
22 refund or credit shall be allowed for a tax paid pursuant to subdivision
23 (a) of section eleven hundred five or section eleven hundred ten of this
24 article (1) on the sale or use of tangible personal property if the
25 purchaser or user, in the performance of a contract, later incorporates
26 that tangible personal property into real property located outside this
27 state, (2) on the sale or use of tangible personal property or digital
28 products purchased in bulk, or any portion thereof, which is stored and
29 not used by the purchaser or user within this state if that property is
30 subsequently reshipped by such purchaser or user to a point outside this
31 state for use outside this state, (3) on the sale to or use by a
32 contractor or subcontractor of tangible personal property or digital
33 products if that tangible personal property or digital product is used
34 by him or her solely in the performance of a pre-existing lump sum or
35 unit price construction contract, (4) on the sale or use within this
36 state of tangible personal property, not purchased for resale, if the
37 use of such property in this state is restricted to fabricating such
38 property (including incorporating it into or assembling it with other
39 tangible personal property), processing, printing or imprinting such
40 property and such property is then shipped to a point outside this state
41 for use outside this state, (5) on the sale to or use by a veterinarian
42 of drugs or medicine if such drugs or medicine are used by such veteri-
43 narian in rendering services, which are exempt pursuant to subdivision
44 (f) of section eleven hundred fifteen of this [chapter] part, to live-
45 stock or poultry used in the production for sale of tangible personal
46 property by farming or if such drugs or medicine are sold to a person
47 qualifying for the exemption provided for in paragraph [(6)] six of
48 subdivision (a) of section eleven hundred fifteen of this [chapter] part
49 for use by such person on such livestock or poultry, or (6) on the sale
50 of tangible personal property purchased for use in constructing, expand-
51 ing or rehabilitating industrial or commercial real property (other than
52 property used or to be used exclusively by one or more registered
53 vendors primarily engaged in the retail sale of tangible personal prop-
54 erty) located in an area designated as an empire zone pursuant to arti-
55 cle eighteen-B of the general municipal law, but only to the extent that
56 such property becomes an integral component part of the real property.
S. 60--A 149 A. 160--A
1 (For the purpose of [clause (3) of the preceding sentence] paragraph
2 three of this subdivision, the term "pre-existing lump sum or unit price
3 construction contract" shall mean a contract for the construction of
4 improvements to real property under which the amount payable to the
5 contractor or subcontractor is fixed without regard to the costs
6 incurred by him in the performance thereof, and which (i) was irrevoca-
7 bly entered into prior to the date of the enactment of this article or
8 the enactment of a law increasing the rate of tax imposed under this
9 article, or (ii) resulted from the acceptance by a governmental agency
10 of a bid accompanied by a bond or other performance guaranty which was
11 irrevocably submitted prior to such date.) Where the tax on the sale or
12 use of such tangible personal property or digital product has been paid
13 to the vendor, to qualify for such refund or credit, such tangible
14 personal property or digital product must be incorporated into real
15 property as required in [clause (1) above] paragraph one of this subdi-
16 vision, reshipped as required in [clause (2) above] paragraph two of
17 this subdivision, used in the manner described in [clauses (3), (4), (5)
18 and (6) above] paragraphs three, four, five and six of this subdivision
19 within three years after the date such tax was payable to the [tax
20 commission] commissioner by the vendor pursuant to section eleven
21 hundred thirty-seven of this article. Where the tax on the sale or use
22 of such tangible personal property or digital product was paid by the
23 applicant for the credit or refund directly to the [tax commission]
24 commissioner, to qualify for such refund or credit, such tangible
25 personal property or digital product must be incorporated into real
26 property as required in [clause (1) above] paragraph one of this subdi-
27 vision, reshipped as required in [clause (2) above] paragraph two of
28 this subdivision, used in the manner described in [clauses (3), (4), (5)
29 and (6) above] paragraphs three, four, five and six of this subdivision
30 within three years after the date such tax was payable to the [tax
31 commission] commissioner by such applicant pursuant to this article. An
32 application for a refund or credit pursuant to this section must be
33 filed with [such commission] the commissioner within the time provided
34 by subdivision (a) of section eleven hundred thirty-nine of this
35 article. Such application shall be in such form as the [tax commission]
36 commissioner may prescribe. Where an application for credit has been
37 filed, the applicant may immediately take such credit on the return
38 which is due coincident with or immediately subsequent to the time that
39 [he] the applicant files [his] the application for credit. However, the
40 taking of the credit on the return shall be deemed to be part of the
41 application for credit and shall be subject to the provisions in respect
42 to applications for credit in section eleven hundred thirty-nine of this
43 article as provided in subdivision (e) of such section. With respect to
44 a sale or use described in [clause (3) above] paragraph three of this
45 subdivision where a pre-existing lump sum or unit price construction
46 contract was irrevocably entered into prior to the date of the enactment
47 of this article or the bid accompanied by the performance guaranty was
48 irrevocably submitted to the governmental agency prior to such date, the
49 purchaser or user shall be entitled to a refund or credit only of the
50 amount by which the tax on such sale or use imposed under this article
51 plus any tax imposed under the authority of article twenty-nine of this
52 chapter exceeds the amount computed by applying against such sale or use
53 the local rate of tax, if any, in effect at the time such contract was
54 entered into or such bid was submitted.
55 In the case of the enactment of a law increasing the rate of tax
56 imposed by this article, the purchaser or user shall be entitled only to
S. 60--A 150 A. 160--A
1 a refund or credit of the amount by which the increased tax on such sale
2 or use imposed under this article plus any tax imposed under the author-
3 ity of article twenty-nine of this chapter exceeds the amount computed
4 by applying against such sale or use the state and local rates of tax in
5 effect at the time such contract was entered into or such bid was
6 submitted.
7 § 73. Subdivision (c) of section 1119 of the tax law, as amended by
8 chapter 760 of the laws of 1992, is amended to read as follows:
9 (c) A refund or credit equal to the amount of sales or compensating
10 use tax imposed by this article and pursuant to the authority of article
11 twenty-nine of this chapter, and paid on the sale or use of tangible
12 personal property or a digital product, shall be allowed the purchaser
13 where [such] the tangible personal property or digital product is later
14 used by the purchaser in performing a service subject to tax under para-
15 graph [(1), (2), (3), (5), (7) or (8)] one, two, three, five, seven or
16 eight of subdivision (c) of section eleven hundred five or under section
17 eleven hundred ten of this article and such tangible personal property
18 has become a physical component part or, in the case of a digital prod-
19 uct, a component part, of the property upon which the service is
20 performed or has been transferred to the purchaser of the service in
21 conjunction with the performance of the service subject to tax or if a
22 contractor, subcontractor or repairman purchases tangible personal prop-
23 erty and later makes a retail sale of such tangible personal property,
24 the acquisition of which would not have been a sale at retail to him but
25 for the second to last sentence of subparagraph (i) of paragraph [(4)]
26 four of subdivision (b) of section eleven hundred one of this article.
27 An application for the refund or credit provided for herein must be
28 filed with the commissioner [of taxation and finance] within the time
29 provided by subdivision (a) of section eleven hundred thirty-nine of
30 this article. Such application shall be in such form as the commissioner
31 may prescribe. Where an application for credit has been filed, the
32 applicant may immediately take such credit on the return which is due
33 coincident with or immediately subsequent to the time that [he] the
34 applicant files [his] the application for credit. However, the taking of
35 the credit on the return shall be deemed to be part of the application
36 for credit. The procedure for granting or denying such applications for
37 refund or credit and review of such determinations shall be as provided
38 in subdivision (e) of section eleven hundred thirty-nine of this
39 article.
40 § 74. Subdivision 1 of section 1131 of the tax law, as amended by
41 chapter 576 of the laws of 1994, is amended to read as follows:
42 (1) "Persons required to collect tax" or "person required to collect
43 any tax imposed by this article" shall include: every vendor of tangible
44 personal property, digital products or services; every recipient of
45 amusement charges; and every operator of a hotel. Said terms shall also
46 include any officer, director or employee of a corporation or of a
47 dissolved corporation, any employee of a partnership, any employee or
48 manager of a limited liability company, or any employee of an individual
49 proprietorship who as such officer, director, employee or manager is
50 under a duty to act for such corporation, partnership, limited liability
51 company or individual proprietorship in complying with any requirement
52 of this article; and any member of a partnership or limited liability
53 company. Provided, however, that any person who is a vendor solely by
54 reason of clause (D) or (E) of subparagraph (i) of paragraph [(8)] eight
55 of subdivision (b) of section eleven hundred one of this article shall
56 not be a "person required to collect any tax imposed by this article"
S. 60--A 151 A. 160--A
1 until twenty days after the date by which such person is required to
2 file a certificate of registration pursuant to section eleven hundred
3 thirty-four of this part.
4 § 75. Subdivision 2 of section 1131 of the tax law, as added by chap-
5 ter 93 of the laws of 1965, is amended to read as follows:
6 (2) "Customer" shall include: every purchaser of tangible personal
7 property, digital products or services; every patron paying or liable
8 for the payment of any amusement charge; and every occupant of a room or
9 rooms in a hotel.
10 § 76. Subdivision 3 of section 1131 of the tax law, as amended by
11 chapter 621 of the laws of 1967, is amended to read as follows:
12 (3) "Tax" shall include any tax imposed by sections eleven hundred
13 five[,] or eleven hundred ten of this article, and any amount payable to
14 the [tax commission] commissioner by a person required to file a return,
15 as provided in section eleven hundred thirty-seven of this part.
16 § 77. Paragraphs (a), (c), and (d) of subdivision 4 of section 1131 of
17 the tax law, as amended by section 34 of part Y of chapter 63 of the
18 laws of 2000, is amended to read as follows:
19 (a) all property and digital products sold to a person within the
20 state, whether or not the sale is made within the state, the use of
21 which property [is] or digital products are subject to tax under section
22 eleven hundred ten of this article or will become subject to tax when
23 such property [is] or digital products are received by or [comes] come
24 into the possession or control of such person within the state; (c) all
25 services rendered to a person within the state, whether or not such
26 services are performed within the state, upon tangible personal property
27 or digital products the use of which is subject to tax under section
28 eleven hundred ten of this article or will become subject to tax when
29 [such] the tangible personal property or digital product is received by
30 or comes into possession or control of such person within the state; (d)
31 all tangible personal property or digital products sold by a person
32 making sales described in clause (F) of subparagraph (i) of paragraph
33 eight of subdivision (b) of section eleven hundred one of this article
34 to a person described in such clause (F) who purchases [such] the tangi-
35 ble personal property or digital product at retail, whether or not the
36 sale is made within the state;
37 § 78. Subdivision 11 of section 1131 of the tax law, as added by chap-
38 ter 170 of the laws of 1994, is amended to read as follows:
39 (11) "Temporary vendor" shall include any person who makes sales of
40 tangible personal property, digital products or services subject to tax
41 (other than at a show or entertainment event) in not more than two
42 consecutive quarterly periods in any twelve month period, as such quar-
43 terly periods are described in subdivision (b) of section eleven hundred
44 thirty-six of this [article] part.
45 § 79. Subdivision (e) of section 1132 of the tax law, as amended by
46 section 2-d of part M-1 of chapter 109 of the laws of 2006, is amended
47 to read as follows:
48 (e) The commissioner may provide, by regulation, for the exclusion
49 from taxable receipts, gallons of motor fuel or diesel motor fuel sold,
50 amusement charges or rents of amounts representing sales where the
51 contract of sale has been cancelled, the property or digital product
52 returned or the receipt, charge or rent has been ascertained to be
53 uncollectible or, in case the tax has been paid upon such receipt,
54 gallons, charge or rent, for refund of or credit for the tax so paid.
55 Where the commissioner provides for a credit for the tax so paid, he or
56 she shall require an application for credit to be filed, but he or she
S. 60--A 152 A. 160--A
1 may also allow the applicant to immediately take the credit on the
2 return which is due coincident with or immediately subsequent to the
3 time the applicant files his or her application for credit. However, the
4 taking of the credit on the return shall be deemed to be part of the
5 application for credit and shall be subject to the provisions in respect
6 to applications for credit in section eleven hundred thirty-nine of this
7 part as provided in subdivision (e) of such section.
8 § 80. Paragraph 2 of subdivision (e-1) of section 1132 of the tax law,
9 as added by chapter 664 of the laws of 2006, is amended to read as
10 follows:
11 (2) A vendor shall be considered the vendor of the tangible personal
12 property, digital product or services giving rise to a worthless account
13 even though the tangible personal property, digital product or services
14 are sold by a leased department or concession provided all the following
15 conditions are met:
16 (i) the leased department or concession accounts for and pays over all
17 of its receipts to the lessor-vendor;
18 (ii) the lessor-vendor reports and remits to the department the tax on
19 all of the leased department or concession's receipts; and
20 (iii) the transfer of all the receivables from the leased department
21 or concession to the lessor-vendor is made without any discount for any
22 credit transactions which involve the lessor-vendor's receivables and
23 without recourse to the leased department or concession.
24 § 81. Paragraph 1 of subdivision (a) of section 1134 of the tax law,
25 as amended by section 160 of part A of chapter 389 of the laws of 1997,
26 is amended to read as follows:
27 (1) (i) Every person required to collect any tax imposed by this arti-
28 cle, other than a person who is a vendor solely by reason of clause (D),
29 (E) or (F) of subparagraph (i) of paragraph eight of subdivision (b) of
30 section eleven hundred one of this article, commencing business or open-
31 ing a new place of business, (ii) every person purchasing or selling
32 tangible personal property or digital products for resale commencing
33 business or opening a new place of business, (iii) every person selling
34 automotive fuel including persons who or which are not distributors,
35 (iv) every person described in this subdivision who takes possession of
36 or pays for business assets under circumstances requiring notification
37 by such person to the commissioner pursuant to subdivision (c) of
38 section eleven hundred forty-one of this [chapter] part, (v) every
39 person selling cigarettes including persons who or which are not agents,
40 and (vi) every person described in subparagraph (i), (ii), (iii), (iv)
41 or (v) of this paragraph or every person who is a vendor solely by
42 reason of clause (D), (E) or (F) of subparagraph (i) of paragraph eight
43 of subdivision (b) of section eleven hundred one of this article who or
44 which has had its certificate of authority revoked under paragraph four
45 of this subdivision, shall file with the commissioner a certificate of
46 registration, in a form prescribed by the commissioner, at least twenty
47 days prior to commencing business or opening a new place of business or
48 such purchasing, selling or taking of possession or payment, whichever
49 comes first. Every person who is a vendor solely by reason of clause (D)
50 of subparagraph (i) of paragraph eight of subdivision (b) of section
51 eleven hundred one of this article shall file with the commissioner a
52 certificate of registration, in a form prescribed by such commissioner,
53 within thirty days after the day on which the cumulative total number of
54 occasions that such person came into the state to deliver property or
55 services, for the immediately preceding four quarterly periods ending on
56 the last day of February, May, August and November, exceeds twelve.
S. 60--A 153 A. 160--A
1 Every person who is a vendor solely by reason of clause (E) of subpara-
2 graph (i) of paragraph eight of subdivision (b) of section eleven
3 hundred one of this article shall file with the commissioner a certif-
4 icate of registration, in a form prescribed by such commissioner, within
5 thirty days after the day on which the cumulative total, for the imme-
6 diately preceding four quarterly periods ending on the last day of
7 February, May, August and November, of such person's gross receipts from
8 sales of property delivered in this state exceeds three hundred thousand
9 dollars and number of such sales exceeds one hundred. Every person who
10 is a vendor solely by reason of clause (F) of subparagraph (i) of para-
11 graph eight of subdivision (b) of section eleven hundred one of this
12 article shall file with the commissioner a certificate of registration,
13 in a form prescribed by such commissioner, within thirty days after the
14 day on which tangible personal property in which such person retains an
15 ownership interest is brought into this state by the person to whom such
16 property is sold, where the person to whom such property is sold becomes
17 or is a resident or uses such property in any manner in carrying on in
18 this state any employment, trade, business or profession. Information
19 with respect to the notice requirements of a purchaser, transferee or
20 assignee and such person's liability pursuant to the provisions of
21 subdivision (c) of section eleven hundred forty-one of this [chapter]
22 part shall be included in or accompany the certificate of registration
23 form furnished the applicant. The commissioner shall also include with
24 such information furnished to each applicant general information about
25 the tax imposed under this article including information on records to
26 be kept, returns and payments, notification requirements and forms. Such
27 certificate of registration may be amended in accordance with rules
28 promulgated by the commissioner.
29 § 82. Paragraph 3 of subdivision (a) of section 1134 of the tax law,
30 as amended by chapter 2 of the laws of 1995, is amended to read as
31 follows:
32 (3) A person, other than one described in clauses (A), (B), and (C) of
33 subparagraph (i) of paragraph [(8)] eight of subdivision (b) of section
34 eleven hundred one of this article, and other than one described in
35 clause (D), (E) or (F) of such subparagraph who is required to file a
36 certificate of registration with the commissioner, but who makes sales
37 to persons within the state of tangible personal property, digital
38 products or services, the use of which is subject to tax under this
39 article, may if such person so elects file a certificate of registration
40 with the commissioner who may, in the commissioner's discretion and
41 subject to such conditions as the commissioner may impose, issue to such
42 person a certificate of authority to collect the compensating use tax
43 imposed by this article.
44 § 83. Paragraph 3 of subdivision (a) of section 1136 of the tax law,
45 as amended by chapter 2 of the laws of 1995, is amended to read as
46 follows:
47 (3) However, a person required to register with the commissioner as
48 provided in section eleven hundred thirty-four of this part only because
49 such person is purchasing or selling tangible personal property or
50 digital products for resale, and who is not required to collect any tax
51 or pay any tax directly to the commissioner under this article, shall
52 file an information return annually in such form as the commissioner may
53 prescribe. Likewise, a person, who is required to register and who is
54 selling automotive fuel who is not a distributor of motor fuel, shall
55 file an information return quarterly or, if the commissioner deems
56 necessary, monthly, in such form as the commissioner shall prescribe.
S. 60--A 154 A. 160--A
1 § 84. Paragraph 4 of subdivision (a) of section 1136 of the tax law,
2 as amended by section 2-e of part M-1 of chapter 109 of the laws of
3 2006, is amended to read as follows:
4 (4) The return of a vendor of tangible personal property, digital
5 products or services shall show such vendor's receipts from sales and
6 the number of gallons of any motor fuel or diesel motor fuel sold and
7 also the aggregate value of tangible personal property, digital products
8 and services and number of gallons of such fuels sold by the vendor, the
9 use of which is subject to tax under this article, and the amount of tax
10 payable thereon pursuant to the provisions of section eleven hundred
11 thirty-seven of this part. The return of a recipient of amusement charg-
12 es shall show all such charges and the amount of tax thereon, and the
13 return of an operator required to collect tax on rents shall show all
14 rents received or charged and the amount of tax thereon.
15 § 85. Subdivision (a) of section 1137 of the tax law, as amended by
16 section 2-f of part M-1 of chapter 109 of the laws of 2006, is amended
17 to read as follows:
18 (a) Every person required to file a return under the preceding section
19 whose total taxable receipts (as "taxable receipts" are described in
20 subdivision (a) of such section), amusement charges and rents are
21 subject to the tax imposed pursuant to subdivisions (a), (c), (d), (e)
22 [and], (f) and (g) of section eleven hundred five of this article shall,
23 at the time of filing such return, pay to the commissioner the total of
24 the following:
25 (i) Four percent of the total of all receipts, amusement charges and
26 rents subject to tax under this article, and if any of such receipts,
27 amusement charges and rents are subject to local tax imposed pursuant to
28 article twenty-nine of this chapter, an additional percentage of the
29 total thereof equal to the percentage rate of such local tax;
30 (ii) All taxes imposed by section eleven hundred ten of this article
31 or pursuant to article twenty-nine of this chapter upon such person's
32 use of tangible personal property, digital products or services;
33 (iii) All moneys collected by such person, purportedly as tax imposed
34 by this article or pursuant to article twenty-nine of this chapter, with
35 respect to any receipt, gallon of motor fuel or diesel motor fuel sold,
36 amusement charge or rent not subject to tax, and all moneys collected
37 with respect to any receipt, gallon of such fuel, amusement charge or
38 rent subject to tax, purportedly in accordance with a schedule
39 prescribed by the commissioner but actually in excess of the amount
40 stated in such schedule as the amount to be collected; and
41 (iv) The correct number of cents per gallon of motor fuel and diesel
42 motor fuel sold subject to tax under this article, and, if any of such
43 gallons sold are subject to local tax imposed pursuant to article twen-
44 ty-nine of this chapter, an additional number of cents per gallon sold
45 subject to such local taxes equal to the rates of such taxes.
46 § 86. Paragraph (ii) of subdivision (b) of section 1137 of the tax
47 law, as amended by section 2-f of part M-1 of chapter 109 of the laws of
48 2006, is amended to read as follows:
49 (ii) All taxes imposed by section eleven hundred ten of this article
50 or pursuant to article twenty-nine of this chapter upon such person's
51 use of tangible personal property, digital products or services;
52 § 87. Paragraph 1 of subdivision (e) of section 1137 of the tax law,
53 as amended by chapter 95 of the laws of 1976 and such subdivision as
54 relettered by chapter 89 of the laws of 1976, is amended to read as
55 follows:
S. 60--A 155 A. 160--A
1 (1) The amount so payable to the [tax commission] commissioner for the
2 period for which a return is required to be filed shall be due and paya-
3 ble to the [tax commission] commissioner on the date limited for the
4 filing of the return for such period, without regard to whether a return
5 is filed or whether the return which is filed correctly shows the amount
6 of receipts, amusement charges or rents or the value of property,
7 digital products or services sold or purchased or the taxes due thereon.
8 § 88. Subparagraph (B) of paragraph 3 of subdivision (a) of section
9 1138 of the tax law, as amended by chapter 456 of the laws of 1998, is
10 amended to read as follows:
11 (B) The liability, pursuant to subdivision (a) of section eleven
12 hundred thirty-three of this article, of any officer, director or
13 employee of a corporation or of a dissolved corporation, member or
14 employee of a partnership or employee of an individual proprietorship
15 who as such officer, director, employee or member is under a duty to act
16 for such corporation, partnership or individual proprietorship in
17 complying with any requirement of this article for the tax imposed,
18 collected or required to be collected, or for the tax required to be
19 paid or paid over to the [tax commission] commissioner under this arti-
20 cle, and the amount of such tax liability (whether or not a return is
21 filed under this article, whether or not such return when filed is
22 incorrect or insufficient, or where the tax shown to be due on the
23 return filed under this article has not been paid or has not been paid
24 in full) shall be determined by the [tax commission] commissioner in the
25 manner provided for in paragraphs one and two of this subdivision. Such
26 determination shall be an assessment of the tax and liability for the
27 tax with respect to such person unless such person, within ninety days
28 after the giving of notice of such determination, shall apply to the
29 division of tax appeals for a hearing. If such determination is identi-
30 cal to or arises out of a previously issued determination of tax of the
31 corporation, dissolved corporation, partnership or individual proprie-
32 torship for which such person is under a duty to act, an application
33 filed with the division of tax appeals on behalf of the corporation,
34 dissolved corporation, partnership or individual proprietorship shall be
35 deemed to include any and all subsequently issued personal determi-
36 nations and a separate application to the division of tax appeals for a
37 hearing shall not be required. The [tax commission] commissioner may,
38 nevertheless, [of its] on his or her own motion, redetermine such deter-
39 mination of tax or liability for tax. Where the [tax commission] commis-
40 sioner determines or redetermines that the amount of tax claimed to be
41 due from a vendor of tangible personal property, digital products or
42 services, a recipient of amusement charges, or an operator of a hotel is
43 erroneous or excessive in whole or in part, [it] the commissioner shall
44 redetermine the amount of tax properly due from any such person as a
45 person required to collect tax with respect to such vendor, recipient,
46 or operator, and if such amount is less than the amount of tax for which
47 such person would have been liable in the absence of such determination
48 or redetermination, [it] the commissioner shall reduce such liability
49 accordingly. Furthermore, the [tax commission] commissioner may, [of
50 its] on his or her own motion, abate on behalf of any such person, any
51 part of the tax determined to be erroneous or excessive whether or not
52 such tax had become finally and irrevocably fixed with respect to such
53 person but no claim for abatement may be filed by any such person. The
54 provisions of this paragraph shall not be construed to limit in any
55 manner the powers of the attorney general under subdivision (a) of
56 section eleven hundred forty-one of this part or the powers of the [tax
S. 60--A 156 A. 160--A
1 commission] commissioner to issue a warrant under subdivision (b) of
2 such section against any person whose liability has become finally and
3 irrevocably fixed.
4 § 89. Subparagraph (i) of paragraph 3 of subdivision (a) of section
5 1145 of the tax law, as amended by chapter 2 of the laws of 1995, is
6 amended to read as follows:
7 (i) Any person required to obtain a certificate of authority under
8 section eleven hundred thirty-four of this part who, without possessing
9 a valid certificate of authority, (A) sells tangible personal property,
10 digital products or services subject to tax, receives amusement charges
11 or operates a hotel, (B) purchases or sells tangible personal property
12 or digital products for resale, (C) sells automotive fuel, or (D) sells
13 cigarettes shall, in addition to any other penalty imposed by this chap-
14 ter, be subject to a penalty in an amount not exceeding five hundred
15 dollars for the first day on which such sales or purchases are made,
16 plus an amount not exceeding two hundred dollars for each subsequent day
17 on which such sales or purchases are made, not to exceed ten thousand
18 dollars in the aggregate.
19 § 90. Subparagraph (i) of paragraph 1 of subdivision (a) of section
20 1210 of the tax law, as amended by section 4 of part SS-1 of chapter 57
21 of the laws of 2008, is amended to read as follows:
22 (i) Either, all of the taxes described in article twenty-eight of this
23 chapter, at the same uniform rate, as to which taxes all provisions of
24 the local laws, ordinances or resolutions imposing such taxes shall be
25 identical, except as to rate and except as otherwise provided, with the
26 corresponding provisions in such article twenty-eight, including the
27 definition and exemption provisions of such article, so far as the
28 provisions of such article twenty-eight can be made applicable to the
29 taxes imposed by such city or county and with such limitations and
30 special provisions as are set forth in this article. The taxes author-
31 ized under this subdivision may not be imposed by a city or county
32 unless the local law, ordinance or resolution imposes such taxes so as
33 to include all portions and all types of receipts, charges or rents,
34 subject to state tax under sections eleven hundred five and eleven
35 hundred ten of this chapter, except as otherwise provided. Any local
36 law, ordinance or resolution enacted by any city of less than one
37 million or by any county or school district, imposing the taxes author-
38 ized by this subdivision, shall, notwithstanding any provision of law to
39 the contrary, exclude from the operation of such local taxes all sales
40 of tangible personal property or digital products for use or consumption
41 directly and predominantly in the production of tangible personal prop-
42 erty, gas, electricity, refrigeration or steam, for sale, by manufactur-
43 ing, processing, generating, assembly, refining, mining or extracting;
44 and all sales of tangible personal property or digital products for use
45 or consumption predominantly either in the production of tangible
46 personal property, for sale, by farming or in a commercial horse board-
47 ing operation, or in both; and, unless such city, county or school
48 district elects otherwise, shall omit the provision for credit or refund
49 contained in clause six of subdivision (a) of section eleven hundred
50 nineteen of this chapter. Any local law, ordinance or resolution enacted
51 by any city, county or school district, imposing the taxes authorized by
52 this subdivision, shall omit the residential solar energy systems equip-
53 ment exemption provided for in subdivision (ee), the clothing and foot-
54 wear exemption provided for in paragraph thirty of subdivision (a) and
55 the qualified empire zone enterprise exemptions provided for in subdivi-
56 sion (z) of section eleven hundred fifteen of this chapter, unless such
S. 60--A 157 A. 160--A
1 city, county or school district elects otherwise as to either such resi-
2 dential solar energy systems equipment exemption or such clothing and
3 footwear exemption or such qualified empire zone enterprise exemptions;
4 provided that if such a city having a population of one million or more
5 in which the taxes imposed by section eleven hundred seven of this chap-
6 ter are in effect enacts the resolution described in subdivision (k) of
7 this section or repeals such resolution or enacts the resolution
8 described in subdivision (l) of this section or repeals such resolution
9 or enacts the resolution described in subdivision (n) of this section or
10 repeals such resolution, such resolution or repeal shall also be deemed
11 to amend any local law, ordinance or resolution enacted by such a city
12 imposing such taxes pursuant to the authority of this subdivision,
13 whether or not such taxes are suspended at the time such city enacts its
14 resolution pursuant to subdivision (k), (l) or (n) of this section or at
15 the time of any such repeal; provided, further, that any such local law,
16 ordinance or resolution and section eleven hundred seven of this chap-
17 ter, as deemed to be amended in the event a city of one million or more
18 enacts a resolution pursuant to the authority of subdivision (k), (l) or
19 (n) of this section, shall be further amended, as provided in section
20 twelve hundred eighteen of this subpart, so that the residential solar
21 energy systems equipment exemption or the clothing and footwear
22 exemption or the qualified empire zone enterprise exemptions in any such
23 local law, ordinance or resolution or in such section eleven hundred
24 seven are the same, as the case may be, as the residential solar energy
25 systems equipment exemption provided for in subdivision (ee), the cloth-
26 ing and footwear exemption in paragraph thirty of subdivision (a) or the
27 qualified empire zone enterprise exemptions in subdivision (z) of
28 section eleven hundred fifteen of this chapter.
29 § 91. Paragraph 2 of subdivision (l) of section 1210 of the tax law,
30 as amended by section 13 of part GG of chapter 63 of the laws of 2000,
31 is amended to read as follows:
32 (2) Form of Resolution: Be it enacted by the (insert proper title of
33 local legislative body) as follows:
34 Section one. Receipts from sales of and consideration given or
35 contracted to be given for, or for the use of, property, pre-written
36 computer software and services exempt from state sales and compensating
37 use taxes pursuant to subdivision (z) of section 1115 of the tax law
38 shall also be exempt from sales and compensating use taxes imposed in
39 this jurisdiction.
40 Section two. This resolution shall take effect March 1, (insert the
41 year, but not earlier than the year 2001) and shall apply to sales made,
42 services rendered and uses occurring on and after that date in accord-
43 ance with the applicable transitional provisions in sections 1106, 1216
44 and 1217 of the New York tax law.
45 § 92. Paragraph 2 of subdivision (b) of section 1212-A of the tax law,
46 as amended by chapter 190 of the laws of 1990, is amended to read as
47 follows:
48 (2) However, with respect to a tax imposed under the authority of
49 paragraph three of subdivision (a) of this section a refund or credit
50 equal to the amount of the sale or compensating use tax imposed by
51 section eleven hundred seven of this chapter and paid on the sale or use
52 of tangible personal property or a digital product which is later used
53 by such purchaser in performing a service subject to tax under such
54 paragraph shall be allowed such purchaser against the tax imposed pursu-
55 ant to such paragraph and collected by such person on the sale of such
56 service if such tangible personal property has become a physical compo-
S. 60--A 158 A. 160--A
1 nent part or the digital product becomes a component part of the proper-
2 ty upon which the service is performed or if such tangible personal
3 property or digital product has been transferred to the purchaser of the
4 service in conjunction with the performance of the service subject to
5 tax.
6 § 93. Section 1213 of the tax law, as amended by chapter 651 of the
7 laws of 1999, is amended to read as follows:
8 § 1213. Deliveries outside the jurisdiction where sale is made. Where
9 a sale of tangible personal property, a digital product or services,
10 including prepaid telephone calling services, but not including other
11 services described in subdivision (b) of section eleven hundred five of
12 this chapter, including an agreement therefor, is made in any city,
13 county or school district, but the tangible personal property or digital
14 product sold, the property upon which the services were performed or
15 prepaid telephone calling or other service is or will be delivered to
16 the purchaser elsewhere, such sale shall not be subject to tax by such
17 city, county or school district. However, if delivery occurs or will
18 occur in a city, county or school district imposing a tax on the sale or
19 use of such property, digital product, prepaid telephone calling or
20 other services, the vendor shall be required to collect from the
21 purchaser, as provided in section twelve hundred fifty-four of this
22 article, the aggregate sales or compensating use taxes imposed by the
23 city, if any, county and school district in which delivery occurs or
24 will occur, for distribution by the commissioner to such taxing juris-
25 diction or jurisdictions. For the purposes of this section delivery
26 shall be deemed to include transfer of possession to the purchaser and
27 the receiving of the tangible personal property or of the service,
28 including prepaid telephone calling service, by the purchaser and, for a
29 digital product, delivery will be determined in accordance with the
30 rules in subdivision (g) of section eleven hundred five of this chapter.
31 § 94. Section 1235 of the tax law, as amended by chapter 459 of the
32 laws of 1968, is amended to read as follows:
33 § 1235. Taxes paid to other jurisdictions. (a) With respect to taxes
34 imposed pursuant to subdivision (a) of section twelve hundred ten of
35 this article and pursuant to section twelve hundred eleven of this arti-
36 cle, the use of tangible personal property or a digital product
37 purchased at retail and of any of the services subject to the sales tax
38 shall be exempt from the compensating use tax authorized under subdivi-
39 sion (a) of such section twelve hundred ten and under section twelve
40 hundred eleven of this article, to the extent that a retail sales tax or
41 a compensating use tax was legally due and paid thereon, without any
42 right to a refund or credit thereof, to (1) any municipal corporation in
43 this state or (2) any other state or jurisdiction within any other
44 state, but only when it is shown that such other state or jurisdiction
45 allows a corresponding exemption with respect to the sale or use of
46 tangible personal property, a digital product or of any of the services
47 upon which such a sale or compensating use tax was paid to this state
48 and any of its municipal corporations, except as provided in subdivision
49 (b) of this section.
50 (b) To the extent that a compensating use tax imposed pursuant to this
51 article and the compensating use tax imposed by article twenty-eight of
52 this chapter are at a higher aggregate rate than the rate of tax imposed
53 in any other state or jurisdiction within any other state, the exemption
54 provided in subdivision (a) of this section shall be inapplicable and
55 the taxes imposed pursuant to this article and by article twenty-eight
56 of this chapter shall apply to the extent of the difference between such
S. 60--A 159 A. 160--A
1 aggregate rate and the rate paid in such other state or jurisdiction.
2 In such event, the amount payable shall be allocated between the tax
3 imposed pursuant to this article and the tax imposed by article twenty-
4 eight of this chapter in proportion to the respective rates of such
5 taxes. Where a retail sales tax or a compensating use tax was legally
6 due and paid to any municipal corporation in this state, without any
7 right to a refund or credit thereof, with respect to the sale or use of
8 tangible personal property, a digital product or any of the services
9 subject to sales or compensating use tax, if the use of such property,
10 digital product or services is then subject to a compensating use tax
11 imposed by any other municipal corporation in this state and such tax is
12 at a higher rate than the rate of tax imposed by the first municipal
13 corporation, the tax of the municipal corporation with the higher rate
14 shall also apply but only to the extent of the difference in such rates
15 and such tax shall be distributable to such municipal corporation,
16 pursuant to section twelve hundred sixty-one of this article, without
17 allocation as hereinabove provided. Where a retail sales tax or a
18 compensating use tax was legally due and paid to this state only, with
19 respect to the sale or use of tangible personal property, a digital
20 product or any of the services subject to sales or compensating use tax,
21 if the use of such property, digital product or services is then subject
22 to a compensating use tax imposed by a municipal corporation in this
23 state, such tax shall be distributable to the municipal corporation,
24 pursuant to section twelve hundred sixty-one of this article, without
25 allocation as hereinabove provided.
26 (c) For purposes of this section, a payment to the [tax commission]
27 commissioner of a tax imposed by a municipal corporation shall be deemed
28 a payment to such municipal corporation.
29 § 95. Subdivision (a) of section 1251 of the tax law, as amended by
30 chapter 155 of the laws of 1982, is amended to read as follows:
31 (a) Every person required to collect any of the taxes imposed under
32 the authority of section twelve hundred ten, twelve hundred eleven,
33 twelve hundred twelve or twelve hundred twelve-A of this article shall
34 file a return as required by subdivision (a) of section eleven hundred
35 thirty-six of this chapter with the [tax commission] commissioner,
36 except that return for the quarterly period ending August thirty-first,
37 nineteen hundred sixty-five shall only cover the month of August, nine-
38 teen hundred sixty-five. The return of a vendor of tangible personal
39 property, digital products or services shall show his or her receipts
40 from sales and also the aggregate value of tangible personal property,
41 digital products and services sold by him or her, the use of which is
42 subject to a tax imposed under the authority of this article and the
43 amount of taxes required to be collected with respect to such sales and
44 use. The return of a recipient of amusement charges shall show all such
45 charges and the amount of tax thereon, and the return of an operator
46 required to collect tax on rents shall show all rents received or
47 charged and the amount of tax thereon. Every person required to file a
48 part-quarterly return pursuant to subdivision (a) of section eleven
49 hundred thirty-six of this chapter shall file a return for the same
50 periods for the taxes imposed pursuant to this article. Provided, howev-
51 er, where a part-quarterly return described in paragraph (i) or (ii) of
52 subdivision (a) of section eleven hundred thirty-six of this chapter is
53 filed for purposes of complying with this section and section eleven
54 hundred thirty-six or subdivision (a) or (b) of section eleven hundred
55 thirty-seven-A of this chapter, on such returns separate amounts due for
56 the taxes imposed by each county, city or school district, pursuant to
S. 60--A 160 A. 160--A
1 the authority of section twelve hundred ten, twelve hundred eleven,
2 twelve hundred twelve or twelve hundred twelve-A of this article, need
3 not be shown. Rather, such returns shall only show the aggregate amount
4 of all such local taxes calculated in the manner provided for in para-
5 graph (i) or (ii) of subdivision (a) of section eleven hundred thirty-
6 six of this chapter except that in the case of a short-form, part-quar-
7 terly return, where a county, city or school district did not impose a
8 tax in the comparable quarter of the immediately preceding year, the tax
9 for that locality shall be calculated on such basis as the [tax commis-
10 sion] commissioner shall by regulation prescribe.
11 § 96. Section 1252 of the tax law, as added by chapter 93 of the laws
12 of 1965, subdivision (a) as amended by chapter 89 of the laws of 1976
13 and subdivision (b) as amended by chapter 169 of the laws of 1970, is
14 amended to read as follows:
15 § 1252. Payment of tax. (a) Every person required to file a return or
16 returns under subdivision (a) of the preceding section shall, at the
17 time of filing such return or returns, pay to the [state tax commission]
18 commissioner the amount which section eleven hundred thirty-seven or
19 section eleven hundred thirty-seven-A of [article twenty-eight] this
20 chapter requires to be paid with respect to local taxes imposed pursuant
21 to this article. The amount so required to be paid for the period for
22 which a return or returns is required to be filed shall be due and paya-
23 ble to the [state tax commission] commissioner on the date limited for
24 the filing of the return or returns for such period, without regard to
25 whether a return is filed or whether the return which is filed clearly
26 shows the amount of receipts, amusement charges or returns or the value
27 of property, digital products or services sold or purchased or the taxes
28 due thereon. Where the [state tax commission] commissioner, in [its]
29 his or her discretion, deems it necessary to protect the revenues to be
30 obtained under this article, [it] the commissioner shall have the power
31 to require a bond, cash or other security under procedures which are set
32 forth in section eleven hundred thirty-seven of this chapter.
33 (b) The [tax commission] commissioner, in [its] his or her discretion,
34 may require or permit any or all persons liable for any tax or required
35 to collect any tax authorized under section twelve hundred ten, twelve
36 hundred eleven, twelve hundred twelve or twelve hundred twelve-A of this
37 article to make payment to such banks, banking houses or trust companies
38 designated by the [tax commission] commissioner and to file returns with
39 such banks, banking houses or trust companies, as agent of the [state
40 tax commission] commissioner, in lieu of paying the taxes imposed under
41 the authority of section twelve hundred ten, twelve hundred eleven,
42 twelve hundred twelve or twelve hundred twelve-A directly to the [state
43 tax commission] commissioner. However, the [tax commission] commission-
44 er can only designate such banks, banking houses and trust companies
45 which are already designated by the comptroller as depositories pursuant
46 to section eleven hundred forty-eight of this chapter.
47 § 97. Subdivision (b) of section 1254 of the tax law, as amended by
48 chapter 169 of the laws of 1970, is amended to read as follows:
49 (b) Where the state of New York, any of its agencies, instrumentali-
50 ties, public corporations (including a public corporation created pursu-
51 ant to agreement or compact with another state or Canada) or political
52 subdivisions sells services [or], property or digital products of a kind
53 ordinarily sold by private persons it shall be considered a vendor for
54 purposes of the taxes imposed under the authority of sections twelve
55 hundred ten, twelve hundred eleven, twelve hundred twelve and twelve
56 hundred twelve-A of this article and shall be required to collect the
S. 60--A 161 A. 160--A
1 taxes imposed by cities, counties and school districts under the author-
2 ity of such sections.
3 § 98. Subdivision (d) of section 1817 of the tax law, as added by
4 chapter 65 of the laws of 1985, is amended to read as follows:
5 (d) Any person required to obtain a certificate of authority under
6 section eleven hundred thirty-four of this chapter who, without possess-
7 ing a valid certificate of authority, willfully (1) sells tangible
8 personal property, a digital product or services subject to tax,
9 receives amusement charges or operates a hotel, (2) purchases or sells
10 tangible personal property or a digital product for resale, or (3) sells
11 automotive fuel; and any person who fails to surrender a certificate of
12 authority as required by such article shall be guilty of a misdemeanor.
13 § 99. Subdivision (e) of section 1817 of the tax law, as amended by
14 chapter 765 of the laws of 1985, is amended to read as follows:
15 (e) Any person required to obtain a certificate of authority under
16 section eleven hundred thirty-four of this chapter who within five years
17 after a determination by the [tax commission] commissioner, pursuant to
18 such section, to suspend, revoke or refuse to issue a certificate of
19 authority has become final, and without possession of a valid certif-
20 icate of authority (1) sells tangible personal property, a digital prod-
21 uct or services subject to tax, receives amusement charges or operates a
22 hotel, (2) purchases or sells tangible personal property or a digital
23 product for resale, or (3) sells automotive fuel, shall be guilty of a
24 misdemeanor. It shall be an affirmative defense that such person
25 performed the acts described in this subdivision without knowledge of
26 such determination. Any person who violates a provision of this subdivi-
27 sion, upon conviction, shall be subject to a fine in any amount author-
28 ized by this article, but not less than five hundred dollars, in addi-
29 tion to any other penalty provided by law.
30 § 100. Section 66 of the rural electric cooperative law, as amended by
31 chapter 888 of the laws of 1983, is amended to read as follows:
32 § 66. License fee in lieu of all franchise, excise, income, corpo-
33 ration and sales and compensating use taxes. Each cooperative and
34 foreign corporation doing business in this state pursuant to this chap-
35 ter shall pay annually, on or before the first day of July, to the
36 [state tax commission] commissioner of taxation and finance, a fee of
37 ten dollars, but shall be exempt from all other franchise, excise,
38 income, corporation and sales and compensating use taxes whatsoever. The
39 exemption from the sales and compensating use taxes provided by this
40 section shall not apply to the taxes imposed pursuant to section eleven
41 hundred seven or eleven hundred eight of the tax law. Nothing contained
42 in this section shall be deemed to exempt such corporations from
43 collecting and paying over sales and compensating use taxes on retail
44 sales of tangible personal property, digital products and services made
45 by such corporations to purchasers required to pay such taxes imposed
46 pursuant to article twenty-eight or authorized pursuant to the authority
47 of article twenty-nine of the tax law.
48 § 101. This act shall take effect immediately; provided however, that:
49 1. sections one through nine-a of this act shall apply to taxable
50 years beginning on and after January 1, 2010; and
51 2. sections ten through one hundred of this act shall take effect June
52 1, 2009 and shall apply to sales or uses occurring on or after that date
53 in accordance with applicable transitional provisions in sections 1106
54 and 1217 of the tax law.
55 PART DD
S. 60--A 162 A. 160--A
1 Section 1. Subdivision (b) of section 523 of the tax law, as amended
2 by section 7 of part M-1 of chapter 109 of the laws of 2006, is amended
3 to read as follows:
4 (b) Rate of tax. The tax imposed by this section shall be at a compos-
5 ite rate determined by adding together (1) a fuel tax component which
6 shall be equal to the applicable rate per gallon in effect under the
7 taxes on motor fuel and diesel motor fuel imposed by article twelve-A of
8 this chapter and (2) a sales tax component, which shall be equal to [the
9 sum of (A) a state sales and compensating use tax subcomponent, equal
10 to] the [applicable] rate per gallon applicable to the receipts from the
11 sale of a gallon of motor fuel or diesel motor fuel in effect under the
12 sales and compensating use taxes [on motor fuel and diesel motor fuel]
13 imposed by sections eleven hundred five and eleven hundred ten of this
14 chapter [as described in subdivision (m) of section eleven hundred elev-
15 en of this chapter] plus [(B) a local sales and compensating use tax
16 subcomponent, which shall be the lower of (i) the lowest applicable rate
17 per gallon in effect under the sales and compensating use taxes on such
18 fuels in effect in any county of this state imposing a local sales and
19 compensating use tax on a cents per gallon basis pursuant to the author-
20 ity of subpart B of part one of article twenty-nine of this chapter, or
21 (ii) the equivalent rate per gallon based on] the highest rate applica-
22 ble to the receipts from the sale of a gallon of motor fuel or diesel
23 motor fuel in effect in any locality of this state imposing a local
24 sales and compensating use tax on [a percentage rate basis on] the sale
25 of motor fuel and diesel motor fuel pursuant to the authority of subpart
26 B of part one of article twenty-nine of this chapter. Provided, however,
27 that the total rate per gallon applicable to the receipts from the sale
28 of a gallon of such fuels imposed under [clause (ii) of subparagraph (B)
29 of] paragraph two of this subdivision shall not exceed [three] seven
30 percent. Such total equivalent rate per gallon under [clause (ii) of
31 subparagraph B of] paragraph two of this subdivision shall be determined
32 as provided in subdivision (d) [or (m)] of section eleven hundred eleven
33 of this chapter and the schedules prescribed by the commissioner pursu-
34 ant to such subdivision (d), and shall be based on the average price per
35 gallon (including all federal and state and any local taxes included in
36 such price or imposed on the use or consumption of such fuels upon which
37 the state and local sales and compensating use taxes are computed but
38 determined without the inclusion of any state or local sales tax on
39 receipts from sales of such fuels) paid by the carrier during the
40 reporting period for all motor fuel and diesel motor fuel purchased for
41 use in its operations either within or without this state. [For purposes
42 of clause (ii) of subparagraph (B) of paragraph two of this subdivision,
43 the] The price for motor fuel and diesel motor fuel purchased by such
44 carrier shall be deemed to be the prevailing price for motor fuel and
45 diesel motor fuel, as established by the commissioner each calendar
46 quarter pursuant to this section, applicable to the reporting period.
47 The commissioner shall for each calendar quarter establish a prevailing
48 price for motor fuel and diesel motor fuel based on the prices being
49 charged on any given day during the first fifteen days of the previous
50 calendar quarter at a minimum of ten selected truck stops widely scat-
51 tered throughout the state. The tax imposed by this section shall be
52 computed by multiplying such composite rate by the amount of motor fuel
53 or diesel motor fuel, as the case may be, used by a carrier in its oper-
54 ations within this state during each reporting period. The amount of
55 motor fuel and diesel motor fuel used in the operations of any carrier
56 within this state shall be determined by dividing the number of miles
S. 60--A 163 A. 160--A
1 traveled in this state subject to tax under this section by the average
2 miles per gallon for the type of fuel. Where the records of any carrier
3 are inadequate or incomplete, the qualified motor vehicles of a carrier
4 filing returns shall be deemed to have consumed, on the average, one
5 gallon of diesel motor fuel for every four miles traveled or one gallon
6 of motor fuel for every three miles traveled unless substantial evidence
7 discloses that a different amount was consumed; provided, however, that
8 if the commissioner enters into a cooperative agreement pursuant to
9 section five hundred twenty-eight of this article and such agreement
10 prescribes a different average miles per gallon deemed to be consumed,
11 the commissioner shall prescribe such different average.
12 § 2. Subdivision (c) of section 524 of the tax law, as amended by
13 section 8 of part M-1 of chapter 109 of the laws of 2006, is amended to
14 read as follows:
15 (c) Actual price. Every carrier which can substantiate that its aver-
16 age price paid per gallon (including all federal and state and any local
17 taxes included in such price or imposed on the use or consumption of
18 such fuels upon which the state and local sales and compensating use
19 taxes are computed but determined [with out] without the inclusion of
20 any state or local sales tax on receipts from sales of such fuels)
21 during a reporting period is less than the prevailing price determined
22 for such period pursuant to subdivision (b) of section five hundred
23 twenty-three of this article[, if such calculation was based upon an
24 amount determined under clause (ii) of subparagraph (B) of paragraph two
25 of subdivision (b) of section five hundred twenty-three of this arti-
26 cle,] may apply for a refund of the difference between the tax paid
27 relating to the sales tax component computed based upon such prevailing
28 price for such period and the tax relating to the sales tax component
29 computed based upon the carrier's actual average purchase price for such
30 period. Such refund must be applied for on or before the last day of the
31 month immediately following the four-year period commencing with the end
32 of the reporting period which gave rise to the refund.
33 § 3. Subdivision (n) of section 1111 of the tax law, as amended by
34 section 10 of part W-1 of chapter 109 of the laws of 2006, is amended to
35 read as follows:
36 (n) The sales and compensating use taxes imposed by this article and
37 pursuant to the authority of article twenty-nine of this chapter on B20
38 shall be imposed [at eighty percent of the rate of the cents per gallon
39 taxes described in subdivision (m) of this section. However, if a county
40 or city does not make the cents per gallon election authorized by such
41 subdivision (m), the taxes of such county or city imposed pursuant to
42 the authority of such article twenty-nine or the taxes imposed in a city
43 of one million or more by section eleven hundred seven of this article
44 shall be imposed] on eighty percent of the receipts from the retail sale
45 of or the consideration given or contracted to be given for, or for the
46 use of, such B20.
47 § 4. Paragraph 7 of subdivision (a) of section 1136 of the tax law, as
48 amended by section 2-e of part M-1 of chapter 109 of the laws of 2006,
49 is amended to read as follows:
50 (7) Taxable receipts as used in this section shall include taxable
51 receipts from the sale of automotive fuel and cigarettes and any
52 receipts from the sale of motor fuel or diesel motor fuel or cigarettes
53 in this state whether or not such receipts are subject to the taxes
54 imposed by section eleven hundred two, eleven hundred three, eleven
55 hundred five or eleven hundred ten of this article and regardless of
56 whether the provisions of section eleven hundred twenty or eleven
S. 60--A 164 A. 160--A
1 hundred twenty-one of this article are applicable to the taxes imposed
2 in respect of such receipts [or numbers of gallons of motor fuel or
3 diesel motor fuel sold].
4 § 5. Section 8 of part A of chapter 35 of the laws of 2006 amending
5 the tax law relating to computing sales and compensating use tax on
6 motor fuel and diesel motor fuel and amending the tax law and the gener-
7 al business law relating to requiring retail dealers of motor fuel and
8 diesel motor fuel to reduce prices for such fuel, is amended to read as
9 follows:
10 § 8. This act shall take effect immediately, provided that sections
11 one through five of this act shall take effect June 1, 2006; provided
12 that this act shall expire June 1, 2009, in accordance with the applica-
13 ble transitional provisions of articles 28 and 29 of the tax law, when
14 upon such date the provisions of this act shall be deemed repealed and
15 any local law, ordinance or resolution enacted pursuant to this act or
16 pursuant to provisions of the tax law as added or amended by this act
17 shall be deemed to be repealed therewith; provided, however, that all
18 provisions of state or local law, ordinance or resolution and of regu-
19 lations adopted thereunder, in respect of assessment, payment, determi-
20 nation, collection, credit and refund of taxes imposed thereunder, the
21 keeping of records and the filing of returns for the purposes of such
22 taxes, the secrecy of returns, and disposition of revenues and net
23 collections, shall continue in effect with respect to all such taxes
24 accrued through and including May 31, 2009.
25 § 6. Section 14 of part M-1 of chapter 109 of the laws of 2006 amend-
26 ing the tax law and other laws relating to the sales tax imposed on
27 motor fuel and diesel motor fuel, is amended to read as follows:
28 § 14. This act shall take effect immediately; provided that:
29 (a) sections one through ten of this act shall take effect on the same
30 date and in the same manner as part A of chapter 35 of the laws of 2006,
31 takes effect; provided that sections one through two-d, two-f, three,
32 three-b through six, nine, and ten of this act shall expire June 1,
33 2009, in accordance with the applicable transitional provisions of arti-
34 cles 28 and 29 of the tax law, when upon such date such sections of this
35 act shall be deemed repealed and any local law, ordinance or resolution
36 enacted pursuant to this act or pursuant to provisions of the tax law as
37 added or amended by this act shall be deemed to be repealed therewith;
38 provided, however, that all provisions of state or local law, ordinance
39 or resolution and of regulations adopted thereunder, in respect of
40 assessment, payment, determination, collection, credit and refund of
41 taxes imposed thereunder, the keeping of records and the filing of
42 returns for the purposes of such taxes, the secrecy of returns, and
43 disposition of revenues and net collections, shall continue in effect
44 with respect to all such taxes accrued through and including May 31,
45 2009; and
46 (b) sections eleven, twelve and thirteen of this act shall take effect
47 on the same date and in the same manner as part B of chapter 35 of the
48 laws of 2006, takes effect.
49 § 7. The repeal of any provision of state or local law, ordinance or
50 resolution by this act shall not be construed to take away, impair or
51 affect any right or remedy acquired or given by the provisions hereby
52 repealed; and all existing suits or proceedings may be continued and
53 completed; and all offenses committed or penalties or forfeitures
54 incurred shall continue and remain in force with the same effect as
55 though this act had not become law.
S. 60--A 165 A. 160--A
1 § 8. Notwithstanding any other provision of law: (a) The commissioner
2 of taxation and finance may prescribe the schedules of regional average
3 retail sales prices pursuant to paragraph 3 of subdivision (e) of
4 section 1111 of the tax law, as restored by this act, any date after
5 this act becomes a law and that action will be timely for the period
6 beginning June 1, 2009, if it is taken after the date this act becomes a
7 law and prior to June 1, 2009, and the notice prescribed by subparagraph
8 (iii) of such paragraph 3 is filed after the date this act becomes a law
9 and prior to June 1, 2009.
10 (b) The commissioner of taxation and finance is authorized on any date
11 after this act becomes a law to adopt regulations by emergency action to
12 set forth the methodology to determine the regional average retail sell-
13 ing prices and to establish the sales tax components and the motor fuel
14 and diesel motor fuel composite rates for the fuel use taxes imposed by
15 article 21-A of the tax law for the quarter including the effective date
16 of this act and the next calendar quarter.
17 § 9. This act shall take effect immediately; provided however that
18 sections one, two, three, four, five, six and seven of this act shall
19 take effect June 1, 2009, and shall apply in accordance with applicable
20 transitional provisions in articles 28 and 29 of the tax law; provided
21 however that the amendment to subdivision (n) of section 1111 of the tax
22 law made by section three of this act shall not affect the repeal of
23 such subdivision and shall be deemed repealed therewith.
24 PART EE
25 Section 1. Section 502 of the tax law is amended by adding a new
26 subdivision 6 to read as follows:
27 6. a. The commissioner may require the use of decals as evidence that
28 a carrier has a valid certificate of registration for each motor vehicle
29 operated or to be operated on the public highways of this state as
30 required by paragraph a of subdivision one of this section. If the
31 commissioner requires the use of decals, the commissioner shall issue
32 for each motor vehicle with a valid certificate of registration a decal
33 that shall be of a size and design and containing such information as
34 the commissioner prescribes. The fee for any decal issued pursuant to
35 this paragraph is four dollars. In the case of the loss, mutilation, or
36 destruction of a decal, the commissioner shall issue a new decal upon
37 proof of the facts and payment of four dollars. The decal shall be firm-
38 ly and conspicuously affixed upon the motor vehicle for which it is
39 issued as closely as practical to the registration or license plates and
40 at all times be visible and legible. No decal is transferable. A decal
41 shall be valid until it expires or is revoked, suspended, or surren-
42 dered.
43 b. The commissioner may require the use of special decals as evidence
44 that an automotive fuel carrier has a valid special certificate of
45 registration for each motor vehicle operated or to be operated on the
46 public highways of this state to transport automotive fuel as required
47 by paragraph b of subdivision one of this section. If the commissioner
48 requires the use of special decals, the commissioner shall issue for
49 each motor vehicle with a valid special certificate of registration a
50 special decal that shall be distinctively colored and of a size and
51 design and containing such information as the commissioner prescribes.
52 The fee for any special decal issued pursuant to this paragraph is four
53 dollars. In the case of the loss, mutilation, or destruction of a
54 special decal, the commissioner shall issue a new special decal upon
S. 60--A 166 A. 160--A
1 proof of the facts and payment of four dollars. The special decal shall
2 be firmly and conspicuously affixed upon the motor vehicle for which it
3 is issued pursuant to the rules and regulations prescribed by the
4 commissioner to enable the easy identification of the automotive fuel
5 carrier certificate of registration number and at all times be visible
6 and legible. No special decal is transferable and shall be valid until
7 it expires or is revoked, suspended, or surrendered.
8 c. The suspension or revocation of any certificate of registration
9 issued under this article shall be deemed to include the suspension and
10 revocation of any decal issued under this subdivision.
11 § 2. Subdivision 5-a of section 509 of the tax law, as amended by
12 section 4 of part E of chapter 60 of the laws of 2007, is amended to
13 read as follows:
14 5-a. To take possession of any certificate of registration which has
15 been suspended or revoked under the provisions of this article and any
16 decal issued in conjunction therewith, and any certificate of registra-
17 tion which is being used for a motor vehicle other than the one for
18 which it was issued and any decal that is on a motor vehicle other than
19 the one for which it was issued, or to direct any peace officer, acting
20 pursuant to his or her special duties, or any police officer or any
21 employee of the department to take possession thereof and return the
22 same to the commissioner.
23 § 3. Subdivision 8 of section 509 of the tax law, as amended by
24 section 5 of part E of chapter 60 of the laws of 2007, is amended to
25 read as follows:
26 8. To issue replacement certificates of registration or decals at such
27 times as the commissioner may deem necessary for the proper and effi-
28 cient enforcement of the provisions of this article, but not more often
29 than once every year and to require the surrender of the then outstand-
30 ing certificates of registration and decals. All of the provisions of
31 this article with respect to certificates of registration and decals
32 shall be applicable to replacement certificates of registration and
33 decals issued hereunder, except that the replacement certificate of
34 registration or decal shall be issued upon payment of a fee of four
35 dollars for each motor vehicle and two dollars for any trailer, semi-
36 trailer, dolly or other device drawn thereby for which a certificate of
37 registration or decal is required to be issued under this article;
38 § 4. Paragraph (e) of subdivision 1 of section 512 of the tax law, as
39 added by section 8 of part E of chapter 60 of the laws of 2007, is
40 amended to read as follows:
41 (e) In addition to any other penalty imposed by this chapter, any
42 person who fails to obtain a certificate of registration or decal as
43 required under this article shall, after due notice and an opportunity
44 for a hearing, for a first violation be liable for a civil fine not less
45 than five hundred dollars but not to exceed two thousand dollars and for
46 a second or subsequent violation within three years following a prior
47 finding of violation be liable for a civil fine not less than one thou-
48 sand dollars but not to exceed three thousand five hundred dollars.
49 § 5. Clause (i) of subparagraph (A) of paragraph 1 of subdivision (a)
50 of section 1815 of the tax law, as amended by section 10 of part E of
51 chapter 60 of the laws of 2007, is amended to read as follows:
52 (i) Use or cause or permit to be used, any public highway in this
53 state for the operation of a motor vehicle subject to the provisions of
54 article twenty-one of this chapter without first applying for and
55 obtaining the certificate of registration required under such article or
56 a decal that has been suspended or revoked or that was issued for a
S. 60--A 167 A. 160--A
1 motor vehicle other than the one on which affixed. The operation of any
2 motor vehicle on any public highway of this state without a decal
3 required under such article shall be presumptive evidence that a certif-
4 icate of registration or decal has not been obtained for such motor
5 vehicle;
6 § 6. This act shall take effect immediately.
7 PART FF
8 Section 1. Clauses (G) and (H) of subparagraph (i) of paragraph 8 of
9 subdivision (b) of section 1101 of the tax law, as amended by chapter 61
10 of the laws of 1989 and as relettered by chapter 190 of the laws of
11 1990, are amended and a new clause (I) is added to read as follows:
12 (G) Any other person making sales to persons within the state of
13 tangible personal property or services, the use of which is taxed by
14 this article, who may be authorized by the commissioner of taxation and
15 finance to collect such tax by part IV of this article; [and]
16 (H) The state of New York, any of its agencies, instrumentalities,
17 public corporations (including a public corporation created pursuant to
18 agreement or compact with another state or Canada) or political subdivi-
19 sions when such entity sells services or property of a kind ordinarily
20 sold by private persons[.]; and
21 (I) A seller of tangible personal property or services, the use of
22 which is taxed by this article if either (I) an affiliated person that
23 is a vendor as otherwise defined in this paragraph uses in the state
24 trademarks, service marks, or trade names that are the same as those the
25 seller uses; or (II) an affiliated person engages in activities in the
26 state that inure to the benefit of the seller, in its development or
27 maintenance of a market for its goods or services in the state, to the
28 extent that those activities of the affiliate are sufficient to satisfy
29 the nexus requirement of the United States constitution. For purposes of
30 this clause, "affiliated person" has the same meaning as in clause (B)
31 of subparagraph (v) of this paragraph. Nothing in this clause shall be
32 construed to narrow the scope of any other provision in this paragraph.
33 § 2. This act shall take effect June 1, 2009 and shall apply to sales
34 made or uses occurring on or after such date in accordance with the
35 applicable transitional provisions of sections 1106 and 1217 of the tax
36 law.
37 PART GG
38 Section 1. Subdivision 6 of section 212 of the racing, pari-mutuel
39 wagering and breeding law, as added by chapter 18 of the laws of 2008,
40 is amended and a new subdivision 7-a is added to read as follows:
41 6. Within thirty days following the appointment of the members of the
42 franchise oversight board, the members of the oversight board shall
43 establish a local advisory board for each racing operation comprised of
44 the following members to meet at least twice yearly:
45 a. The local advisory board for the Saratoga racetrack facility shall
46 be comprised of fifteen members and include five designees from each of
47 the following: the board of supervisors, the mayor of the city of Sara-
48 toga and the franchised corporation.
49 b. The local advisory board for the Aqueduct racetrack facility shall
50 be comprised of fifteen members, nine of whom shall be designees of New
51 York City Queens Community Board Ten, three designees of the franchised
52 corporation and three designees of the video lottery gaming operator.
S. 60--A 168 A. 160--A
1 c. The local advisory board of Belmont Park shall consist of fifteen
2 persons, two of whom shall be designees of the New York City Queens
3 Community Board Thirteen, four of whom shall be designees of the County
4 Executive of the county of Nassau, three of whom shall be designees of
5 the supervisor of the town of Hempstead, three designees of the fran-
6 chised corporation and three designees of the video lottery gaming oper-
7 ator.
8 The members of the local advisory boards shall serve for a period of
9 two years. In the event of a vacancy occurring during a term of appoint-
10 ment by reason of death, resignation, disqualification or otherwise such
11 vacancy shall be filled for the unexpired term in the same manner as the
12 original appointment. The members of the local advisory board shall
13 serve without compensation, except that each member shall be allowed the
14 necessary and actual expenses incurred in the performance of his or her
15 duties pursuant to this section.
16 7-a. The local advisory board of Belmont Park shall, after conducting
17 public hearings within the unincorporated hamlet of Elmont and the
18 affected communities, develop a strategic master plan for the revitali-
19 zation of Belmont Park racetrack, the development of a video lottery
20 terminal gaming facility and redevelopment of the unincorporated hamlet
21 of Elmont and the affected communities.
22 § 2. Clause (B) of subparagraph (ii) of paragraph 1 of subdivision b
23 of section 1612 of the tax law, as amended by chapter 140 of the laws of
24 2008, is amended to read as follows:
25 (B) having one thousand one hundred or more video gaming machines, at
26 a rate of thirty-two percent of the total revenue wagered at the vendor
27 track after payout for prizes pursuant to this chapter, except for such
28 facility located in the county of Westchester, in which case the rate
29 shall be thirty-four percent of the total revenue wagered at the vendor
30 track after payout for prizes pursuant to this chapter, for a period of
31 twenty-four months effective beginning April first, two thousand eight;
32 provided, however, that in the event that the vendor track located in
33 Westchester county completes a successful restructuring prior to March
34 thirty-first, two thousand ten, the vendor fee will be reduced to thir-
35 ty-two percent ninety days following the completion of the successful
36 restructuring. A successful restructuring is defined as a restructuring
37 of the existing debt obligations of such vendor track located in West-
38 chester county that meets the following two conditions:
39 (i) it requires no more than twenty million dollars of additional
40 equity invested in such track; and
41 (ii) results in average net interest costs of less than nine percent.
42 Notwithstanding the foregoing, the vendor fee at such track will
43 become thirty-one percent effective April first, two thousand ten and
44 remain at that level for a period equal to two times the period of time
45 (measured in days) that the vendor fee was thirty-four percent or until
46 March thirty-first, two thousand twelve, whichever is later. Notwith-
47 standing the foregoing, not later than April first, two thousand twelve,
48 the vendor fee shall become thirty-two percent and remain at that level
49 thereafter; and except for Aqueduct racetrack, in which case the vendor
50 fee shall be thirty-eight percent of the total revenue wagered at the
51 vendor track after payout for prizes pursuant to this chapter; and
52 except for Belmont racetrack, in which case the vendor fee shall be
53 thirty-six and one-half percent of the total revenue wagered at the
54 vendor track after payout for prizes pursuant to this chapter;
S. 60--A 169 A. 160--A
1 § 3. Subparagraph (iii) of paragraph 1 of subdivision b of section
2 1612 of the tax law, as separately amended by chapters 140 and 286 of
3 the laws of 2008, is amended to read as follows:
4 (iii) less an additional vendor's marketing allowance at a rate of ten
5 percent for the first one hundred million dollars annually and eight
6 percent thereafter of the total revenue wagered at the vendor track
7 after payout for prizes to be used by the vendor track for the marketing
8 and promotion and associated costs of its video lottery gaming oper-
9 ations and pari-mutuel horse racing operations, as long as any such
10 costs associated with pari-mutuel horse racing operations simultaneously
11 encourage increased attendance at such vendor's video lottery gaming
12 facilities, consistent with the customary manner of marketing comparable
13 operations in the industry and subject to the overall supervision of the
14 division; provided, however, that the additional vendor's marketing
15 allowance shall not exceed eight percent in any year for any operator of
16 a racetrack located in the county of Westchester [or], Queens or Nassau;
17 provided, however, a vendor track that receives a vendor fee pursuant to
18 clause (G) of [this] subparagraph (ii) of this paragraph shall not
19 receive the additional vendor's marketing allowance. In establishing the
20 vendor fee, the division shall ensure the maximum lottery support for
21 education while also ensuring the effective implementation of section
22 sixteen hundred seventeen-a of this article through the provision of
23 reasonable reimbursements and compensation to vendor tracks for partic-
24 ipation in such program. Within twenty days after any award of lottery
25 prizes, the division shall pay into the state treasury, to the credit of
26 the state lottery fund, the balance of all moneys received from the sale
27 of all tickets for the lottery in which such prizes were awarded remain-
28 ing after provision for the payment of prizes as herein provided. Any
29 revenues derived from the sale of advertising on lottery tickets shall
30 be deposited in the state lottery fund.
31 § 4. Clause (F) of subparagraph (ii) of paragraph 1 of subdivision b
32 of section 1612 of the tax law, as amended by chapter 140 of the laws of
33 2008, is amended to read as follows:
34 (F) notwithstanding clauses (A), (B), (C), (D) and (E) of this subpar-
35 agraph, the track operator of a vendor track shall be eligible for a
36 vendor's capital award of up to four percent of the total revenue
37 wagered at the vendor track after payout for prizes pursuant to this
38 chapter, which shall be used exclusively for capital project investments
39 to improve the facilities of the vendor track which promote or encourage
40 increased attendance at the video lottery gaming facility including, but
41 not limited to hotels, other lodging facilities, entertainment facili-
42 ties, retail facilities, dining facilities, events arenas, parking
43 garages and other improvements that enhance facility amenities; provided
44 that such capital investments shall be approved by the division, in
45 consultation with the state racing and wagering board, and that such
46 vendor track demonstrates that such capital expenditures will increase
47 patronage at such vendor track's facilities and increase the amount of
48 revenue generated to support state education programs. The annual amount
49 of such vendor's capital awards that a vendor track shall be eligible to
50 receive shall be limited to two million five hundred thousand dollars,
51 except for Aqueduct [racetrack] and Belmont racetracks, for which there
52 shall be no vendor's capital awards. Except for tracks having less than
53 one thousand one hundred video gaming machines, each track operator
54 shall be required to co-invest an amount of capital expenditure equal to
55 its cumulative vendor's capital awards. For all tracks, except for Aque-
56 duct [racetrack] and Belmont racetracks, the amount of any vendor's
S. 60--A 170 A. 160--A
1 capital award that is not used during any one year period may be carried
2 over into subsequent years ending before April first, two thousand thir-
3 teen. Any amount attributable to a capital expenditure approved prior to
4 April first, two thousand thirteen and completed before April first, two
5 thousand fifteen shall be eligible to receive the vendor's capital
6 award. In the event that a vendor track's capital expenditures, approved
7 by the division prior to April first, two thousand thirteen and
8 completed prior to April first, two thousand fifteen, exceed the vendor
9 track's cumulative capital award during the five year period ending
10 April first, two thousand thirteen, the vendor shall continue to receive
11 the capital award after April first, two thousand thirteen until such
12 approved capital expenditures are paid to the vendor track subject to
13 any required co-investment. In no event shall such track facility
14 located in Sullivan county and within sixty miles from any gaming facil-
15 ity in a contiguous state be eligible for a vendor's capital award under
16 this section, unless it shall have moved from such location or the five
17 year period commencing on April first, two thousand eight has expired,
18 whichever comes first. Any operator of a vendor track which has received
19 a vendor's capital award, choosing to divest the capital improvement
20 toward which the award was applied, prior to reaching the forty year
21 straightline depreciation value of the improvement, shall reimburse the
22 state in amounts equal to the total of any such awards. Any capital
23 award not approved for a capital expenditure at a video lottery gaming
24 facility by April first, two thousand thirteen shall be deposited in the
25 state lottery fund for education aid; and
26 § 5. Paragraph 2 of subdivision b of section 1612 of the tax law, as
27 separately amended by chapters 140 and 286 of the laws of 2008, is
28 amended to read as follows:
29 2. As consideration for the operation of a video lottery gaming facil-
30 ity, the division, shall cause the investment in the racing industry of
31 a portion of the vendor fee received pursuant to paragraph one of this
32 subdivision in the manner set forth in this subdivision. With the excep-
33 tion of Aqueduct [racetrack] and Belmont racetracks, each such track
34 shall dedicate a portion of its vendor fees, received pursuant to clause
35 (A), (B), (C), (D), (E), (F), or (G) of subparagraph (ii) of paragraph
36 one of this subdivision, solely for the purpose of enhancing purses at
37 such track, in an amount equal to eight and three-quarters percent of
38 the total revenue wagered at the vendor track after pay out for prizes.
39 In addition, with the exception of the Aqueduct and Belmont racetracks,
40 one and one-quarter percent of total revenue wagered at the vendor track
41 after pay out for prizes, received pursuant to clause (A), (B), (C),
42 (D), (E), (F), or (G) of subparagraph (ii) of paragraph one of this
43 subdivision, shall be distributed to the appropriate breeding fund for
44 the manner of racing conducted by such track.
45 Provided, further, that nothing in this paragraph shall prevent each
46 track from entering into an agreement, not to exceed five years, with
47 the organization authorized to represent its horsemen to increase or
48 decrease the portion of its vendor fee dedicated to enhancing purses at
49 such track during the years of participation by such track, or to race
50 fewer dates than required herein.
51 § 6. Section 1612 of the tax law is amended by adding three new subdi-
52 visions h, i and j to read as follows:
53 h. The video lottery gaming operator selected to operate a video
54 lottery terminal facility at Belmont will be subject to a memorandum of
55 understanding between the governor, temporary president of the senate
56 and the speaker of the assembly. Notwithstanding subparagraph (i) of
S. 60--A 171 A. 160--A
1 paragraph a of subdivision eight of section two hundred twelve of the
2 racing, pari-mutuel wagering and breeding law, the state, pursuant to an
3 agreement with the video lottery gaming operator to operate a video
4 lottery terminal facility at Belmont, may authorize, as part of such
5 agreement or in conjunction with such agreement at the time it is
6 executed, additional development at the Belmont racing facility. The
7 selection shall be made in consultation with the franchised corporation,
8 but is not subject to such corporation's approval. The franchised corpo-
9 ration shall not be eligible to compete to operate or to operate a video
10 lottery terminal facility at Belmont. The state will use its best
11 efforts to ensure that the video lottery terminal facility at Belmont is
12 opened as soon as is practicable and will, if practicable, pursue the
13 construction of a temporary video lottery terminal facility at Belmont
14 subject to staying within an agreed budget for such video lottery termi-
15 nal facility and subject to such temporary facility not having an
16 adverse impact on opening of the permanent facility at Belmont.
17 i. In consideration of its licensure and participation in this
18 program, the video lottery gaming operator at Belmont racetrack shall
19 reinvest in the racing industry a percentage of the vendor fee received
20 pursuant to subdivision b of this section in the manner set forth in
21 this subdivision. The video lottery gaming operator at Belmont racetrack
22 shall provide the following percentages of its vendor fee to the fran-
23 chised corporation established pursuant to section two hundred six of
24 the racing, pari-mutuel wagering and breeding law, as follows:
25 1. Three and three-quarters percent of the total wagered after payout
26 of prizes for the purpose of enhancing purses at Aqueduct racetrack,
27 Belmont Park racetrack and Saratoga race course.
28 2. Three-quarters percent of the total wagered after payout of prizes
29 for an appropriate breeding fund for the manner of racing conducted at
30 Aqueduct racetrack, Belmont Park racetrack and Saratoga race course.
31 3. Two percent of the total revenue wagered after payout of prizes to
32 be deposited into an account of the franchised corporation established
33 pursuant to section two hundred six of the racing, pari-mutuel wagering
34 and breeding law to be used for capital expenditures in maintaining and
35 upgrading Aqueduct racetrack, Belmont Park racetrack and Saratoga race
36 course.
37 4. One and one-half percent of the total revenue wagered after payout
38 for prizes to be deposited into an account of the franchised corporation
39 established pursuant to section two hundred six of the racing, pari-mu-
40 tuel wagering and breeding law to be used for general thoroughbred
41 racing operations at Aqueduct racetrack, Belmont Park racetrack and
42 Saratoga race course.
43 5. Paragraphs one, two, three and four of this subdivision shall be
44 known collectively as the "Belmont racing support payments".
45 j. Notwithstanding any provision of subdivision b or f of this section
46 to the contrary, upon commencement of the operation of video lottery
47 gaming at Belmont racetrack, the vendor fee to be paid for serving as a
48 lottery agent to the track operator of Aqueduct racetrack, shall be
49 thirty-seven and one-quarter percent of the total revenue wagered at the
50 vendor track after payout for prizes pursuant to this article for the
51 first year of operation of video lottery gaming at Aqueduct racetrack,
52 thirty-six and eight hundred seventy-five-thousandths percent of the
53 total revenue wagered at the vendor track after payout for prizes pursu-
54 ant to this article for the second year of operation of video lottery
55 gaming at Aqueduct racetrack, and thirty-six and one-half percent of the
56 total revenue wagered at the vendor track after payout for prizes pursu-
S. 60--A 172 A. 160--A
1 ant to this article for the third year of operation of video lottery
2 gaming at Aqueduct racetrack and thereafter. As consideration for the
3 operation of the video lottery gaming facility at Aqueduct racetrack,
4 the division shall cause the investment in the racing industry of the
5 following percentages of the vendor fee described in this subdivision to
6 be deposited or paid, as follows:
7 1. Three and one-quarter percent of the total wagered after payout of
8 prizes for the first year of operation of video lottery gaming at Aque-
9 duct racetrack, three and one-half percent of the total wagered after
10 payout of prizes for the second year of operation, and three and three-
11 quarters percent of the total wagered after payout of prizes for the
12 third year of operation and thereafter, for the purpose of enhancing
13 purses at Aqueduct racetrack, Belmont Park racetrack and Saratoga race
14 course.
15 2. One-half percent of the total wagered after payout of prizes for
16 the first year of operation of video lottery gaming at Aqueduct race-
17 track, six hundred twenty-five thousandths percent of the total wagered
18 after payout of prizes for the second year of operation, and three-quar-
19 ters percent of the total wagered after payout of prizes for the third
20 year of operation and thereafter, for an appropriate breeding fund for
21 the manner of racing conducted at Aqueduct racetrack, Belmont Park race-
22 track and Saratoga race course.
23 3. Two percent of the total revenue wagered after payout of prizes to
24 be deposited into an account of the franchised corporation established
25 pursuant to section two hundred six of the racing, pari-mutuel wagering
26 and breeding law to be used for capital expenditures in maintaining and
27 upgrading Aqueduct racetrack, Belmont Park racetrack and Saratoga race
28 course.
29 4. One and one-half percent of the total revenue wagered after payout
30 for prizes to be deposited into an account of the franchised corporation
31 established pursuant to section two hundred six of the racing, pari-mu-
32 tuel wagering and breeding law to be used for general thoroughbred
33 racing operations at Aqueduct racetrack, Belmont Park racetrack and
34 Saratoga race course.
35 5. Paragraphs one, two, three and four of this subdivision shall be
36 known collectively as the "Aqueduct racing support payments".
37 § 7. The opening paragraph of subdivision a of section 1617-a of the
38 tax law, as amended by section 2 of part Z3 of chapter 62 of the laws of
39 2003, is amended to read as follows:
40 The division of the lottery is hereby authorized to license, pursuant
41 to rules and regulations to be promulgated by the division of the
42 lottery, the operation of video lottery gaming at Aqueduct and Belmont,
43 Monticello, Yonkers, Finger Lakes, and Vernon Downs racetracks, or at
44 any other racetrack licensed pursuant to article three of the racing,
45 pari-mutuel wagering and breeding law that are located in a county or
46 counties in which video lottery gaming has been authorized pursuant to
47 local law, excluding the licensed racetrack commonly referred to in
48 article three of the racing, pari-mutuel wagering and breeding law as
49 the "New York state exposition" held in Onondaga county and the [race-
50 tracks] racetrack of the [non-profit racing association] franchised
51 corporation known as [Belmont Park racetrack and] the Saratoga thorough-
52 bred racetrack. Such rules and regulations shall provide, as a condi-
53 tion of licensure, that racetracks to be licensed are certified to be in
54 compliance with all state and local fire and safety codes, that the
55 division is afforded adequate space, infrastructure, and amenities
56 consistent with industry standards for such video gaming operations as
S. 60--A 173 A. 160--A
1 found at racetracks in other states, that racetrack employees involved
2 in the operation of video lottery gaming pursuant to this section are
3 licensed by the racing and wagering board, and such other terms and
4 conditions of licensure as the division may establish. Notwithstanding
5 any inconsistent provision of law, video lottery gaming at a racetrack
6 pursuant to this section shall be deemed an approved activity for such
7 racetrack under the relevant city, county, town, or village land use or
8 zoning ordinances, rules, or regulations. No racetrack operating video
9 lottery gaming pursuant to this section may house such gaming activity
10 in a structure deemed or approved by the division as "temporary" for a
11 duration of longer than eighteen-months.
12 § 8. The opening paragraph of subdivision a of section 1617-a of the
13 tax law, as amended by chapter 140 of the laws of 2008, is amended to
14 read as follows:
15 The division of the lottery is hereby authorized to license, pursuant
16 to rules and regulations to be promulgated by the division of the
17 lottery, the operation of video lottery gaming at Aqueduct [racetrack]
18 and Belmont racetracks. Such rules and regulations shall provide, as a
19 condition of licensure, that [such racetrack is] racetracks to be
20 licensed are certified to be in compliance with all state and local fire
21 and safety codes, that the division is afforded adequate space, infras-
22 tructure, and amenities consistent with industry standards for such
23 video gaming operations as found at racetracks in other states, that
24 racetrack employees involved in the operation of video lottery gaming
25 pursuant to this section are licensed by the racing and wagering board,
26 and such other terms and conditions of licensure as the division may
27 establish. Notwithstanding any inconsistent provision of law, video
28 lottery gaming at a racetrack pursuant to this section shall be deemed
29 an approved activity for such racetrack under the relevant city, county,
30 town, or village land use or zoning ordinances, rules, or regulations.
31 No racetrack operating video lottery gaming pursuant to this section may
32 house such gaming activity in a structure deemed or approved by the
33 division as "temporary" for a duration of longer than eighteen-months.
34 § 9. This act shall take effect immediately; provided, that section
35 eight of this act shall take effect on the same date and in the same
36 manner as section 13 of chapter 140 of the laws of 2008 when upon such
37 date the provisions of section seven of this act, shall expire and be
38 deemed repealed; provided, further, that the amendments to section
39 1617-a of the tax law, made by sections seven and eight of this act,
40 shall not affect the expiration and repeal of such section, and shall
41 expire and be deemed repealed therewith; and provided further that the
42 amendments to section 212 of the racing, pari-mutuel wagering and breed-
43 ing law, made by section one of this act shall take effect on the same
44 date and in the same manner as such section takes effect pursuant to
45 chapter 18 of the laws of 2008.
46 PART HH
47 Section 1. Subdivision 1 of section 171-a of the tax law, as amended
48 by section 1 of part R of chapter 60 of the laws of 2004, is amended to
49 read as follows:
50 1. All taxes, interest, penalties and fees collected or received by
51 the commissioner or the commissioner's duly authorized agent under arti-
52 cles nine (except section one hundred eighty-two-a thereof and except as
53 otherwise provided in section two hundred five thereof), nine-A,
54 twelve-A (except as otherwise provided in section two hundred eighty-
S. 60--A 174 A. 160--A
1 four-d thereof), thirteen, thirteen-A (except as otherwise provided in
2 section three hundred twelve thereof), eighteen, nineteen, twenty
3 (except as otherwise provided in section four hundred eighty-two there-
4 of), twenty-one, twenty-two, twenty-six, twenty-six-B, twenty-eight
5 (except as otherwise provided in section eleven hundred two [or], eleven
6 hundred three or eleven hundred five-D thereof), twenty-eight-A, thir-
7 ty-one (except as otherwise provided in section fourteen hundred twen-
8 ty-one thereof), thirty-two, thirty-three and thirty-three-A of this
9 chapter shall be deposited daily in one account with such responsible
10 banks, banking houses or trust companies as may be designated by the
11 comptroller, to the credit of the comptroller. Such an account may be
12 established in one or more of such depositories. Such deposits shall be
13 kept separate and apart from all other money in the possession of the
14 comptroller. The comptroller shall require adequate security from all
15 such depositories. Of the total revenue collected or received under such
16 articles of this chapter, the comptroller shall retain in the comp-
17 troller's hands such amount as the commissioner may determine to be
18 necessary for refunds or reimbursements under such articles of this
19 chapter [and article ten thereof] out of which amount the comptroller
20 shall pay any refunds or reimbursements to which taxpayers shall be
21 entitled under the provisions of such articles of this chapter [and
22 article ten thereof]. The commissioner and the comptroller shall main-
23 tain a system of accounts showing the amount of revenue collected or
24 received from each of the taxes imposed by such articles. The comp-
25 troller, after reserving the amount to pay such refunds or reimburse-
26 ments, shall, on or before the tenth day of each month, pay into the
27 state treasury to the credit of the general fund all revenue deposited
28 under this section during the preceding calendar month and remaining to
29 the comptroller's credit on the last day of such preceding month, (i)
30 except that the comptroller shall pay to the state department of social
31 services that amount of overpayments of tax imposed by article twenty-
32 two of this chapter and the interest on such amount which is certified
33 to the comptroller by the commissioner as the amount to be credited
34 against past-due support pursuant to subdivision six of section one
35 hundred seventy-one-c of this [chapter] article, (ii) and except that
36 the comptroller shall pay to the New York state higher education
37 services corporation and the state university of New York or the city
38 university of New York respectively that amount of overpayments of tax
39 imposed by article twenty-two of this chapter and the interest on such
40 amount which is certified to the comptroller by the commissioner as the
41 amount to be credited against the amount of defaults in repayment of
42 guaranteed student loans and state university loans or city university
43 loans pursuant to subdivision five of section one hundred seventy-one-d
44 and subdivision six of section one hundred seventy-one-e of this [chap-
45 ter] article, (iii) and except further that, notwithstanding any law,
46 the comptroller shall credit to the revenue arrearage account, pursuant
47 to section ninety-one-a of the state finance law, that amount of over-
48 payment of tax imposed by article nine, nine-A, twenty-two, thirty,
49 thirty-A, thirty-B, thirty-two or thirty-three of this chapter, and any
50 interest thereon, which is certified to the comptroller by the commis-
51 sioner as the amount to be credited against a past-due legally enforcea-
52 ble debt owed to a state agency pursuant to paragraph (a) of subdivision
53 six of section one hundred seventy-one-f of this article, provided,
54 however, [he] the comptroller shall credit to the special offset fiduci-
55 ary account, pursuant to section ninety-one-c of the state finance law,
56 any such amount creditable as a liability as set forth in paragraph (b)
S. 60--A 175 A. 160--A
1 of subdivision six of section one hundred seventy-one-f of this article,
2 (iv) and except further that the comptroller shall pay to the city of
3 New York that amount of overpayment of tax imposed by article nine,
4 nine-A, twenty-two, thirty, thirty-A, thirty-B, thirty-two, or thirty-
5 three of this chapter and any interest thereon that is certified to the
6 comptroller by the commissioner as the amount to be credited against
7 city of New York tax warrant judgment debt pursuant to section one
8 hundred seventy-one-l of this article, (v) and except further that the
9 comptroller shall pay to a non-obligated spouse that amount of overpay-
10 ment of tax imposed by article twenty-two of this chapter and the inter-
11 est on such amount which has been credited pursuant to section one
12 hundred seventy-one-c, one hundred seventy-one-d, one hundred seventy-
13 one-e, one hundred seventy-one-f or one hundred seventy-one-l of this
14 article and which is certified to the comptroller by the commissioner as
15 the amount due such non-obligated spouse pursuant to paragraph six of
16 subsection (b) of section six hundred fifty-one of this chapter; and
17 (vi) the comptroller shall deduct a like amount which the comptroller
18 shall pay into the treasury to the credit of the general fund from
19 amounts subsequently payable to the department of social services, the
20 state university of New York, the city university of New York, or the
21 higher education services corporation, or the revenue arrearage account
22 or special offset fiduciary account pursuant to section ninety-one-a or
23 ninety-one-c of the state finance law, as the case may be, whichever had
24 been credited the amount originally withheld from such overpayment, and
25 (vii) with respect to amounts originally withheld from such overpayment
26 pursuant to section one hundred seventy-one-l of this article and paid
27 to the city of New York, the comptroller shall collect a like amount
28 from the city of New York.
29 § 2. The tax law is amended by adding a new section 1105-D to read as
30 follows:
31 § 1105-D. Additional state sales and compensating use taxes on certain
32 beverage products. Notwithstanding any law to the contrary:
33 (a) Imposition of additional taxes. (1) In addition to the sales and
34 compensating use taxes imposed by subdivision (a) of section eleven
35 hundred five and clauses (A) and (B) of subdivision (a) of section elev-
36 en hundred ten of this part, there are hereby imposed and there shall be
37 paid additional sales and compensating use taxes, at the rate of eigh-
38 teen percent, on (i) fruit drinks that contain less than seventy percent
39 of natural fruit juice and (ii) soft drinks, sodas, and beverages such
40 as are ordinarily dispensed at soda fountains or in connection therewith
41 (other than coffee, tea and cocoa), whether or not the item is sold in
42 liquid form, which except as otherwise provided in this section shall be
43 identical to the taxes imposed by such subdivision (a) of section eleven
44 hundred five and clauses (A) and (B) of subdivision (a) of section elev-
45 en hundred ten of this part.
46 (2) In addition to the sales taxes imposed by subdivision (d) and
47 paragraph three of subdivision (f) of section eleven hundred five of
48 this part, there are hereby imposed and there shall be paid additional
49 sales taxes, at the rate of eighteen percent, on (i) fruit drinks which
50 contain less than seventy percent of natural fruit juice and (ii) soft
51 drinks, sodas and beverages such as are ordinarily dispensed at soda
52 fountains or in connection therewith (other than coffee, tea and cocoa),
53 whether or not the item is sold in liquid form, which except as other-
54 wise provided in this section shall be identical to the taxes imposed by
55 such subdivision (d) and paragraph three of subdivision (f) of section
56 eleven hundred five of this part.
S. 60--A 176 A. 160--A
1 (b) Special rules for computing receipts and consideration. (1) If a
2 vendor sells, or a recipient charges for, a drink, soda or beverage
3 subject to the additional taxes imposed by this section together with
4 other property or with services (for example, as part of a meal or a
5 special promotion, or mixed with an alcoholic or other beverage) or
6 together with a cover, minimum, entertainment or other charge or togeth-
7 er with other charges of a roof garden, cabaret or other similar place,
8 for a single price or charge, and the vendor also separately sells, or
9 the recipient also separately charges for, such a drink, soda or bever-
10 age in the same form and condition, quantities, and packaging, then the
11 tax imposed by this section shall apply to the amount at which that
12 vendor or recipient separately sells or charges for such drink, soda or
13 beverage in the same form and condition, quantity, and packaging.
14 (2) If a vendor sells, or a recipient charges for, a drink, soda, or
15 beverage subject to the additional taxes imposed by this section togeth-
16 er with other property or with services (for example, as part of a meal
17 or a special promotion, or mixed with an alcoholic or other beverage) or
18 together with a cover, minimum, entertainment or other charge or togeth-
19 er with other charges of a roof garden, cabaret or other similar place,
20 for a single price or charge, but the vendor does not separately sell,
21 or the recipient does not separately charge for, such a drink, soda or
22 beverage in the same form and condition, quantities, and packaging, then
23 the tax imposed by this section shall be computed on five hundred
24 percent of the vendor's or recipient's cost for such drink, soda or
25 beverage. For purposes of this paragraph, "cost" means the consideration
26 given or contracted to be given for such property, or for the use of
27 such property, including any charges for shipping or delivery as
28 described in paragraph three of subdivision (b) of section eleven
29 hundred one of this article, but excluding any credit for tangible
30 personal property accepted in part payment and intended for resale.
31 (3) The additional compensating use tax imposed by paragraph one of
32 subdivision (a) of this section shall be computed in the same manner as
33 the additional sales tax is computed under paragraph one or two of this
34 subdivision in like circumstances.
35 (c) Applicability of certain exemptions and exclusions from tax. (1)
36 The exemptions for provisions and other property in paragraphs eight,
37 twenty-four and forty-three of subdivision (a) and in subdivision (z) of
38 section eleven hundred fifteen of this article shall not apply to the
39 taxes imposed by paragraph one of subdivision (a) of this section.
40 (2) The exclusion from tax in subparagraph (B) of paragraph (ii) of
41 subdivision (d) of section eleven hundred five of this part shall not
42 apply to the tax imposed by paragraph two of subdivision (a) of this
43 section.
44 (3) Sales of drink in or by a restaurant, tavern, or other establish-
45 ment operated by an organization described in paragraph one, four, five
46 or six of subdivision (a) of section eleven hundred sixteen of this
47 article, including sales otherwise exempt under paragraph (ii) of subdi-
48 vision (d) of section eleven hundred five of this part, shall be subject
49 to the taxes imposed by paragraph two of subdivision (a) of this
50 section, unless the purchaser is an organization described in subdivi-
51 sion (a) of section eleven hundred sixteen of this article.
52 (4) Nothing in this section shall be construed to impose any tax on
53 food exempt from tax pursuant to subdivision (k) of section eleven
54 hundred fifteen of this article.
55 (d) Tax filers under section ten of this chapter for the months of
56 February and March, two thousand nine. If a person is required to
S. 60--A 177 A. 160--A
1 collect or pay or pay over any tax imposed by this section and that
2 person is required to make payments of tax in accord with section ten of
3 this chapter, that person shall, for purposes of payments required to be
4 made under section ten of this chapter during the months of February and
5 March, two thousand nine, include in the payments for each of those
6 months the amount described in subclause (II) of clause (i) of subpara-
7 graph (A) of paragraph one of subdivision (c) of section ten of this
8 chapter with respect to the liability for the taxes imposed by this
9 section for such months, together with any other amounts required by
10 section ten of this chapter for those months.
11 (e) Separate statement of tax. Every person required to collect the
12 tax imposed by this section shall state, charge, and show that tax sepa-
13 rately from the price or charge, and also separately from any other tax
14 imposed by this article or other law on any sales slip, invoice, receipt
15 or other statement or memorandum of the price or charge, paid or paya-
16 ble, given to the customer.
17 (f) Vendor collection credit not to include tax imposed by this
18 section. The taxes imposed by, and collected or paid or paid over under,
19 this section shall not be included or considered in computing the credit
20 allowed by subdivision (f) of section eleven hundred thirty-seven of
21 this article.
22 (g) Incorporation of other provisions of this article. Except as
23 otherwise provided in this section, sections eleven hundred five and
24 eleven hundred ten and the other sections of this article, including the
25 definition and exemption provisions, shall apply for purposes of the
26 taxes imposed by this section in the same manner and with the same force
27 and effect as if the language of those sections had been incorporated in
28 full into this section and had expressly referred to the taxes imposed
29 by this section.
30 (h) Taxes to be in addition to any other. The taxes imposed by this
31 section shall be in addition to any other tax imposed or authorized to
32 be imposed by this chapter or other law.
33 (i) Taxes not to apply to other impositions. The taxes imposed by this
34 section shall not apply to the taxes imposed by section eleven hundred
35 seven, eleven hundred eight, or eleven hundred nine of this part or to
36 taxes authorized to be imposed by article twenty-nine of this chapter.
37 (j) Deposit and disposition of revenue. All taxes, fees, interest, and
38 penalties collected or received by the commissioner under this section
39 shall be deposited and disposed of pursuant to the provisions of section
40 one hundred seventy-one-a of this chapter. However, all of those taxes,
41 interest and penalties shall be deposited to the credit of the tobacco
42 control and insurance initiatives pool to be established and distributed
43 by the commissioner of health in accordance with section twenty-eight
44 hundred seven-v of the public health law. To effect the deposit and
45 disposition of revenues arising from the taxes imposed by this section
46 during periods for which the commissioner does not have adequate data,
47 the commissioner is authorized to estimate the amount of those taxes for
48 any period and to certify such amounts as required based on such esti-
49 mates. These estimates may be based on information available to the
50 commissioner at the time distributions shall be made under this subdivi-
51 sion and may be estimated on the basis of respective state and local
52 sales and compensating use tax rates, percentages, or other indices
53 calculated from returns, reports, or distributions from prior periods
54 for these or other periods or with respect to sales and compensating use
55 taxes imposed by counties and cities that impose taxes pursuant to
56 subdivision (a) of section twelve hundred ten of this chapter. The
S. 60--A 178 A. 160--A
1 commissioner is authorized to require whatever information the commis-
2 sioner deems necessary to comply with the requirements of this subdivi-
3 sion from persons required to file returns, reports, or schedules under
4 this section. If estimated distributions are made under this section,
5 they must be reconciled based on tax returns as soon as is practicable.
6 Neither the commissioner nor the comptroller shall be held liable for
7 any inaccuracy in the determinations and certifications made pursuant to
8 this subdivision. Any overpayment or underpayment shall be adjusted in
9 the manner described in subdivision (c) of section twelve hundred
10 sixty-one of this chapter, provided that no interest is to be paid on
11 any overpayment or underpayment.
12 (k) This section shall not apply to diet soda or to water products.
13 "Diet soda" means non-alcoholic carbonated beverage that does not
14 contain sugar and is sweetened with artificial sweetener. "Water
15 products" means plain water, plain water to which only carbonation has
16 been added, and plain water, carbonated or not, with mere natural
17 flavorings added, but not including any carbonated water that contains
18 sugar, fruit juice, or other additives or flavorings.
19 § 3. Paragraph 1 of subdivision (a) of section 1115 of the tax law, as
20 amended by section 1 of part O of chapter 63 of the laws of 2000, is
21 amended to read as follows:
22 (1) Food, food products, beverages, dietary foods and health supple-
23 ments, sold for human consumption but not including (i) candy and
24 confectionery, (ii) fruit drinks which contain less than seventy percent
25 of natural fruit juice, (iii) soft drinks, sodas and beverages such as
26 are ordinarily dispensed at soda fountains or in connection therewith
27 (other than coffee, tea and cocoa) and (iv) beer, wine or other alcohol-
28 ic beverages, all of which shall be subject to the retail sales and
29 compensating use taxes, whether or not the item is sold in liquid form.
30 The food [and drink] excluded from the exemption provided by this para-
31 graph under [subparagraphs] subparagraph (i)[, (ii) and (iii)] of this
32 paragraph shall be exempt under this paragraph when sold for seventy-
33 five cents or less through any vending machine activated by the use of
34 coin, currency, credit card or debit card. With the exception of the
35 provision in this paragraph providing for an exemption for certain food
36 [or drink] sold for seventy-five cents or less through vending machines,
37 nothing herein shall be construed as exempting food or drink from the
38 tax imposed under subdivision (d) of section eleven hundred five of this
39 article.
40 § 4. Subparagraph 15 of paragraph j of subdivision 1 of section 54 of
41 the state finance law, as added by chapter 430 of the laws of 1997, is
42 amended to read as follows:
43 (15) article twenty-eight of the tax law, except taxes, penalties and
44 interest imposed by section eleven hundred five-D of the tax law;
45 § 5. Subdivisions (g) and (k) of section 1817 of the tax law, subdivi-
46 sion (g) as amended by chapter 412 of the laws of 1986 and subdivision
47 (k) as amended by chapter 3 of the laws of 2004, are amended to read as
48 follows:
49 (g) Any person (1) who willfully fails to charge separately [the] any
50 tax or taxes imposed under article twenty-eight of this chapter or to
51 state [such] any such tax or taxes separately on any bill, statement,
52 memorandum or receipt issued or employed by [him] such person upon which
53 the tax is required to be stated separately as provided in subdivision
54 (a) of section eleven hundred thirty-two or section eleven hundred
55 five-D of this chapter; or (2) who shall refer or cause reference to be
S. 60--A 179 A. 160--A
1 made to any such tax or taxes in a form or manner other than that
2 required by such article twenty-eight, shall be guilty of a misdemeanor.
3 (k) The penalties provided for in this section shall not preclude
4 prosecution pursuant to the penal law with respect to the willful fail-
5 ure of any person to pay over to the state any sales tax imposed by
6 section eleven hundred four, eleven hundred five, eleven hundred five-D,
7 eleven hundred seven, eleven hundred eight or eleven hundred nine of
8 this chapter or by any local law adopted by any city or county pursuant
9 to article twenty-nine of this chapter, whenever such person has been
10 required to collect and has collected any such sales tax. In any such
11 prosecution under the penal law, a person who has been required to
12 collect and has collected any such tax shall be deemed to have acted in
13 a fiduciary character with respect to the state or a political subdivi-
14 sion thereof, and the tax or taxes collected shall be deemed to have
15 been entrusted to such person by the state or a political subdivision
16 thereof.
17 § 6. Subdivisions (a) and (b) of section 92-dd of the state finance
18 law, as added by section 89 of part B of chapter 58 of the laws of 2005,
19 are amended to read as follows:
20 (a) On and after April first, two thousand five, such fund shall
21 consist of the revenues heretofore and hereafter collected or required
22 to be deposited pursuant to paragraph (a) of subdivision eighteen of
23 section twenty-eight hundred seven-c, and sections twenty-eight hundred
24 seven-j, twenty-eight hundred seven-s and twenty-eight hundred seven-t
25 of the public health law, [section] sections four hundred eighty-two and
26 eleven hundred five-D of the tax law and required to be credited to the
27 tobacco control and insurance initiatives pool, subparagraph (O) of
28 paragraph four of subsection (j) of section four thousand three hundred
29 one of the insurance law, section twenty-seven of part A of chapter one
30 of the laws of two thousand two and all other moneys credited or trans-
31 ferred thereto from any other fund or source pursuant to law.
32 (b) The pool administrator under contract with the commissioner of
33 health pursuant to section twenty-eight hundred seven-y of the public
34 health law shall continue to collect moneys required to be collected or
35 deposited pursuant to paragraph (a) of subdivision eighteen of section
36 twenty-eight hundred seven-c, and sections twenty-eight hundred seven-j,
37 twenty-eight hundred seven-s and twenty-eight hundred seven-t of the
38 public health law, and shall deposit such moneys in the HCRA resources
39 fund. The comptroller shall deposit moneys collected or required to be
40 deposited pursuant to [section] sections four hundred eighty-two and
41 eleven hundred five-D of the tax law and required to be credited to the
42 tobacco control and insurance initiatives pool, subparagraph (O) of
43 paragraph four of subsection (j) of section four thousand three hundred
44 one of the insurance law, section twenty-seven of part A of chapter one
45 of the laws of two thousand two and all other moneys credited or trans-
46 ferred thereto from any other fund or source pursuant to law in the HCRA
47 resources fund.
48 § 7. This act shall take effect June 1, 2009, and shall apply to sales
49 and charges made, uses occurring and services rendered on and after such
50 date, in accordance with applicable transitional provisions in section
51 1106 of the tax law.
52 PART II
53 Section 1. Section 1 of part J of chapter 405 of the laws of 1999,
54 amending the real property tax law relating to improving the adminis-
S. 60--A 180 A. 160--A
1 tration of the school tax relief (STAR) program, as amended by section 3
2 of part PP-1 of chapter 57 of the laws of 2008, is amended to read as
3 follows:
4 Section 1. Notwithstanding the provisions of article 5 of the general
5 construction law, the provisions of the tax law amended by sections
6 94-a, 94-d and 94-g of chapter 2 of the laws of 1995 are hereby revived
7 and shall continue in full force and effect as they existed on March 31,
8 1999 [through May 31, 2010, when upon such date they shall expire and be
9 repealed]. Sections 1, 2, 3, 4, and 5, and such part of section 10 of
10 chapter 336 of the laws of 1999 as relates to providing for the effec-
11 tiveness of such sections 1, 2, 3, 4 and 5 shall be nullified in effect
12 on the effective date of this section, except that the amendments made
13 to: paragraph (2) of subdivision a of section 1612 of the tax law by
14 such section 1; and subdivision b of section 1612 of the tax law by such
15 section 2; and the repeal of section 152 of chapter 166 of the laws of
16 1991 made by such section 5 shall continue to remain in effect.
17 § 2. Paragraph 1 of subdivision a of section 1612 of the tax law, as
18 amended by chapter 336 of the laws of 1999, is amended to read as
19 follows:
20 (1) sixty percent of the total amount for which tickets have been sold
21 for a lawful lottery game introduced on or after the effective date of
22 this paragraph[, subject to the following provisions:
23 (A) drawings in such game shall be held during no more than thirteen
24 hours each day, no more than eight hours of which shall be consecutive;
25 (B) such game shall be available only on premises occupied by licensed
26 lottery sales agents, subject to the following provisions:
27 (i) if the licensee holds a license issued pursuant to the alcoholic
28 beverage control law to sell alcoholic beverages for consumption on the
29 premises, then not less than twenty-five percent of the gross sales must
30 result from sales of food;
31 (ii) if the licensee does not hold a license issued pursuant to the
32 alcoholic beverage control law to sell alcoholic beverages for consump-
33 tion on the premises, then the premises must have a minimum square
34 footage greater than two thousand five hundred square feet;
35 (iii) notwithstanding the foregoing provisions, television equipment
36 that automatically displays the results of such drawings may be
37 installed and used without regard to the percentage of food sales or the
38 square footage if such premises are used as:
39 (I) a commercial bowling establishment, or
40 (II) a facility authorized under the racing, pari-mutuel wagering and
41 breeding law to accept pari-mutuel wagers;
42 (C) the rules for the operation of such game shall be as prescribed by
43 regulations promulgated and adopted by the division, provided however,
44 that such rules shall provide that no person under the age of twenty-one
45 may participate in such games on the premises of a licensee who holds a
46 license issued pursuant to the alcoholic beverage control law to sell
47 alcoholic beverages for consumption on the premises; and, provided,
48 further, that such regulations may be revised on an emergency basis not
49 later than ninety days after the enactment of this paragraph in order to
50 conform such regulations to the requirements of this paragraph]; or
51 § 3. This act shall take effect immediately.
52 PART JJ
53 Section 1. Section 1617 of the tax law, as added by section 3 of part
54 D of chapter 383 of the laws of 2001, is amended to read as follows:
S. 60--A 181 A. 160--A
1 § 1617. Joint, multi-jurisdiction, and out-of-state lottery. The
2 director may enter into an agreement with a government-authorized group
3 of one or more other jurisdictions providing for the operation and
4 administration of a joint, multi-jurisdiction, and out-of-state
5 lottery[, except the director may not agree to participate in the games
6 of more than one such group at any single time]. Such a joint, multi-
7 jurisdiction, and out-of-state lottery game or games may include a
8 combined drawing, a combined prize pool, the transfer of sales and prize
9 monies to other jurisdictions as may be necessary, and such other coop-
10 erative arrangements as the director deems necessary or desirable.
11 § 2. This act shall take effect immediately.
12 PART KK
13 Section 1. The alcoholic beverage control law is amended by adding a
14 new section 79-e to read as follows:
15 § 79-e. Grocery or drug store wine license. 1. Any person may apply
16 to the authority for a license to sell from the licensed premises wine
17 in sealed containers for consumption off such premises.
18 2. No such license shall be issued, however, to any person for any
19 premises other than a grocery store, as defined in subdivision thirteen
20 of section three of this chapter, or a drug store, as defined in subdi-
21 vision twelve of section three of this chapter.
22 3. (a) Notwithstanding any other provision of this chapter, except for
23 good cause shown, the authority shall issue a grocery store or drug
24 store wine license to the holder of a license to sell beer at retail for
25 consumption off the premises pursuant to section fifty-four of this
26 chapter, or beer and wine products at retail for consumption off the
27 premises pursuant to section fifty-four-a of this chapter, at the
28 request of such licensee.
29 (b) For the purposes of this subdivision, the premises of the grocery
30 store or drug store wine licensee shall be the same as the premises
31 licensed under section fifty-four or fifty-four-a of this chapter.
32 (c) Notwithstanding any other provisions of this chapter, any license
33 issued pursuant to this section shall run concurrently with the underly-
34 ing license under section fifty-four or fifty-four-a of this chapter,
35 and shall be deemed expired at such time as the underlying license
36 expires.
37 4. Notwithstanding any other provision of this chapter, the authority
38 may issue a license under this section to the holder of a license to
39 sell wine at retail for consumption off the premises pursuant to section
40 seventy-nine of this article, provided that: (a) the licensee meets the
41 requirements of subdivision two of this section; and (b) upon issuance
42 of a license, the licensee under this section surrenders the license
43 certificate issued pursuant to such section seventy-nine.
44 5. Such application shall be in such form and shall contain such
45 information as shall be required by the rules of the authority and shall
46 be accompanied by a check or draft in the amount required by this arti-
47 cle for such license.
48 6. Notwithstanding any other provisions of this chapter, any person
49 receiving a license pursuant to this section shall not be subject to the
50 provisions of subdivision two, three or four of section seventy-nine of
51 this article.
52 7. Notwithstanding any other provisions of this chapter, any person
53 receiving a license pursuant to this section shall not be subject to the
54 provisions of section eighty of this article.
S. 60--A 182 A. 160--A
1 8. Notwithstanding any other provisions of this chapter, any person
2 receiving a license pursuant to this section shall not be subject to the
3 provisions of subdivision two, paragraph (a) of subdivision three, para-
4 graph (b) of subdivision ten, or paragraph (c) of subdivision ten of
5 section one hundred five of this chapter.
6 9. (a) A one-time franchise fee shall be paid for by each retail
7 outlet to the state liquor authority. This franchise fee is hereby
8 imposed at a rate of 0.46 of one percent of the total gross sales of the
9 licensee in the previous year.
10 (b) In the event an applicant has been in business for less than
11 twelve months prior to the filing of the application for this license,
12 such applicant shall, in accordance with the rules of the authority,
13 remit an estimate of its franchise fee based on square footage at a
14 licensee's location pursuant to the following schedule:
15 Square Footage atFranchise Fee
16 Licensee's LocationPer Location
17 0-999$825
18 1,000-1,999$1,650
19 2,000-3,999$3,300
20 4,000-9,999$8,250
21 10,000-19,999$16,500
22 20,000-24,999$33,000
23 25,000-29,999$82,500
24 30,000-39,999$132,000
25 40,000 and greater$495,000
26 Within sixty days after such licensee shall have been in business for
27 twelve months, such licensee shall submit to the authority, in accord-
28 ance with the rules of the authority, a statement showing its actual
29 total gross sales for the first twelve months of operation and the fran-
30 chise fee due pursuant to paragraph (a) of this subdivision. In the
31 event the franchise fee determined pursuant to such paragraph exceeds
32 the amount paid pursuant to this paragraph, the licensee shall remit
33 payment for the balance of the required franchise fee within such
34 sixty-day period. Failure to remit payment within such sixty-day period
35 shall be grounds for cancellation or revocation of such license. In the
36 event that the franchise fee due pursuant to paragraph (a) of this
37 subdivision is less than the amount paid pursuant to this paragraph, the
38 licensee shall be entitled to a refund equal to the difference between
39 the franchise fee paid pursuant to this paragraph and the amount due
40 pursuant to paragraph (a) of this subdivision.
41 (c) No license shall be issued pursuant to this section until the
42 franchise fee or estimated franchise fee under this subdivision required
43 by either paragraph (a) or (b) of this subdivision has been paid in
44 full.
45 (d) The franchise fee shall be deposited and disposed of in the same
46 manner as any license fee as provided in section one hundred twenty-five
47 of this chapter.
48 10. The state liquor authority may make such rules as it deems neces-
49 sary to carry out the provisions of this section.
50 § 2. Section 83 of the alcoholic beverage control law is amended by
51 adding a new subdivision 8 to read as follows:
52 8. The annual fee for a grocery or drug store wine license pursuant to
53 section seventy-nine-e of this article shall be one hundred ten dollars.
54 Where, however, the applicant is the holder of two or more such
55 licenses, the annual fee for each additional license shall be double the
56 amount hereinabove set forth.
S. 60--A 183 A. 160--A
1 § 3. Subdivision 2-a of section 100 of the alcoholic beverage control
2 law, as amended by chapter 249 of the laws of 2002, is amended to read
3 as follows:
4 2-a. No retailer shall employ, or permit to be employed, or shall
5 suffer to work, on any premises licensed for retail sale hereunder, any
6 person under the age of eighteen years, as a hostess, waitress, waiter,
7 or in any other capacity where the duties of such person require or
8 permit such person to sell, dispense or handle alcoholic beverages;
9 except that: (1) any person under the age of eighteen years and employed
10 by any person holding a grocery or drug store beer license shall be
11 permitted to handle and deliver beer and wine products for such licen-
12 see, (2) any person under the age of eighteen employed as a cashier by a
13 person holding a grocery or drug store beer license shall be permitted
14 to record and receive payment for beer and wine product sales when in
15 the presence of and under the direct supervision of a person eighteen
16 years of age or over, (2-a) any person under the age of eighteen years
17 and employed by a person holding a grocery store or drug store beer
18 license as either a cashier or in any other position to which handling
19 of containers which may have held alcoholic beverages is necessary,
20 shall be permitted to handle the containers if such have been presented
21 for redemption in accordance with the provisions of title ten of article
22 twenty-seven of the environmental conservation law, [and] (3) any person
23 under the age of eighteen years employed as a dishwasher, busboy, or
24 other such position as to which handling of containers which may have
25 held alcoholic beverages is necessary shall be permitted to do so under
26 the direct supervision of a person of legal age to purchase alcoholic
27 beverages in the state, (4) any person under the age of eighteen years
28 and employed by any person holding a grocery or drug store wine license
29 shall be permitted to handle and deliver wine for such licensee, and (5)
30 any person under the age of eighteen employed as a cashier by a person
31 holding a grocery or drug store wine license shall be permitted to
32 record and receive payment for wine when in the presence of and under
33 the direct supervision of a person eighteen years of age or over.
34 § 4. This act shall take effect on the one hundred eightieth day after
35 it shall have become a law.
36 PART LL
37 Section 1. Paragraphs (a), (b), (c), and (d) of subdivision 1 of
38 section 424 of the tax law, paragraph (a) as amended by section 1 of
39 part V of chapter 63 of the laws of 2000, paragraph (b) as amended by
40 chapter 490 of the laws of 1993, and paragraphs (c) and (d) as amended
41 by chapter 170 of the laws of 1994, are amended to read as follows:
42 (a) [Eleven] Twenty-four cents per gallon upon beers;
43 (b) [Eighteen and ninety-three hundredths] Fifty-one cents per gallon
44 upon still wines, except cider containing more than three and two-tenths
45 per centum of alcohol by volume, upon which the tax shall be three and
46 seventy-nine hundredths cents per gallon;
47 (c) [Eighteen and ninety-three hundredths] Fifty-one cents per gallon
48 upon artificially carbonated sparkling wines, except artificially carbo-
49 nated sparkling cider containing more than three and two-tenths per
50 centum of alcohol by volume, upon which the tax shall be three and
51 seventy-nine hundredths cents per gallon;
52 (d) [Eighteen and ninety-three hundredths] Fifty-one cents per gallon
53 upon natural sparkling wines, except natural sparkling cider containing
54 more than three and two-tenths per centum of alcohol by volume, upon
S. 60--A 184 A. 160--A
1 which the tax shall be three and seventy-nine hundredths cents per
2 gallon;
3 § 2. (a) If a contract for the sale of beer and wines was entered into
4 prior to April 1, 2009 and delivery under that contract is made within
5 the state on or after April 1, 2009, the beer and wines sold under that
6 contract will be subject to tax under article 18 of the tax law, as
7 amended by this act, at the time of delivery.
8 (b) In order to subject beer and wines in this state on April 1, 2009
9 to the increased taxes imposed by section one of this act, a special
10 floor tax is imposed on each wholesaler or retailer (as defined in the
11 alcoholic beverage control law) or other sellers of beer and wine, other
12 than those registered as distributors under article 18 of the tax law,
13 at the rates shown below with respect to all beer and wines in the
14 possession or under the control on April 1, 2009 of those wholesalers,
15 retailers and other sellers of beer and wines for purposes of sale in
16 the state. Additionally, any person who is a distributor or manufacturer
17 under article 18 of the tax law is subject to this special floor tax on
18 any beer and wines in his or her possession or under his or her control
19 on which the tax under article 18 of the tax law was already imposed.
20 The rate of the floor tax will be:
21 (1) On beer, thirteen cents per gallon; and
22 (2) On wines, thirty-two and seven hundredths cents per gallon.
23 This floor tax will be due and payable to the commissioner of taxation
24 and finance on or before June 22, 2009.
25 (c) Except as provided in this section, all the provisions of articles
26 18 and 37 of the tax law will apply to floor taxes imposed by this
27 section.
28 (d) The commissioner of taxation and finance is authorized to
29 prescribe any terms and conditions the commissioner deems advisable and
30 require any reports the commissioner deems necessary to effectuate the
31 provisions of this section.
32 (e) The commissioner of taxation and finance may request from the
33 state liquor authority, and the state liquor authority is authorized and
34 directed to provide, any cooperation and assistance, including data,
35 that will enable the commissioner to carry out the imposition and imple-
36 mentation of the floor tax.
37 § 3. This act shall take effect April 1, 2009.
38 PART MM
39 Section 1. Paragraph 1 of subdivision (a) of section 1160 of the tax
40 law, as added by chapter 190 of the laws of 1990, is amended to read as
41 follows:
42 (1) [On and after June first, nineteen hundred ninety, in] In addition
43 to any tax imposed under any other article of this chapter, there is
44 hereby imposed and there shall be paid a tax of [five] six percent upon
45 the receipts from every rental of a passenger car which is a retail sale
46 of such passenger car.
47 § 2. Paragraph 2 of subdivision (a) of section 1160 of the tax law, as
48 amended by chapter 166 of the laws of 1991, is amended to read as
49 follows:
50 (2) Except to the extent that a passenger car rental described in
51 paragraph one of this subdivision has already been or will be subject to
52 the tax imposed under such paragraph and except as otherwise exempted
53 under this article, there is hereby imposed on every person and there
54 shall be paid a use tax for the use within this state [on and after June
S. 60--A 185 A. 160--A
1 first, nineteen hundred ninety] of any passenger car rented by the user,
2 which is a purchase at retail of such passenger car, but not including
3 any lease of a passenger car to which subdivision (i) of section eleven
4 hundred eleven of this chapter applies. For purposes of this paragraph,
5 the tax shall be at the rate of [five] six percent of the consideration
6 given or contracted to be given for such property, or for the use of
7 such property, including any charges for shipping or delivery as
8 described in paragraph three of subdivision (b) of section eleven
9 hundred one of this chapter, but excluding any credit for tangible
10 personal property accepted in part payment and intended for resale.
11 § 3. This act shall take effect June 1, 2009, and shall apply to sales
12 made or uses occurring on or after such date in accordance with applica-
13 ble transitional provisions in sections 1106 and 1217 of the tax law.
14 PART NN
15 Section 1. Subdivision (b) of section 1101 of the tax law is amended
16 by adding a new paragraph 34 to read as follows:
17 (34) "Transportation service" shall mean the service of transporting,
18 carrying or conveying a person or persons by any means, including but
19 not limited to (i) taxicab, charter, black car, limousine, coach, for-
20 hire vehicle, commuter van, or other vehicle service, (ii) horse-drawn
21 cab or coach service, and pedicab service, (iii) intra-state charter
22 bus, vessel, train, and plane service, (iv) charter fishing service, and
23 (v) sightseeing service regardless of whether scheduled or the means of
24 conveyance; whether one-way or round-trip; whether to a single destina-
25 tion or to multiple destinations; and whether the compensation paid by
26 or on behalf of the passenger is based on mileage, trip, time consumed
27 or any other basis. A service that begins and ends in this state is
28 deemed intra-state even if it passes outside this state during a portion
29 of the trip. However, transportation service does not include (i)
30 "commuter service" consisting of mass transportation service, local
31 transit service, subway or commuter rail service, and other scheduled
32 service; (ii) vessel or ferry service described in subdivision (b) of
33 section eleven hundred nineteen or paragraph forty-three of subdivision
34 (a) of section eleven hundred fifteen of this article, (iii) the trans-
35 portation of children to and from schools and day camps operated by an
36 entity or organization described in paragraph one, two, three, four, or
37 six of subdivision (a) of section eleven hundred sixteen of this arti-
38 cle, (iv) transportation of persons in connection with funerals, or (v)
39 ambulance, ambulette, or emergency service transportation, whether
40 ground, water, or air. Transportation service includes transporting,
41 carrying, or conveying property of the person being transported, whether
42 owned by or in the care of such person. In addition to what is included
43 in the definition of "receipt" in paragraph three of this subdivision,
44 receipts from the sale of transportation service subject to tax include
45 any handling, carrying, baggage, booking service, administrative or
46 other charge, of any nature, made in conjunction with the transportation
47 service.
48 § 2. Subdivision (c) of section 1105 of the tax law is amended by
49 adding a new paragraph 13 to read as follows:
50 (13) Transportation service, whether or not any tangible personal
51 property is transferred in conjunction therewith, and regardless of
52 whether the charge is paid in this state or out of state so long as the
53 service is provided in this state.
S. 60--A 186 A. 160--A
1 § 3. Section 1106 of the tax law is amended by adding a new subdivi-
2 sion (1) to read as follows:
3 (1) The tax imposed by paragraph thirteen of subdivision (c) of
4 section eleven hundred five of this part must be paid with respect to
5 receipts from all sales of services on or after the effective date of
6 such paragraph although rendered or agreed to be rendered under a prior
7 contract. Where a service is sold on a monthly, quarterly, yearly, or
8 other term basis, the charge for the service will be subject to the tax
9 imposed by that paragraph to the extent that the charge is applicable to
10 any period on or after the date the tax becomes effective, and the
11 charge must be apportioned on the basis of the ratio of the number of
12 days falling within the period to the total number of days in the full
13 term or period.
14 § 4. Section 1111 of the tax law is amended by adding a new subdivi-
15 sion (o) to read as follows:
16 (o) (1) If a transportation service subject to tax under paragraph
17 thirteen of subdivision (c) of section eleven hundred five of this part
18 is provided by taxicab, black car, limousine or other vehicle, and the
19 owner or lessor of the vehicle leases or rents the vehicle to an unre-
20 lated person who provides the transportation service, such as a taxicab
21 driver who drives a taxicab owned by another person, then (i) the owner
22 or lessor is deemed to provide the transportation service during the day
23 or other period that the unrelated person uses the vehicle to provide
24 the service, (ii) the owner or lessor is deemed to be the vendor of the
25 service provided by the unrelated person, (iii) the tax imposed by such
26 paragraph thirteen is deemed to be imposed on the unrelated person,
27 (iv) the owner or lessor, as vendor, must collect the tax from the unre-
28 lated person, based on the local jurisdiction where the driver takes
29 delivery of the vehicle and pay over such tax required to be collected
30 with its returns required to be filed under this article, and (v) the
31 receipts subject to the tax equal two hundred percent of the amount that
32 the owner or lessor charges the unrelated person for the use of the
33 vehicle during the day or other period, including any charge related to
34 insurance, maintenance, repairs, fuel, the use, rental or economic value
35 of any taxicab or other license or medallion, and any other charge made
36 by the owner or lessor to the unrelated person for the day or other
37 period, regardless of whether the unrelated person transported, carried
38 or conveyed any person or earned any fares with that vehicle during that
39 day or other period.
40 (2) Notwithstanding any law to the contrary:
41 (i) Any municipality or public corporation that establishes or regu-
42 lates taxicab, black car, limousine or other vehicle service fares must
43 adjust those fares to include therein the tax imposed by paragraph thir-
44 teen of subdivision (c) of section eleven hundred five of this part and
45 the taxes imposed by other sections of this part and pursuant to the
46 authority of article twenty-nine of this chapter on the services taxed
47 by such paragraph thirteen and must require that any meters or other
48 devices in the vehicles or otherwise that measure fares be adjusted to
49 include these taxes, as the same are from time to time imposed and as
50 the rates of those taxes may change.
51 (ii) Any person that sells the services described in paragraph one of
52 this subdivision must adjust any meters or other devices in the vehicles
53 or otherwise that measure fares so that they timely reflect any change
54 in the rates of the taxes described in subparagraph (i) of this para-
55 graph. Neither the failure of a municipal or other public corporation to
56 adjust fares nor the failure of any person to adjust the meters or
S. 60--A 187 A. 160--A
1 devices will relieve any person from the obligation to collect such
2 taxes timely, at the correct combined rate.
3 (3) For purposes of this subdivision, "unrelated person" means a
4 person other than a related person as defined for purposes of section
5 fourteen of this chapter.
6 § 5. Subdivision (z) of section 1115 of the tax law is amended by
7 adding a new paragraph 5 to read as follows:
8 (5) The exemptions provided in this subdivision shall not apply to the
9 tax imposed by paragraph thirteen of subdivision (c) of section eleven
10 hundred five of this article or to similar taxes imposed pursuant to the
11 authority of article twenty-nine of this chapter.
12 § 6. Section 1213 of the tax law, as amended by chapter 651 of the
13 laws of 1999, is amended to read as follows:
14 § 1213. Deliveries outside the jurisdiction where sale is made. Where
15 a sale of tangible personal property or services, including prepaid
16 telephone calling services, but not including other services described
17 in subdivision (b) of section eleven hundred five of this chapter,
18 including an agreement therefor, is made in any city, county or school
19 district, but the property sold, the property upon which the services
20 were performed or prepaid telephone calling or other service is or will
21 be delivered to the purchaser elsewhere, such sale shall not be subject
22 to tax by such city, county or school district. However, if delivery
23 occurs or will occur in a city, county or school district imposing a tax
24 on the sale or use of such property, prepaid telephone calling or other
25 services, the vendor shall be required to collect from the purchaser, as
26 provided in section twelve hundred fifty-four of this article, the
27 aggregate sales or compensating use taxes imposed by the city, if any,
28 county and school district in which delivery occurs or will occur, for
29 distribution by the commissioner to such taxing jurisdiction or juris-
30 dictions. For the purposes of this section delivery shall be deemed to
31 include transfer of possession to the purchaser and the receiving of the
32 property or of the service, including prepaid telephone calling service,
33 by the purchaser. Notwithstanding the foregoing, where a transportation
34 service described in paragraph thirteen of subdivision (c) of section
35 eleven hundred five of this chapter begins in one jurisdiction but ends
36 in another jurisdiction, any tax imposed by this article shall be due
37 the jurisdiction or jurisdictions where the service commenced.
38 § 7. This act shall take effect June 1, 2009.
39 PART OO
40 Section 1. Paragraph 2 of subdivision (d) of section 1101 of the tax
41 law, as added by chapter 93 of the laws of 1965, is amended to read as
42 follows:
43 (2) Admission charge. The amount paid for admission, including any
44 dues (other than dues paid to a club described in paragraph thirteen of
45 this subdivision), membership fee, participation fee, usage fee, or
46 service charge, and any charge for entertainment [or], amusement, or
47 sports, and any amount paid for the use of any devices, rides, games,
48 equipment, apparatus, or any other facilities therefor at a place of
49 amusement other than lawfully operated video lottery terminals.
50 § 2. Paragraph 4 of subdivision (d) of section 1101 of the tax law, as
51 added by chapter 93 of the laws of 1965, is amended to read as follows:
52 (4) Charge of a roof garden, cabaret or other similar place. Any
53 charge made for admission, refreshment, service, or merchandise or for
S. 60--A 188 A. 160--A
1 the use of any facilities for entertainment or amusement at a roof
2 garden, cabaret or other similar place.
3 § 3. Paragraph 6 of subdivision (d) of section 1101 of the tax law, as
4 amended by chapter 470 of the laws of 1979, is amended to read as
5 follows:
6 (6) Dues. Any dues or membership fee including any assessment, irre-
7 spective of the purpose for which made, and any charges for social,
8 athletic or sports privileges or facilities[, except charges for sports
9 privileges or facilities offered to members' guests which would other-
10 wise be exempt if paid directly by such guests], and for the use of
11 other facilities furnished or leased by a club to its members or guests.
12 § 4. Paragraph 10 of subdivision (d) of section 1101 of the tax law,
13 as added by chapter 93 of the laws of 1965, is amended to read as
14 follows:
15 (10) Place of amusement. Any place where a performance is given, a
16 motion picture or other theater, fair, race track, exhibition, circus,
17 golf course, athletic field, sporting arena, club (other than a club
18 described in paragraph thirteen of this subdivision), gymnasium, bowling
19 alley, shooting gallery, swimming pool, beach, skating rink, skiing
20 mountain or facility, campground, park and any other place where any
21 equipment, apparatus, exhibit, display, or other facilities for enter-
22 tainment, amusement, or sports are provided, including amusement devices
23 or rides and games of chance or skill, whether or not contained in an
24 enclosure and whether or not coin-operated.
25 § 5. Paragraph 12 of subdivision (d) of section 1101 of the tax law,
26 as amended by chapter 609 of the laws of 1986, is amended to read as
27 follows:
28 (12) Roof garden, cabaret or other similar place. Any roof garden,
29 cabaret or other similar place which furnishes a public performance for
30 profit, including any hotel, restaurant, hall or other public place
31 where music and dancing privileges or any other entertainment, except
32 instrumental or mechanical music alone, are afforded to patrons in
33 conjunction with the serving or selling of food, refreshment or merchan-
34 dise, but not including a place where merely live dramatic or musical
35 arts performances are offered in conjunction with the serving or selling
36 of food, refreshment or merchandise, so long as such serving or selling
37 of food, refreshment or merchandise is merely incidental to such
38 performances. A performance will be regarded as being furnished for
39 profit even though the charge made for admission, refreshment, service
40 or merchandise is not increased by reason of the furnishing of that
41 performance.
42 § 6. Paragraph 13 of subdivision (d) of section 1101 of the tax law,
43 as added by chapter 93 of the laws of 1965, is amended to read as
44 follows:
45 (13) Social [or], athletic, or sporting club. Any club or organization
46 of which a material purpose or activity is social [or], athletic or
47 sporting, or any combination of those purposes or activities.
48 § 7. The opening paragraph of paragraph (i) of subdivision (d) of
49 section 1105 of the tax law, as amended by chapter 405 of the laws of
50 1971, is amended to read as follows:
51 The receipts from every sale of beer, wine or other alcoholic beverag-
52 es or any other drink of any nature, or from every sale of food and
53 drink of any nature or of food alone, when sold in or by restaurants,
54 taverns or other establishments in this state, or by caterers, including
55 in the amount of such receipts any cover, minimum, entertainment, admis-
S. 60--A 189 A. 160--A
1 sion, or other charge made to patrons or customers (except those
2 receipts taxed pursuant to subdivision (f) of this section):
3 § 8. Paragraph 1 of subdivision (f) of section 1105 of the tax law, as
4 amended by section 100 of part A of chapter 389 of the laws of 1997, is
5 amended to read as follows:
6 (1) Any admission charge [where such admission charge is in excess of
7 ten cents] to or for the use of any place of amusement in the state[,
8 except charges for admission to race tracks, boxing, sparring or wrestl-
9 ing matches or exhibitions which charges are taxed under any other law
10 of this state, or dramatic or musical arts performances, or live circus
11 performances, or motion picture theaters, and except charges to a patron
12 for admission to, or use of, facilities for sporting activities in which
13 such patron is to be a participant, such as bowling alleys and swimming
14 pools] or to or for the use of any equipment, apparatus, devices, rides,
15 games, or other facilities at that place of amusement, other than a
16 lawfully operated video lottery terminal, regardless of whether the
17 charge is paid in this state or out of state so long as the place of
18 amusement is in this state. For any person having the permanent use or
19 possession of a box or seat or a lease or a license, other than a season
20 ticket, for the use of a box or seat at a place of amusement, the tax
21 shall be upon the amount for which a similar box or seat is sold for
22 each performance or exhibition at which the box or seat is used or
23 reserved by the holder, licensee or lessee, and shall be paid by the
24 holder, licensee or lessee.
25 § 9. Paragraph 2 of subdivision (f) of section 1105 of the tax law, as
26 amended by chapter 673 of the laws of 1995, is amended to read as
27 follows:
28 (2) (i) The dues paid to any social [or], athletic or sporting club in
29 this state if the dues of an active annual member, exclusive of the
30 initiation fee, are in excess of ten dollars per year, and on the initi-
31 ation fee alone, regardless of the amount of dues, if such initiation
32 fee is in excess of ten dollars, regardless of whether the dues or
33 initiation fee is paid in this state or out of this state so long as the
34 club is in this state. Where the tax on dues applies to any such social
35 [or], athletic or sporting club, the tax shall be paid by all members,
36 other than honorary members, thereof regardless of the amount of their
37 dues, and shall be paid on all dues or initiation fees [for a period
38 commencing on or after August first, nineteen hundred sixty-five]. In
39 the case of a life membership, the tax shall be upon the amount paid as
40 life membership dues, however, a life member, other than an honorary
41 member, paying an annual sales tax, based on the dues of an active annu-
42 al member, shall continue such payments until the total amount of such
43 tax paid is equal to the amount of tax that would have otherwise been
44 due had the tax been imposed at the time such paid life membership has
45 been purchased and at the then applicable rate.
46 (ii) Dues and initiation fees paid to the following shall not be
47 subject to the tax imposed by this paragraph:
48 (A) A fraternal society, order or association operating under the
49 lodge system; or
50 (B) Any fraternal association of students of a college or university[;
51 (C) A homeowners association. For purposes of this subparagraph, a
52 homeowners association is an association (including a cooperative hous-
53 ing or apartment corporation) (I) the membership of which is comprised
54 exclusively of owners or residents of residential dwelling units,
55 including owners of units in a condominium, and including shareholders
56 in a cooperative housing or apartment corporation, where such units are
S. 60--A 190 A. 160--A
1 located in a defined geographical area such as a housing development or
2 subdivision and (II) which operates social or athletic facilities
3 located in such area for use (whether or not exclusive) by such owners
4 or residents].
5 § 10. Paragraph 3 of subdivision (f) of section 1105 of the tax law,
6 as amended by chapter 72 of the laws of 1971, is amended to read as
7 follows:
8 (3) The amount paid as charges of a roof garden, cabaret or other
9 similar place in the state, regardless of whether paid in this state or
10 out of state so long as the place is in this state.
11 § 11. Section 1122 of the tax law is REPEALED.
12 § 12. Section 1123 of the tax law is REPEALED.
13 § 13. Paragraph 4 of subdivision (a) of section 1210 of the tax law,
14 as amended by section 5 of part SS-1 of chapter 57 of the laws of 2008,
15 is amended to read as follows:
16 (4) Notwithstanding any other provision of law to the contrary, any
17 local law enacted by any city of one million or more that imposes the
18 taxes authorized by this subdivision (i) may omit the exception provided
19 in subparagraph (ii) of paragraph three of subdivision (c) of section
20 eleven hundred five of this chapter for receipts from laundering, dry-
21 cleaning, tailoring, weaving, pressing, shoe repairing and shoe shining;
22 (ii) may impose the tax described in paragraph six of subdivision (c) of
23 section eleven hundred five of this chapter at a rate in addition to the
24 rate prescribed by this section not to exceed two percent in multiples
25 of one-half of one percent; (iii) shall provide that the tax described
26 in paragraph six of subdivision (c) of section eleven hundred five of
27 this chapter does not apply to facilities owned and operated by the city
28 or an agency or instrumentality of the city or a public corporation the
29 majority of whose members are appointed by the chief executive officer
30 of the city or the legislative body of the city or both of them; (iv)
31 shall not include any tax on receipts from, or the use of, the services
32 described in paragraph seven of subdivision (c) of section eleven
33 hundred five of this chapter; (v) shall provide that, for purposes of
34 the tax described in subdivision (e) of section eleven hundred five of
35 this chapter, "permanent resident" means any occupant of any room or
36 rooms in a hotel for at least one hundred eighty consecutive days with
37 regard to the period of such occupancy; [(vi) may omit the exception
38 provided in paragraph one of subdivision (f) of section eleven hundred
39 five of this chapter for charges to a patron for admission to, or use
40 of, facilities for sporting activities in which the patron is to be a
41 participant, such as bowling alleys and swimming pools;] (vii) shall not
42 provide the clothing and footwear exemption in paragraph thirty of
43 subdivision (a) of section eleven hundred fifteen of this chapter but
44 must exempt clothing and footwear and any item used or consumed to make
45 or repair exempt clothing and which becomes a physical component part of
46 that exempt clothing; (viii) shall omit the exemption provided in para-
47 graph forty-one of subdivision (a) of section eleven hundred fifteen of
48 this chapter; (ix) shall omit the exemption provided in subdivision (c)
49 of section eleven hundred fifteen of this chapter insofar as it applies
50 to fuel, gas, electricity, refrigeration and steam, and gas, electric,
51 refrigeration and steam service of whatever nature for use or consump-
52 tion directly and exclusively in the production of gas, electricity,
53 refrigeration or steam; and (x) shall omit, unless such city elects
54 otherwise, the provision for refund or credit contained in clause six of
55 subdivision (a) of section eleven hundred nineteen of this chapter.
S. 60--A 191 A. 160--A
1 § 14. Paragraph 2 of subdivision (b) of section 1210 of the tax law,
2 as amended by section 36 of part Y of chapter 63 of the laws of 2000, is
3 amended to read as follows:
4 (2) In respect to the taxes described in such subdivisions (b), (d),
5 (e) and (f) of section eleven hundred five of this chapter and in such
6 clauses (E), (G) and (H) of subdivision (a) of section eleven hundred
7 ten of this chapter and the transitional provisions in such section
8 eleven hundred six covering those taxes, all provisions of a local law
9 imposing any such tax, except as to rate and except as otherwise
10 provided herein, shall be identical with the corresponding provisions in
11 such article twenty-eight of this chapter, including the definition and
12 exemption provisions of such article, so far as the provisions of such
13 article twenty-eight of this chapter can be made applicable to the taxes
14 imposed by such city or county and with such limitations and special
15 provisions as are set forth in this article; provided, however, that any
16 local law enacted by any city of one million or more, imposing the taxes
17 authorized by this subdivision, shall omit the exemption provided in
18 subdivision (c) of section eleven hundred fifteen of this chapter [and
19 may omit the exception provided in paragraph (1) of subdivision (f) of
20 section eleven hundred five of this chapter for charges to a patron for
21 admission to, or use of, facilities for sporting activities in which
22 such patron is to be a participant, such as bowling alleys and swimming
23 pools. The transitional provisions contained in subdivision (d) of
24 section eleven hundred six of this chapter shall apply in the same
25 manner and to the same extent to a tax imposed by omitting the exception
26 in paragraph (1) of subdivision (f) of section eleven hundred five of
27 this chapter, as described in the preceding sentence, except that an
28 equivalent date shall be substituted to accord with the date when the
29 tax so imposed becomes effective]. The tax described in any one of such
30 subdivisions (b), (d), (e) and (f) of section eleven hundred five of
31 this chapter, including the related transitional provisions in [such]
32 section eleven hundred six of this chapter, and the taxes described in
33 clauses (E), (G) and (H) of subdivision (a) of section eleven hundred
34 ten of this chapter where the tax described in such subdivision (b) of
35 section eleven hundred five of this chapter is imposed, may not be
36 imposed by a city or county unless the local law, ordinance or resol-
37 ution imposes such tax so as to include all portions and all types of
38 receipts, charges or rents, as the case may be, subject to state tax
39 under the applicable subdivision of section eleven hundred five of this
40 chapter and uses subject to tax under the applicable provisions of
41 section eleven hundred ten of this chapter where the tax described in
42 subdivision (b) of section eleven hundred five of this chapter is
43 imposed.
44 § 15. Subdivision (h) of section 1210 of the tax law, as added by
45 chapter 168 of the laws of 1975, is amended to read as follows:
46 (h) Notwithstanding the provisions of subdivision (f) of this section,
47 any city having a population of one million or more in which a municipal
48 assistance corporation is created under article ten of the public
49 authorities law shall continue to be authorized and empowered to adopt
50 and amend local laws, imposing taxes, at a rate not to exceed four
51 percent on the receipts of sales from the services of laundering, dry-
52 cleaning, tailoring, weaving, pressing, shoe repairing and shoe shin-
53 ing[, and charges to a patron for admission to, or use of, facilities
54 for sporting activities in which such patron is to be a participant such
55 as bowling alleys and swimming pools]. Such taxes shall be administered,
S. 60--A 192 A. 160--A
1 collected and distributed by the [state tax commission] commissioner as
2 provided in subpart B of part III and in part IV of this article.
3 § 16. This act shall take effect June 1, 2009, and shall apply in
4 accordance with applicable transitional provisions in sections 1106 and
5 1217 of the tax law.
6 PART PP
7 Section 1. Paragraph 9 of subdivision (b) of section 1101 of the tax
8 law, as amended by chapter 61 of the laws of 1989, is amended to read as
9 follows:
10 (9) Capital improvement. (i) An addition or alteration to real proper-
11 ty which:
12 (A) Substantially adds to the value of the real property, or appre-
13 ciably prolongs [the] its useful life [of the real property]; and
14 (B) Becomes part of the real property or is permanently affixed to
15 [the real property] it so that removal would cause material damage to
16 [the property] it or to the article itself; and
17 (C) Is intended to become a permanent installation; and
18 (D) In the case of a building or other structure, constitutes new
19 construction or a new addition to or total reconstruction of existing
20 construction.
21 (ii) A mobile home shall not constitute [an addition or] a capital
22 improvement [to real property, property or land], regardless of the
23 nature of its installation.
24 (iii) Notwithstanding the provisions of subparagraph (i) of this para-
25 graph: (A) Floor covering, such as carpet, carpet padding, linoleum and
26 vinyl roll flooring, carpet tile, linoleum tile and vinyl tile,
27 installed as the initial finished floor covering in new construction or
28 a new addition to or total reconstruction of existing construction shall
29 constitute [an addition or] a capital improvement [to real property,
30 property or land]; and
31 (B) Floor covering, such as carpet, carpet padding, linoleum and vinyl
32 roll flooring, carpet tile, linoleum tile and vinyl tile, installed
33 other than as described in clause (A) of this subparagraph shall not
34 constitute [an addition or] a capital improvement [to real property,
35 property or land].
36 § 2. Subparagraph (iii) of paragraph 3 of subdivision (c) of section
37 1105 of the tax law, as separately amended by chapters 103 and 471 of
38 the laws of 1981, is amended to read as follows:
39 (iii) for installing property which, when installed, will constitute
40 [an addition or] a capital improvement [to real property, property or
41 land, as the terms real property, property or land are defined in the
42 real property tax law as such term capital improvement is defined in
43 paragraph nine of subdivision (b) of section eleven hundred one of this
44 chapter]; and
45 § 3. Paragraph 5 of subdivision (c) of section 1105 of the tax law, as
46 amended by chapter 321 of the laws of 2005, is amended to read as
47 follows:
48 (5) Maintaining, servicing or repairing real property[, property or
49 land, as such terms are defined in the real property tax law], whether
50 the services are performed in or outside of a building, as distinguished
51 from adding to or improving such real property[, property or land,] by a
52 capital improvement [as such term capital improvement is defined in
53 paragraph nine of subdivision (b) of section eleven hundred one of this
54 article], but excluding (i) services rendered by an individual who is
S. 60--A 193 A. 160--A
1 not in a regular trade or business offering his services to the public,
2 (ii) services rendered directly with respect to real property[, property
3 or land] used or consumed directly and predominantly in the production
4 for sale of gas or oil by manufacturing, processing, generating, assem-
5 bling, refining, mining, or extracting, (iii) services rendered with
6 respect to real property[, property or land] used or consumed predomi-
7 nantly either in the production of tangible personal property, for sale,
8 by farming or in a commercial horse boarding operation, or in both and
9 (iv) services of removal of waste material from a facility regulated as
10 a transfer station or construction and demolition debris processing
11 facility by the department of environmental conservation, provided that
12 the waste material to be removed was not generated by the facility.
13 § 4. Subdivision (e) of section 1110 of the tax law, as separately
14 amended by sections 19, 158 and 161 of chapter 166 of the laws of 1991,
15 is amended to read as follows:
16 (e) Notwithstanding the foregoing[,] provisions of this section, for
17 purposes of clause (B) of subdivision (a) of this section, there shall
18 be no tax on any portion of such price which represents the value added
19 by the user to tangible personal property which he fabricates and
20 installs to the specifications of [an addition or] a capital improvement
21 [to real property, property or land, as the terms real property, proper-
22 ty or land are defined in the real property tax law], over and above the
23 prevailing normal purchase price prior to such fabrication of such
24 tangible personal property which a manufacturer, producer or assembler
25 would charge an unrelated contractor who similarly fabricated and
26 installed such tangible personal property to the specifications of [an
27 addition or] a capital improvement [to such real property, property or
28 land].
29 § 5. Paragraph 17 of subdivision (a) of section 1115 of the tax law,
30 as amended by chapter 221 of the laws of 1971, is amended to read as
31 follows:
32 (17) Tangible personal property sold by a contractor, subcontractor or
33 [repairman] repairperson to a person other than an organization
34 described in subdivision (a) of section eleven hundred sixteen of this
35 part, for whom [he] the contractor, subcontractor or repairperson is
36 [adding to, or improving real property, property or land by] performing
37 or is about to perform a capital improvement, [or for whom he is about
38 to do any of the foregoing,] if such tangible personal property is to
39 become an integral component part of [such structure, building or] the
40 real property [; provided, however, that if such sale is made pursuant
41 to a contract irrevocably entered into before September first, nineteen
42 hundred sixty-nine, no exemption shall exist under this paragraph] upon
43 which the capital improvement is or will be performed.
44 § 6. Subparagraph (iii) of paragraph 37 of subdivision (a) of section
45 1115 of the tax law, as added by section 1 of part C of chapter 63 of
46 the laws of 2000, is amended to read as follows:
47 (iii) Receipts from the retail sale of the tangible personal property
48 exempt pursuant to subparagraph (i) of this paragraph if purchased by an
49 operator of an internet data center, shall be exempt when purchased by a
50 contractor, subcontractor or [repairman] repairperson for use as
51 described in such subparagraph (i), where such property is to become [a]
52 an integral component part of real property described in such subpara-
53 graph (i) of this paragraph upon which the capital improvement [to real
54 property] is to be performed.
S. 60--A 194 A. 160--A
1 § 7. Subparagraph (iii) of paragraph 1 of subdivision (aa) of section
2 1115 of the tax law, as added by section 2 of part T of chapter 63 of
3 the laws of 2000, is amended to read as follows:
4 (iii) The services described in paragraph five of subdivision (c) of
5 section eleven hundred five of this article when performed on property
6 described in paragraph thirty-eight of subdivision (a) of this section
7 which subsequent to its installation has become [an addition or] a capi-
8 tal improvement [to real property, property or land, as such terms are
9 defined in the real property tax law].
10 § 8. This act shall take effect June 1, 2009, and shall apply in
11 accordance with applicable transitional provisions in sections 1106 and
12 1217 of the tax law.
13 PART QQ
14 Section 1. Paragraph b of subdivision 1 of section 502 of the tax
15 law, as amended by section 1 of part E of chapter 60 of the laws of
16 2007, is amended to read as follows:
17 b. Every automotive fuel carrier shall apply to the commissioner for a
18 special certificate of registration, in place of the certificate of
19 registration described in paragraph a of this subdivision, for each
20 motor vehicle operated or to be operated by him on the public highways
21 in this state to transport automotive fuel. Provided, however, a special
22 certificate of registration shall not be required under this paragraph
23 for a tractor or other self-propelled device which, except with respect
24 to the fuel in the ordinary fuel tank intended for its propulsion,
25 transports automotive fuel solely by means of a trailer, dolly or other
26 device drawn by such tractor or other self-propelled device if a certif-
27 icate of registration prescribed by paragraph a of this subdivision has
28 been issued for the self-propelled device. Application shall be made
29 upon an application form prescribed by the commissioner. The applica-
30 tion shall be accompanied by a fee of [five] fifteen dollars for each
31 trailer, semi-trailer, dolly or other device [and fifteen dollars for
32 each self-propelled device] listed in the application. The commissioner
33 shall issue without further charge such special certificate of registra-
34 tion for each motor vehicle listed in the application or a consolidated
35 certificate of registration for all or any portion of such vehicles of
36 such carrier. All of the provisions of this article with respect to
37 certificates of registration shall be applicable to the special certif-
38 icates of registration issued to automotive fuel carriers under this
39 paragraph as if those provisions had been set forth in full in this
40 paragraph and expressly referred to the special certificates of regis-
41 tration required by this paragraph except to the extent that any such
42 provision is either inconsistent with a provision of this paragraph or
43 not relevant to the certificates of registration required by this para-
44 graph. Any certificate of registration shall not be transferable, and
45 shall be valid until revoked, suspended or surrendered. Such special
46 certificate of registration shall be maintained in the carrier's regular
47 place of business. Nothing contained in this paragraph shall in any way
48 exempt an automotive fuel carrier from payment of the taxes imposed
49 pursuant to this article.
50 § 2. Subdivision 8 of section 509 of the tax law, as amended by
51 section 5 of part E of chapter 60 of the laws of 2007, is amended to
52 read as follows:
53 8. To issue replacement certificates of registration at such times as
54 the commissioner may deem necessary for the proper and efficient
S. 60--A 195 A. 160--A
1 enforcement of the provisions of this article, but not more often than
2 once every year and to require the surrender of the then outstanding
3 certificates of registration. All of the provisions of this article with
4 respect to certificates of registration shall be applicable to replace-
5 ment certificates of registration issued hereunder, except that the
6 replacement certificate of registration shall be issued upon payment of
7 a fee of [four] fifteen dollars for each motor vehicle and [two dollars]
8 for any trailer, semi-trailer, dolly or other device drawn thereby for
9 which a certificate of registration is required to be issued under this
10 article;
11 § 3. This act shall take effect immediately.
12 PART RR
13 Section 1. The tax law is amended by adding a new section 1105-F to
14 read as follows:
15 § 1105-F. Additional state sales and compensating use tax on certain
16 luxury property. (a) Definitions. For purposes of the tax imposed by
17 this section, the following terms mean:
18 (1) Passenger motor vehicle. A motor vehicle as defined in section one
19 hundred twenty-five of the vehicle and traffic law, with a gross vehicle
20 weight of ten thousand pounds or less, but not including a vehicle
21 purchased for use exclusively in the active conduct of a trade or busi-
22 ness of transporting persons or property for compensation or hire, a
23 vehicle purchased for use exclusively in providing emergency medical
24 services, or a demonstrator vehicle.
25 (2) Vessel. A vessel, as defined in section twenty-two hundred fifty
26 of the vehicle and traffic law, but not including a commercial vessel,
27 as defined in paragraph sixteen of subdivision (b) of section eleven
28 hundred one of this article, a vessel purchased for use exclusively in
29 providing emergency medical services, or a demonstrator vessel.
30 (3) Aircraft. Any aircraft that is propelled by a motor or engine and
31 is capable of carrying one or more individuals, but not including
32 commercial aircraft as defined in paragraph seventeen of subdivision (b)
33 of section eleven hundred one of this article, an aircraft purchased for
34 use exclusively in providing emergency medical services, or a demonstra-
35 tor aircraft.
36 (4) Jewelry. All articles commonly or commercially known as jewelry,
37 whether real or imitation, including but not limited to rings, earrings,
38 necklaces, bracelets and watches, and also including loose pearls and
39 precious and semi-precious stones.
40 (5) Fur clothing and footwear. Clothing and footwear made, in whole or
41 in part, of any animal skin or part thereof with hair, fleece, or fur
42 fibers attached thereto, in either its raw or processed state, but not
43 including skins that are converted into leather or that in processing
44 have had the hair, fleece, or fur fiber completely removed.
45 (b) Imposition of additional taxes. Notwithstanding any other law to
46 the contrary, in addition to the sales and compensating use taxes
47 imposed by subdivision (a) of section eleven hundred five and subdivi-
48 sion (a) of section eleven hundred ten of this part, there are hereby
49 imposed and there shall be paid additional sales and compensating use
50 taxes, at the rate of five percent, on the retail sale or use within the
51 state of the following:
52 (1) A passenger motor vehicle to the extent that the sale price
53 exceeds sixty thousand dollars;
S. 60--A 196 A. 160--A
1 (2) A vessel to the extent that the sale price exceeds two hundred
2 thousand dollars;
3 (3) An aircraft to the extent that the sale price exceeds five hundred
4 thousand dollars;
5 (4) Jewelry or fur clothing and footwear to the extent that the sale
6 price per item of jewelry or fur clothing and footwear exceeds twenty
7 thousand dollars. An item that is ordinarily sold as a pair, such as
8 earrings or gloves, are considered to be one item for purposes of this
9 section.
10 (c) Special rules for computing receipts and consideration. Notwith-
11 standing any contrary provision of this article or other law, for
12 purposes of this section:
13 (1) Sale price has the same definition as receipt, but without any
14 deduction for tangible personal property accepted in part payment and
15 intended for resale. Sale price also includes the price of any property
16 installed on a passenger motor vehicle, vessel, or aircraft by the
17 vendor of that vehicle, vessel or aircraft within six months of the sale
18 of the vehicle, vessel or aircraft, plus any charge for installing that
19 property, but does not include the sale price of any property installed
20 on a passenger motor vehicle to make it adaptable for use by a person
21 with a disability, or the replacement of damaged, defective, or malfunc-
22 tioning property, or any charge for installing that property.
23 (2) With respect to any lease of a passenger motor vehicle, vessel, or
24 aircraft for a term of one year or more, sale price means the manufac-
25 turer's suggested retail price for that vehicle, vessel, or aircraft,
26 without any deduction for tangible personal property accepted in part
27 payment and intended for resale. The tax due under this section must be
28 collected at the time the first payment is made under the lease, option
29 to renew, or similar provision or combination of them, or as of the date
30 of registration with the commissioner of motor vehicles, whichever is
31 earlier.
32 (d) Incorporation of other provisions of this article. Except as
33 otherwise provided in this section, the taxes imposed by this section
34 will be identical to, and administered and collected in a like manner
35 as, the taxes imposed by sections eleven hundred five and eleven hundred
36 ten of this part. All the provisions of this article, including the
37 definition and exemption provisions and the provisions relating or
38 applicable to the administration, collection, and disposition of the
39 taxes imposed by those sections will apply to the tax imposed by this
40 section so far as those provisions can be made applicable to the tax
41 imposed by this section, with such modifications as may be necessary in
42 order to adapt the language of those provisions to the tax imposed by
43 this section. Those provisions will apply with the same force and effect
44 as if the language of those provisions had been set forth in full in
45 this section, except to the extent that any of those provisions are
46 either inconsistent with a provision of this section or are not relevant
47 to the tax imposed by this section. For purposes of this section, any
48 reference to receipt or consideration will be read as sale price as
49 defined by this section and any reference in this chapter to a tax or
50 the taxes imposed by section eleven hundred five or eleven hundred ten
51 of this part will be deemed also to refer to the tax imposed by this
52 section unless a different meaning is clearly required. Notwithstanding
53 the foregoing, the exemption provided by subdivision (z) of section
54 eleven hundred fifteen of this article shall not apply to the tax
55 imposed by this section.
S. 60--A 197 A. 160--A
1 (e) Separate statement of tax. Every person required to collect the
2 tax imposed by this section shall state, charge, and show that tax sepa-
3 rately from the price or charge, and also separately from any other tax
4 imposed by this article or other law on any sales slip, invoice,
5 receipt, or other statement or memorandum of the price or charge, paid
6 or payable, given to the customer.
7 (f) Vendor collection credit not to include tax imposed by this
8 section. The taxes imposed by, and collected or paid over under, this
9 section shall not be included or considered in computing the credit
10 allowed by subdivision (f) of section eleven hundred thirty-seven of
11 this article.
12 (g) Taxes to be in addition to any other. The taxes imposed by this
13 section shall be in addition to any other tax imposed or authorized to
14 be imposed by this chapter or other law.
15 (h) Taxes not to apply to other impositions. The taxes imposed by this
16 section shall not apply to the taxes imposed by section eleven hundred
17 seven, eleven hundred eight, or eleven hundred nine of this part or to
18 taxes authorized to be imposed by article twenty-nine of this chapter.
19 § 2. This act shall take effect June 1, 2009, and shall apply to sales
20 made or uses occurring on or after such date in accordance with applica-
21 ble transitional provisions in section 1106 of the tax law.
22 PART SS
23 Section 1. This act enacts into law major components of legislation
24 which are necessary to implement the state fiscal plan for the 2009-2010
25 state fiscal year. Each component is wholly contained within a Subpart
26 identified as Subparts A through P. The effective date for each partic-
27 ular provision contained within such Subpart is set forth in the last
28 section of such Subpart. Any provision in any section contained within a
29 Subpart, including the effective date of the Subpart, which makes a
30 reference to a section "of this act", when used in connection with that
31 particular component, shall be deemed to mean and refer to the corre-
32 sponding section of the Subpart in which it is found. Section three of
33 this Part sets forth the general effective date of this Part.
34 SUBPART A
35 Section 1. The tax law is amended by adding a new section 1703 to read
36 as follows:
37 § 1703. Information return relating to deposits and bank settlements.
38 1. Definitions. For purposes of this section, the following terms shall
39 have the following meanings:
40 (a) "Account" means any account with a bank and includes, without
41 limitation, a checking, time, interest, savings, or brokerage account.
42 (b) "Bank" means a financial institution as defined in paragraph (c)
43 of subdivision one of section seventeen hundred one of this article.
44 (c) "Cash" means currency authorized or adopted as a medium of
45 exchange by a domestic or foreign government.
46 (d) "Check" means a negotiable instrument drawn on a bank and payable
47 on demand.
48 (e) "Reportable settlement" means a final payment deposited into an
49 account holder's account, by any bank, association of banks, or other
50 payors regularly clearing items, as payment for transactions in which
51 the account holder accepted something other than a check or cash as
52 payment for goods sold or services provided.
S. 60--A 198 A. 160--A
1 2. The department shall supply each bank with a list of all regis-
2 tered sales tax vendors by December thirty-first of each year. Each bank
3 shall make an information return for each calendar year setting forth:
4 (a) the name, address, and taxpayer identification number of each
5 account holder which is a registered sales tax vendor based on the list
6 supplied by the department for that calendar year; (b) the gross amount
7 of that account holder's reportable settlements during the calendar
8 year; and (c) the gross amounts, designated as such, of each of the
9 following: cash, checks and other funds deposited into that account
10 holder's account during the calendar year. That information return shall
11 be filed electronically with the department on or before January thir-
12 ty-first of the following year.
13 3. (a) Any bank failing to file an information return required by
14 subdivision two of this section within the time prescribed or failing to
15 include correct information in that return shall, in addition to any
16 other penalty provided in this chapter or otherwise imposed by law, be
17 subject to a penalty of fifty dollars for each failure, but the total
18 amount imposed on any such bank for such failures during any calendar
19 year shall not exceed two hundred fifty thousand dollars.
20 (b) The commissioner may waive all or any portion of any penalty
21 imposed by this subdivision with respect to any violation if: (i) the
22 commissioner determines that failure to provide information or to
23 include true and correct information in a return required to be filed,
24 or to timely file a return, was due to reasonable cause and not due to
25 willful neglect; or (ii) rescinding the penalty would promote compliance
26 with the requirements of this chapter and effective tax administration.
27 § 2. This act shall take effect immediately; provided however that
28 information returns required to be filed by January 31, 2010 shall
29 include information regarding reportable settlements and deposits that
30 were made on and after January 1, 2009.
31 SUBPART B
32 Section 1. Section 1142 of the tax law is amended by adding a new
33 subdivision 6-a to read as follows:
34 6-a. (a) To use generally accepted statistical sampling techniques to
35 determine the amount of tax due under this article. Any such determi-
36 nation will not be deemed to be an estimate based on an external index
37 and will not be precluded by any provision of section eleven hundred
38 thirty-eight of this part or any other law. The commissioner is not
39 authorized under this subdivision to use these sampling techniques to
40 determine tax due in the case of a person whose "gross receipts or
41 sales", as that term is used for federal income tax reporting purposes,
42 are less than one million dollars in each of the three taxable years for
43 federal income tax purposes immediately preceding the calendar year in
44 which the audit is commenced, or, if that information is not available
45 for those years, in the three most recent of those years (or a lesser
46 number of years if only the lesser number of years is available) for
47 which that information is available, unless the person consents in writ-
48 ing that the commissioner may use these techniques to determine tax.
49 (b) The techniques to determine tax authorized by this subdivision
50 will be in addition to other methods authorized by law, and nothing in
51 this subdivision may be construed to limit the use of those other meth-
52 ods. Nor may anything in this subdivision or other provision of law be
53 construed to limit the commissioner's authority and power to use gener-
54 ally accepted statistical sampling techniques to examine records
S. 60--A 199 A. 160--A
1 required to be kept by this article and returns and reports required to
2 be filed or submitted by this article. No such examination by statis-
3 tical sampling techniques or the results thereof will be deemed to be an
4 estimate based on an external index or precluded by any provision of
5 section eleven hundred thirty-eight of this part or other law.
6 § 2. This act shall take effect immediately; provided, however, that
7 the provisions of this act shall, with respect to the determination of
8 tax due under article 28 of the tax law or under or pursuant to the
9 authority of other provisions of the tax law which incorporate or make
10 reference to such article 28, apply to any tax due that has not been
11 assessed on the date this act becomes a law.
12 SUBPART C
13 Section 1. Section 1135 of the tax law is amended by adding a new
14 subdivision (h) to read as follows:
15 (h) Notwithstanding the provisions of section three hundred five and
16 three hundred nine of the state technology law or any other law, the
17 commissioner may require any person who has elected to maintain in an
18 electronic format any portion of the records required to be maintained
19 by that person under this article, to make the electronic records avail-
20 able and accessible to the commissioner, notwithstanding that the
21 records are also maintained in a hard copy format.
22 § 2. Section 1145 of the tax law is amended by adding a new subdivi-
23 sion (i) to read as follows:
24 (i) Any person required to make or maintain records under this article
25 (but not including the records required under section eleven hundred
26 forty-two-A of this part) who fails to make or maintain or make avail-
27 able to the commissioner these records is subject to a penalty of one
28 thousand dollars for the first quarter or part thereof for which the
29 failure occurs and five thousand dollars for each additional quarterly
30 period or part thereof for which the failure occurs. This penalty is in
31 addition to any other penalty provided for in this article but may not
32 be imposed and collected more than once for failures for the same quar-
33 terly period or part thereof. If the commissioner determines that a
34 failure to make or maintain or make available records in any quarter was
35 entirely due to reasonable cause and not to willful neglect, the commis-
36 sioner must remit the penalty imposed for that quarter. These penalties
37 will be paid and disposed of in the same manner as other revenues from
38 this article. These penalties will be determined, assessed, collected,
39 paid and enforced in the same manner as the tax imposed by this article,
40 and all the provisions of this article relating to tax will be deemed
41 also to apply to the penalties imposed by this subdivision. For purposes
42 of the penalty imposed by this subdivision, a person will be considered
43 to have failed to make or maintain the required records when the records
44 made or maintained by that person for a quarterly period make it virtu-
45 ally impossible to verify sales receipts or the taxability of those
46 receipts and to conduct a complete audit.
47 § 3. Section 1145 of the tax law is amended by adding a new subdivi-
48 sion (j) to read as follows:
49 (j) Any person required to make or maintain records under this article
50 who fails to present and make available these records in an auditable
51 form is subject to a penalty of one thousand dollars for each quarterly
52 period or part thereof for which records maintained by that person are
53 not presented and made available by that person in auditable form, even
54 if these records are adequate to verify credits, receipts, and the taxa-
S. 60--A 200 A. 160--A
1 bility thereof and to perform a complete audit. This penalty is in addi-
2 tion to any other penalty provided for in this article, but will not be
3 imposed and collected more than once for these failures for the same
4 quarterly period or part thereof. If the commissioner determines that
5 any failure described in this subdivision for a quarterly period was
6 entirely due to reasonable cause and not to willful neglect, the commis-
7 sioner must remit the penalty imposed for that quarter. The penalties
8 imposed by this subdivision will be paid and disposed of in the same
9 manner as other revenues from this article. These penalties will be
10 determined, assessed, collected, paid and enforced in the same manner as
11 the tax imposed by this article, and all the provisions of this article
12 relating to tax will be deemed also to apply to the penalties imposed by
13 this subdivision. For purposes of the penalty imposed by this subdivi-
14 sion, a person will be considered to have failed to present and make
15 records available in auditable form when the records presented by that
16 person for that quarter lack sufficient organization, such as by date,
17 invoice number, sales receipts, or sequential numbering, or are other-
18 wise inadequate (without reorganizing, reordering or otherwise rearrang-
19 ing the records into an auditable form) to permit direct reconciliation
20 of the receipts, invoices or other source documents with the entries for
21 the quarterly period in the books and records and on the returns of that
22 person.
23 § 4. Section 1145 of the tax law is amended by adding a new subdivi-
24 sion (k) to read as follows:
25 (k) Any person who, having elected to maintain in an electronic format
26 any portion or all of the records he or she is required to make and
27 maintain by this article, fails to present and make these records avail-
28 able and accessible to the commissioner in electronic format, is subject
29 to a penalty of five thousand dollars for each quarterly period or part
30 thereof for which these electronic records are not presented and made
31 available and accessible upon request, notwithstanding that the records
32 may also be maintained and available in hard copy format. This penalty
33 is in addition to any other penalty provided for in this article, but
34 may not be imposed and collected more than once for a failure for the
35 same quarterly period or part thereof. Provided, however, nothing in
36 this subdivision will prevent the separate imposition, if applicable, of
37 any penalty imposed by subdivision (i) or (j) of this section for the
38 same quarterly period or part thereof. If the commissioner determines
39 that the failure to present and make electronically maintained records
40 available and accessible for a quarterly period was entirely due to
41 reasonable cause and not to willful neglect, the commissioner must remit
42 the penalty imposed for that quarter. These penalties will be paid and
43 disposed of in the same manner as other revenues from this article.
44 These penalties will be determined, assessed, collected, paid and
45 enforced in the same manner as the tax imposed by this article, and all
46 the provision of this article relating to tax will be deemed also to
47 apply to the penalty imposed by this subdivision. For purposes of the
48 penalty imposed by this subdivision, a failure to present and make
49 available and accessible a record maintained in electronic format
50 includes not only the denial of access to the requested records that
51 were maintained electronically, but also the failure to make available
52 to the commissioner the information, knowledge, or means necessary to
53 access and otherwise use the electronically maintained records in the
54 inspection and examination of these records.
55 § 5. This act shall take effect immediately and apply to failures
56 occurring on and after such date, except that subdivision (i) of section
S. 60--A 201 A. 160--A
1 1145 of the tax law, as added by section two of this act, shall only
2 apply for records required to be made and maintained for sales tax quar-
3 terly periods commencing on or after such date.
4 SUBPART D
5 Section 1. Subsection (g) of section 685 of the tax law, as amended by
6 chapter 9 of the laws of 1976, is amended to read as follows:
7 (g) Willful failure to collect and pay over tax.-- Any person required
8 to collect, truthfully account for, and pay over the tax imposed by this
9 article who willfully fails to collect such tax or truthfully account
10 for and pay over such tax or willfully attempts in any manner to evade
11 or defeat the tax or the payment thereof, shall, in addition to other
12 penalties provided by law, be liable to a penalty equal to the sum of
13 (i) the total amount of the tax evaded, or not collected, or not
14 accounted for and paid over, (ii) the interest that has accrued on the
15 total amount of tax evaded on the date this penalty is first imposed
16 until this penalty is paid with interest thereon, and (iii) the addition
17 to tax provided by subsection (a) of this section. No addition to tax
18 under subsections (b) or (e) of this section shall be imposed for any
19 offense to which this subsection applies. The tax commission shall have
20 the power, in its discretion, to waive, reduce or compromise any penalty
21 under this subsection.
22 § 2. This act shall take effect immediately and shall apply to taxable
23 years beginning on or after January 1, 2009.
24 SUBPART E
25 Section 1. Paragraph (d) of subdivision 1 of section 289-b of the tax
26 law, as amended by chapter 61 of the laws of 1989, is amended to read as
27 follows:
28 (d) If the failure to pay any tax within the time required by or
29 pursuant to this article is due to fraud, in lieu of the penalties and
30 interest provided for in paragraphs (a) and (b) of this subdivision,
31 there shall be added to the tax (i) a penalty of [fifty per centum of]
32 three times the amount of tax due, plus (ii) interest on such unpaid tax
33 at the underpayment rate set by the commissioner of taxation and finance
34 pursuant to subdivision twenty-sixth of section one hundred seventy-one
35 of this chapter for the period beginning on the last day prescribed by
36 this article for the payment of such tax (determined without regard to
37 any extension of time for paying) and ending on the day on which such
38 tax is paid[, plus (iii) for the period beginning on the last day
39 prescribed by this article for the payment of such tax (determined with-
40 out regard to any extension of time for paying) and ending on the day
41 the amount of tax due is finally determined or, if earlier, on the day
42 on which such tax is paid, an amount equal to fifty per centum of the
43 interest payable under subparagraph (ii) of this paragraph on that
44 portion of the unpaid tax which is attributable to fraud].
45 § 2. Subdivision 1 of section 289-b of the tax law is amended by
46 adding a new paragraph (e-1) to read as follows:
47 (e-1) In addition to any other penalties that may be imposed by law,
48 any of the following penalties may be imposed.
49 (i) Any person who fails to file an informational return under this
50 article on or before the prescribed date, must pay a penalty of fifteen
51 hundred dollars for the first violation and a penalty of three thousand
S. 60--A 202 A. 160--A
1 dollars for each subsequent violation, unless it can be shown that such
2 failure is due to reasonable cause and not willful neglect.
3 (ii) Any person who fails to file an informational return within sixty
4 days of the date prescribed for filing must pay a penalty of two thou-
5 sand dollars for the first violation and a penalty of four thousand
6 dollars for each subsequent violation, unless it can be shown that such
7 failure is due to reasonable cause and not willful neglect.
8 (iii) Any person who fails to file a complete informational return
9 must pay a penalty of fifteen hundred dollars for the first violation
10 and a penalty of three thousand dollars for each subsequent violation,
11 unless it can be shown that such failure is due to reasonable cause and
12 not willful neglect.
13 (iv) If any person makes a statement on an informational return and,
14 as of the time of the statement, there was no reasonable basis for that
15 statement, that person must pay a penalty of two thousand dollars for
16 the first violation and a penalty of four thousand dollars for each
17 subsequent violation.
18 § 3. Paragraph (d) of subdivision 1 of section 433 of the tax law, as
19 amended by chapter 61 of the laws of 1989, is amended to read as
20 follows:
21 (d) If the failure to pay any tax within the time required by or
22 pursuant to this article is due to fraud, in lieu of the penalties and
23 interest provided for in paragraphs (a) and (b) of this subdivision,
24 there shall be added to the tax (i) a penalty of [fifty per centum of]
25 three times the amount of tax due, plus (ii) interest on such unpaid tax
26 at the underpayment rate set by the commissioner of taxation and finance
27 pursuant to subdivision twenty-sixth of section one hundred seventy-one
28 of this chapter for the period beginning on the last day prescribed by
29 this article for the payment of such tax (determined without regard to
30 any extension of time for paying) and ending on the day on which such
31 tax is paid[, plus (iii) for the period beginning on the last day
32 prescribed by this article for the payment of such tax (determined with-
33 out regard to any extension of time for paying) and ending on the day
34 the amount of tax due is finally determined or, if earlier, on the day
35 on which such tax is paid, an amount equal to fifty per centum of the
36 interest payable under subparagraph (ii) of this paragraph on that
37 portion of the unpaid tax which is attributable to fraud].
38 § 4. Subparagraph (iv) of paragraph (a) of subdivision 1 of section
39 481 of the tax law, as amended by chapter 61 of the laws of 1989, is
40 amended to read as follows:
41 (iv) If the failure to pay any tax within the time required by or
42 pursuant to this article is due to fraud, in lieu of the penalties and
43 interest provided for in subparagraphs (i) and (ii) of this paragraph,
44 there shall be added to the tax (A) a penalty of [fifty per centum of]
45 three times the amount of tax due, plus (B) interest on such unpaid tax
46 at the underpayment rate set by the commissioner of taxation and finance
47 pursuant to subdivision twenty-sixth of section one hundred seventy-one
48 of this chapter for the period beginning on the last day prescribed by
49 this article for the payment of such tax (determined without regard to
50 any extension of time for paying) and ending on the day on which such
51 tax is paid[, plus (C) for the period beginning on the last day
52 prescribed by this article for the payment of such tax (determined with-
53 out regard to any extension of time for paying) and ending on the day
54 the amount of tax due is finally determined or, if earlier, on the day
55 on which such tax is paid, an amount equal to fifty per centum of the
S. 60--A 203 A. 160--A
1 interest payable under clause (B) of this subparagraph on that portion
2 of the unpaid tax which is attributable to fraud].
3 § 5. Paragraph (d) of subdivision 1 of section 512 of the tax law, as
4 amended by chapter 61 of the laws of 1989, is amended to read as
5 follows:
6 (d) If the failure to pay any tax within the time required by or
7 pursuant to this article is due to fraud, in lieu of the penalties and
8 interest provided for in paragraphs (a) and (b) of this subdivision,
9 there shall be added to the tax (i) a penalty of [fifty per centum of]
10 three times the amount of tax due, plus (ii) interest on such unpaid tax
11 at the underpayment rate set by the commissioner of taxation and finance
12 pursuant to subdivision twenty-sixth of section one hundred seventy-one
13 of this chapter for the period beginning on the last day prescribed by
14 this article for the payment of such tax (determined without regard to
15 any extension of time for paying) and ending on the day on which such
16 tax is paid[, plus (iii) for the period beginning on the last day
17 prescribed by this article for the payment of such tax (determined with-
18 out regard to any extension of time for paying) and ending on the day
19 the amount of tax due is finally determined or, if earlier, on the day
20 on which such tax is paid, an amount equal to fifty per centum of the
21 interest payable under subparagraph (ii) of this paragraph on that
22 portion of the unpaid tax which is attributable to fraud].
23 § 6. Subdivision (d) of section 527 of the tax law, as added by chap-
24 ter 170 of the laws of 1994, is amended to read as follows:
25 (d) Fraud. If the failure to pay any tax within the time required by
26 or pursuant to this article is due to fraud, in lieu of the penalties
27 provided for in subdivision (b) of this section, there shall be added to
28 the tax (1) a penalty of [fifty percent of] three times the amount of
29 tax due[, plus (2) for the period beginning on the last day prescribed
30 by this article for the payment of such tax (determined without regard
31 to any extension of time for paying) and ending on the day the amount of
32 tax due is finally determined or, if earlier, on the day on which such
33 tax is paid, an interest penalty equal to fifty percent of the interest
34 payable under subdivision (a) of this section on that portion of the
35 unpaid tax which is attributable to fraud].
36 § 7. Paragraph 1 of subsection (e) of section 685 of the tax law, as
37 amended by chapter 65 of the laws of 1985, is amended to read as
38 follows:
39 (1) If any part of a deficiency is due to fraud, there shall be added
40 to the tax an amount equal to [fifty percent of] three times the defi-
41 ciency.
42 § 8. Paragraph 2 of subsection (e) of section 685 of the tax law is
43 REPEALED and paragraphs 3 and 4 are renumbered paragraphs 2 and 3.
44 § 9. Subsection (q) of section 685 of the tax law, as added by chapter
45 65 of the laws of 1985, is amended to read as follows:
46 (q) Frivolous tax returns and specified frivolous submissions.-- (1)
47 If any individual files what purports to be a return of any tax imposed
48 by this article but which does not contain information on which the
49 substantial correctness of the self-assessment may be judged, or
50 contains information that on its face indicates that the self-assessment
51 is substantially incorrect; and such conduct is due to a position which
52 is frivolous, including a position identified as frivolous under para-
53 graph three of this subsection, or an intent [(which appears on the
54 purported return)] to delay or impede the administration of this arti-
55 cle, then such individual shall pay a penalty not exceeding five
S. 60--A 204 A. 160--A
1 [hundred] thousand dollars. This penalty shall be in addition to any
2 other penalty provided by law.
3 (2) Penalty for specified frivolous submissions. (A) Any person who
4 submits a specified frivolous submission shall pay a penalty of five
5 thousand dollars. This penalty shall be in addition to any other penalty
6 provided by law.
7 (B) The term "specified frivolous submission" means a specified
8 submission if any portion of that submission (i) is based on a position
9 that the commissioner has identified as frivolous under paragraph three
10 of this subdivision, or (ii) reflects a desire to delay or impede the
11 administration of this chapter.
12 (C) The term "specified submission" means a request for conciliation
13 conference, a petition to the division of tax appeals, an application
14 for an installment payment agreement, or an offer in compromise.
15 (D) If the commissioner provides an individual with notice that a
16 submission is a specified frivolous submission and that person withdraws
17 the submission within thirty days after such notice, the penalty imposed
18 under this paragraph will not apply with respect to that submission.
19 (3) Listing of frivolous positions. The commissioner will prescribe
20 (and periodically revise) a list of positions that the commissioner has
21 identified as frivolous for purposes of this subsection.
22 (4) Reduction of penalty. The commissioner may reduce the amount of
23 any penalty imposed under this section if the commissioner determines
24 that such a reduction would promote compliance with and administration
25 of this chapter.
26 § 10. Section 685 of the tax law is amended by adding a new subsection
27 (cc) to read as follows:
28 (cc) False or fraudulent document penalty. Any taxpayer that submits a
29 false or fraudulent document to the department will be subject to a
30 penalty of one hundred dollars per document submitted, or five hundred
31 dollars per tax return submitted. This penalty will be in addition to
32 any other penalty or addition provided by law.
33 § 11. Paragraph 1 of subsection (f) of section 1085 of the tax law, as
34 amended by chapter 65 of the laws of 1985, is amended to read as
35 follows:
36 (1) If any part of a deficiency is due to fraud, there shall be added
37 to the tax an amount equal to [fifty percent of] three times the defi-
38 ciency.
39 § 12. Paragraph 2 of subsection (f) of section 1085 of the tax law is
40 REPEALED and paragraph 3 is renumbered paragraph 2.
41 § 13. Section 1085 of the tax law is amended by adding a new
42 subsection (u) to read as follows:
43 (u) False or fraudulent document penalty. Any taxpayer that submits a
44 false or fraudulent document to the department will be subject to a
45 penalty of one hundred dollars per document submitted, or five hundred
46 dollars per tax return submitted. This penalty will be in addition to
47 any other penalty or addition provided by law.
48 § 14. Paragraph 2 of subdivision (a) of section 1145 of the tax law,
49 as amended by section 12 of part R of chapter 85 of the laws of 2002, is
50 amended to read as follows:
51 (2) If the failure to pay or pay over any tax to the commissioner
52 within the time required by this article is due to fraud, in lieu of the
53 penalties and interest provided for in subparagraphs (i) and (ii) of
54 paragraph one of this subdivision, there shall be added to the tax (i) a
55 penalty of [fifty percent of] three times the amount of the tax due,
56 plus (ii) interest on such unpaid tax at the rate of fourteen percent
S. 60--A 205 A. 160--A
1 per annum or the underpayment rate of interest set by the commissioner
2 pursuant to section eleven hundred forty-two of this part, whichever is
3 greater, for the period beginning on the last day prescribed by this
4 article for the payment of such tax (determined without regard to any
5 extension of time for paying) and ending on the day on which such tax is
6 paid[, plus (iii) for the period beginning on the last day prescribed by
7 this article for the payment of such tax (determined without regard to
8 any extension of time for paying) and ending on the day the amount of
9 tax due is finally determined or, if earlier, on the day on which such
10 tax is paid, an amount equal to fifty percent of the interest payable
11 under subparagraph (ii) of this paragraph, on that portion of the unpaid
12 tax which is attributable to fraud].
13 § 15. Section 1145 of the tax law is amended by adding two new subdi-
14 visions (i) and (j) to read as follows:
15 (i) Aiding or assisting in the giving of fraudulent returns, reports,
16 statements or other documents. Any person who, with the intent that tax
17 be evaded, for a fee or other compensation or as an incident to the
18 performance of other services for which that person receives compen-
19 sation, aids or assists in, or procures, counsels, or advises the prepa-
20 ration or presentation under this article, or in connection with any
21 matter arising under this article, of any return, report, declaration,
22 statement or other document that is fraudulent or false as to any mate-
23 rial matter, or supplies any false or fraudulent information, whether or
24 not such falsity or fraud is with the knowledge or consent of the person
25 authorized or required to present that return, report, declaration,
26 statement or other document, will pay a penalty not exceeding five thou-
27 sand dollars. The definitions in subsection (l) of section ten hundred
28 eighty-five of this chapter apply for the purposes of this penalty.
29 (j) False or fraudulent document penalty. Any taxpayer that submits a
30 false or fraudulent document to the department will be subject to a
31 penalty of one hundred dollars per document submitted, or five hundred
32 dollars per tax return submitted. This penalty will be in addition to
33 any other penalty provided by law.
34 § 16. Subdivision (iii) of section 12 of part N of chapter 61 of the
35 laws of 2005 amending the tax law relating to certain transactions and
36 related information, as amended by section 1 of part DD-1 of chapter 57
37 of the laws of 2008, is amended to read as follows:
38 (iii) provided, further, that the provisions of this act, except
39 section five of this act, shall expire and be deemed repealed July 1,
40 2011. The commissioner of taxation and finance shall cause to be
41 prepared a written report on the tax shelter law. Notwithstanding any
42 other provision of law to the contrary, such report shall include, but
43 not be limited to, statistical information regarding the listed and
44 reportable transactions and avoidance transactions under this act. A
45 copy of such report shall be delivered to the governor, the temporary
46 president of the senate, and the speaker of the assembly no later than
47 April 1, 2007; provided, that, such expiration and repeal shall not
48 affect any requirement imposed pursuant to this act.
49 § 17. This act shall take effect immediately and apply to returns and
50 other documents filed or required to be filed and actions taken and
51 omissions occurring on or after the date this act becomes a law;
52 provided however, that sections seven through thirteen of this act shall
53 apply to taxable years beginning on or after January 1, 2009.
54 SUBPART F
S. 60--A 206 A. 160--A
1 Section 1. Paragraphs (b) and (e) of subdivision 3-a of section 170 of
2 the tax law, as added by chapter 282 of the laws of 1986, are amended to
3 read as follows:
4 (b) A request for a conciliation conference shall be applied for in
5 the manner as set forth by regulation of the commissioner and, notwith-
6 standing any provision of law to the contrary, shall suspend the running
7 of the period of limitations for the filing of a petition protesting
8 such notice and requesting a hearing, except that the recipient of a
9 written notice described in paragraph (h) of this subdivision will have
10 thirty days from the time such request of discontinuance is made to
11 petition the division of tax appeals for a hearing. [To discontinue the
12 conciliation proceeding, the recipient of the notice shall make a
13 request in writing and such person shall have ninety days from the time
14 such request of discontinuance is made to petition the division of tax
15 appeals for a hearing.] The commissioner shall notify the division of
16 tax appeals when any person requests a conference or requests to discon-
17 tinue such conference.
18 (e) A conciliation order shall be rendered within thirty days after
19 the proceeding is concluded and such order shall, in the absence of a
20 showing of fraud, malfeasance or misrepresentation of a material fact,
21 be binding upon the department and the person who requested the confer-
22 ence, except such order shall not be binding on such person if such
23 person petitions for the hearing provided for under this chapter within
24 ninety days after the conciliation order is issued, or, for a concil-
25 iation order affirming a written notice described in paragraph (h) of
26 this subdivision, within thirty days after the conciliation order is
27 issued, notwithstanding any other provision of law to the contrary.
28 § 2. Subdivision 3-a of section 170 the tax law is amended by adding a
29 new paragraph (h) to read as follows:
30 (h) Notwithstanding any provision of law to the contrary, any person
31 who seeks review by the bureau of conciliation and mediation services of
32 a written notice that advises that person of (i) the proposed cancella-
33 tion, revocation, or suspension of a license, permit, registration, or
34 other credential issued under the authority of this chapter, (ii) the
35 denial of an application for a license, permit, registration, or other
36 credential issued under the authority of this chapter excluding an
37 application to renew a certificate of authority filed pursuant to para-
38 graph five of subdivision (a) of section one thousand one hundred thir-
39 ty-four of this chapter and any other law, or, (iii) the imposition of a
40 fraud penalty under this chapter, must request a conciliation conference
41 within thirty days of receipt of that notice.
42 § 3. Section 2008 of the tax law, as amended by chapter 401 of the
43 laws of 1987, is amended to read as follows:
44 § 2008. Commencement of proceedings. 1. All proceedings in the divi-
45 sion of tax appeals shall be commenced by the filing of a petition with
46 the division of tax appeals protesting any written notice of the divi-
47 sion of taxation which has advised the petitioner of a tax deficiency, a
48 determination of tax due, a denial of a refund or credit application, a
49 cancellation, revocation or suspension of a license, permit or registra-
50 tion, a denial of an application for a license, permit or registration
51 or any other notice which gives a person the right to a hearing in the
52 division of tax appeals under this chapter or other law.
53 2. Expedited hearings. (a) Notwithstanding any provision law to the
54 contrary, any person who receives a written notice that advises that
55 person of (i) the proposed cancellation, revocation, or suspension of a
56 license, permit, registration, or other credential issued under the
S. 60--A 207 A. 160--A
1 authority of this chapter, (ii) the denial of an application for a
2 license, permit, registration, or other credential issued under the
3 authority of this chapter excluding an application to renew a certif-
4 icate of authority filed pursuant to paragraph five of subdivision (a)
5 of section one thousand one hundred thirty-four of this chapter and any
6 other law, or, (iii) the imposition of a fraud penalty under this chap-
7 ter, must file a petition with the division of tax appeals within thirty
8 days of receipt of that notice (unless that person has requested a
9 conciliation conference as provided in subdivision three-a of section
10 one hundred seventy of this chapter), or the cancellation, revocation,
11 suspension, denial, or penalty will be permanently and irrevocably
12 fixed. An expedited hearing must be scheduled within ten business days
13 of receipt of the petition.
14 (b) In the case of any expedited hearing provided for under this
15 subdivision, the administrative law judge must render a decision within
16 thirty days from receipt of the petition. When exception is taken to an
17 administrative law judge's determination, the tax appeals tribunal must
18 issue its decision within three months from receipt of the petition. Any
19 request by the petitioner that delays the expedited hearing process will
20 extend the time limitations imposed on the tribunal or the administra-
21 tive law judge to issue a decision or determination. The tribunal or
22 administrative law judge may not approve any postponement or other delay
23 without a showing of exigent circumstances by the moving party and must
24 render a default determination or decision against the dilatory party
25 for any unwarranted delay.
26 (c) In any case where an expedited hearing is required under this
27 subdivision, if the commissioner believes that the collection of any tax
28 or the public safety will be jeopardized by delay, he or she may imme-
29 diately cancel, revoke, or suspend a license, permit, registration, or
30 other credential issued under the authority of this chapter before the
31 commencement of those proceedings. Written notice of the cancellation,
32 revocation, or suspension must be given to the licensee, permittee,
33 registrant, or otherwise credentialed person by registered or certified
34 mail or personal service as provided by the civil practice law and
35 rules. The license, permit, registration, or other credential will be
36 permanently and irrevocably cancelled, revoked, or suspended, unless the
37 licensee, permittee, registrant, or otherwise credentialed person, with-
38 in thirty days of receipt of the written notice, files a petition with
39 the division of tax appeals to review the cancellation, revocation, or
40 suspension. An expedited hearing must be scheduled within ten business
41 days of receipt of the petition.
42 § 4. This act shall take effect immediately and shall apply to notices
43 issued on and after such date.
44 SUBPART G
45 Section 1. The tax law is amended by adding a new section 1702 to read
46 as follows:
47 § 1702. Claims for awards for information relating to noncompliance
48 with the tax law. 1. The commissioner, pursuant to standards set forth
49 in regulations, is authorized to award such sums as he or she deems
50 appropriate, for information reported to the commissioner that leads to
51 the determination of substantial underpayments of tax or leads to the
52 prosecution and conviction of persons guilty of violating, attempting to
53 violate, or conspiring to violate provisions of this chapter or the
54 penal law that relate to the underpayment of taxes, the filing of false
S. 60--A 208 A. 160--A
1 or fraudulent tax documents or any registration or licensing requirement
2 of this chapter. The commissioner shall promulgate regulations to speci-
3 fy the award values, including minimum and maximum award levels. The
4 procedures for providing information and claiming awards may be set
5 forth in forms and instructions.
6 2. All awards paid pursuant to this section shall be paid, subject to
7 the availability of appropriation authority, from the general fund of
8 the state upon certification by the commissioner.
9 3. The award determined by the commissioner to be payable under this
10 section shall be either a prescribed percentage of the amount of tax
11 (but not penalty or interest) collected by the department as a result of
12 the information provided, or a lump sum award. The commissioner is
13 authorized to prescribe by regulation the circumstances when a lump sum
14 award would be payable and the amounts. In no event may a lump sum
15 award exceed one thousand dollars.
16 4. To be eligible for an award other than in instances where a lump
17 sum award is authorized, the amount of tax evaded or unpaid as a result
18 of the actions being reported pursuant to this section must be at least
19 five thousand dollars if the tax at issue is the personal income tax and
20 thirty thousand dollars for all other taxes. A person is ineligible for
21 an award if that person has been convicted of a crime relating to the
22 actions being reported under this section, or participated in that crime
23 even if not charged, or if that person planned and initiated the actions
24 that are being reported pursuant to this section.
25 5. The identity of a claimant for an award made pursuant to the
26 provisions of this section cannot be disclosed. A claim for an award may
27 be submitted by the executor, administrator, or other legal represen-
28 tative on behalf of a deceased informant. An employee or officer of the
29 department, or immediate family member of an employee or officer of the
30 department, is not eligible for any award available pursuant to the
31 provisions of this section. If, at the time a person came into
32 possession of information otherwise eligible for an award, that person
33 was an employee or officer of the department, or an immediate family
34 member of an employee or officer of the department, that information is
35 ineligible for an award.
36 § 2. This act shall take effect immediately.
37 SUBPART H
38 Section 1. Subparagraph (A) of paragraph (4) of subdivision (a) of
39 section 674 of the tax law, as amended by chapter 477 of the laws of
40 1998, is amended to read as follows:
41 (4)(A) All employers described in paragraph one of subsection (a) of
42 section six hundred seventy-one of this part, including those whose
43 wages paid are not sufficient to require the withholding of tax from the
44 wages of any of their employees, all employers required to provide the
45 wage reporting information for the employees described in subdivision
46 one of section one hundred seventy-one-a of this chapter, and all
47 employers liable for unemployment insurance contributions or for
48 payments in lieu of such contributions pursuant to article eighteen of
49 the labor law, shall file a quarterly combined withholding, wage report-
50 ing and unemployment insurance return detailing the preceding calendar
51 quarter's withholding tax transactions, such quarter's wage reporting
52 information, such quarter's unemployment insurance contributions, and
53 such other related information as the commissioner of taxation and
54 finance or the commissioner of labor, as applicable, may prescribe. In
S. 60--A 209 A. 160--A
1 addition, the return covering the last calendar quarter of each year
2 shall also include withholding reconciliation information for such
3 calendar year. Such returns shall be filed no later than the last day of
4 the month following the last day of each calendar quarter[; provided,
5 however, that an employer may provide the wage reporting information
6 covering the last calendar quarter of each year, and the withholding
7 reconciliation information for such year no later than February twenty-
8 eighth of the succeeding year].
9 § 2. This act shall take effect immediately.
10 SUBPART I
11 Section 1. The tax law is amended by adding a new section 179-a to
12 read as follows:
13 § 179-a. Tax levies upon a branch or separate office of a bank.
14 Notwithstanding section 4-106 of the uniform commercial code, any other
15 provisions of article three or four of the uniform commercial code, or
16 any other law or ruling to the contrary, a branch or separate office of
17 a bank is not a separate bank for the purpose of the receipt of notice
18 of and compliance with a tax levy served on any branch or office of the
19 same bank located within the state.
20 § 2. This act shall take effect immediately.
21 SUBPART J
22 Section 1. Subdivision 4 of section 20.40 of the criminal procedure
23 law is amended by adding a new paragraph (m) to read as follows:
24 (m) An offense under the tax law or the penal law of filing a false or
25 fraudulent return, report, document, declaration, statement, or filing,
26 or of tax evasion, fraud, or larceny resulting from the filing of a
27 false or fraudulent return, report, document, declaration, or filing in
28 connection with the payment of taxes to the state or a political subdi-
29 vision of the state, may be prosecuted in any county in which an under-
30 lying transaction reflected, reported or required to be reflected or
31 reported, in whole or part, on such return, report, document, declara-
32 tion, statement, or filing occurred.
33 § 2. Subdivision 1 of section 470.05 of the penal law, as added by
34 chapter 489 of the laws of 2000, is amended to read as follows:
35 1. Knowing that the property involved in one or more financial trans-
36 actions represents the proceeds of criminal conduct:
37 (a) he or she conducts one or more such financial transactions which
38 in fact involve the proceeds of specified criminal conduct:
39 (i) With intent to:
40 (A) promote the carrying on of criminal conduct; or
41 (B) engage in conduct constituting a felony as set forth in section
42 [eighteen hundred two,] eighteen hundred three, eighteen hundred four,
43 eighteen hundred five, [eighteen hundred seven or eighteen hundred
44 eight] or eighteen hundred six of the tax law; or
45 (ii) Knowing that the transaction or transactions in whole or in part
46 are designed to:
47 (A) conceal or disguise the nature, the location, the source, the
48 ownership or the control of the proceeds of criminal conduct; or
49 (B) avoid any transaction reporting requirement imposed by law; and
50 (b) The total value of the property involved in such financial trans-
51 action or transactions exceeds five thousand dollars; or
S. 60--A 210 A. 160--A
1 § 3. Subdivision 1 of section 470.10 of the penal law, as added by
2 chapter 489 of the laws of 2000, is amended to read as follows:
3 1. Knowing that the property involved in one or more financial trans-
4 actions represents:
5 (a) the proceeds of the criminal sale of a controlled substance, he or
6 she conducts one or more such financial transactions which in fact
7 involve the proceeds of the criminal sale of a controlled substance:
8 (i) With intent to:
9 (A) promote the carrying on of specified criminal conduct; or
10 (B) engage in conduct constituting a felony as set forth in section
11 [eighteen hundred two,] eighteen hundred three, eighteen hundred four,
12 eighteen hundred five, [eighteen hundred seven or eighteen hundred
13 eight] or eighteen hundred six of the tax law; or
14 (ii) Knowing that the transaction or transactions in whole or in part
15 are designed to:
16 (A) conceal or disguise the nature, the location, the source, the
17 ownership or the control of the proceeds of specified criminal conduct;
18 or
19 (B) avoid any transaction reporting requirement imposed by law; and
20 (iii) The total value of the property involved in such financial tran-
21 saction or transactions exceeds ten thousand dollars; or
22 (b) the proceeds of criminal conduct, he or she conducts one or more
23 such financial transactions which in fact involve the proceeds of speci-
24 fied criminal conduct:
25 (i) With intent to:
26 (A) promote the carrying on of criminal conduct; or
27 (B) engage in conduct constituting a felony as set forth in section
28 [eighteen hundred two,] eighteen hundred three, eighteen hundred four,
29 eighteen hundred five, [eighteen hundred seven or eighteen hundred
30 eight] or eighteen hundred six of the tax law; or
31 (ii) knowing that the transaction or transactions in whole or in part
32 are designed to:
33 (A) conceal or disguise the nature, the location, the source, the
34 ownership or the control of the proceeds of criminal conduct; or
35 (B) avoid any transaction reporting requirement imposed by law; and
36 (iii) The total value of the property involved in such financial tran-
37 saction or transactions exceeds fifty thousand dollars; or
38 § 4. Subdivision 1 of section 470.15 of the penal law, as added by
39 chapter 489 of the laws of 2000, is amended to read as follows:
40 1. Knowing that the property involved in one or more financial trans-
41 actions represents:
42 (a) the proceeds of the criminal sale of a controlled substance, he or
43 she conducts one or more such financial transactions which in fact
44 involve the proceeds of the criminal sale of a controlled substance:
45 (i) With intent to:
46 (A) promote the carrying on of specified criminal conduct; or
47 (B) engage in conduct constituting a felony as set forth in section
48 [eighteen hundred two,] eighteen hundred three, eighteen hundred four,
49 eighteen hundred five, [eighteen hundred seven or eighteen hundred
50 eight] or eighteen hundred six of the tax law; or
51 (ii) Knowing that the transaction or transactions in whole or in part
52 are designed to:
53 (A) conceal or disguise the nature, the location, the source, the
54 ownership or the control of the proceeds of specified criminal conduct;
55 or
56 (B) avoid any transaction reporting requirement imposed by law; and
S. 60--A 211 A. 160--A
1 (iii) The total value of the property involved in such financial tran-
2 saction or transactions exceeds fifty thousand dollars; or
3 (b) the proceeds of specified criminal conduct, he or she conducts one
4 or more such financial transactions which in fact involve the proceeds
5 of specified criminal conduct:
6 (i) With intent to:
7 (A) promote the carrying on of specified criminal conduct; or
8 (B) engage in conduct constituting a felony as set forth in section
9 [eighteen hundred two,] eighteen hundred three, eighteen hundred four,
10 eighteen hundred five, [eighteen hundred seven or eighteen hundred
11 eight] or eighteen hundred six of the tax law; or
12 (ii) Knowing that the transaction or transactions in whole or in part
13 are designed to:
14 (A) conceal or disguise the nature, the location, the source, the
15 ownership or the control of the proceeds of specified criminal conduct;
16 or
17 (B) avoid any transaction reporting requirement imposed by law; and
18 (iii) The total value of the property involved in such financial tran-
19 saction or transactions exceeds one hundred thousand dollars; or
20 § 5. Subdivision 1 of section 470.20 of the penal law, as added by
21 chapter 489 of the laws of 2000, is amended to read as follows:
22 1. Knowing that the property involved in one or more financial trans-
23 actions represents:
24 (a) the proceeds of the criminal sale of a controlled substance, he or
25 she conducts one or more such financial transactions which in fact
26 involve the proceeds of the criminal sale of a controlled substance:
27 (i) With intent to:
28 (A) promote the carrying on of specified criminal conduct; or
29 (B) engage in conduct constituting a felony as set forth in section
30 [eighteen hundred two,] eighteen hundred three, eighteen hundred four,
31 eighteen hundred five, [eighteen hundred seven or eighteen hundred
32 eight] or eighteen hundred six of the tax law; or
33 (ii) Knowing that the transaction or transactions in whole or in part
34 are designed to:
35 (A) conceal or disguise the nature, the location, the source, the
36 ownership or the control of the proceeds of specified criminal conduct;
37 or
38 (B) avoid any transaction reporting requirement imposed by law; and
39 (iii) The total value of the property involved in such financial tran-
40 saction or transactions exceeds five hundred thousand dollars; or
41 (b) the proceeds of a class A, B or C felony, or of a crime in any
42 other jurisdiction that is or would be a class A, B or C felony under
43 the laws of this state, he or she conducts one or more such financial
44 transactions which in fact involve the proceeds of any such felony:
45 (i) With intent to:
46 (A) promote the carrying on of specified criminal conduct; or
47 (B) engage in conduct constituting a felony as set forth in section
48 [eighteen hundred two,] eighteen hundred three, eighteen hundred four,
49 eighteen hundred five, [eighteen hundred seven or eighteen hundred
50 eight] eighteen hundred six of the tax law; or
51 (ii) Knowing that the transaction or transactions in whole or in part
52 are designed to:
53 (A) conceal or disguise the nature, the location, the source, the
54 ownership or the control of the proceeds of specified criminal conduct;
55 or
56 (B) avoid any transaction reporting requirement imposed by law; and
S. 60--A 212 A. 160--A
1 (iii) The total value of the property involved in such financial tran-
2 saction or transactions exceeds one million dollars.
3 § 6. Subdivision 1 of section 470.21 of the penal law, as added by
4 section 18 of part A of chapter 1 of the laws of 2004, is amended to
5 read as follows:
6 1. Knowing that the property involved in one or more financial trans-
7 actions represents either the proceeds of an act of terrorism as defined
8 in subdivision one of section 490.05 of this part, or a monetary instru-
9 ment given, received or intended to be used to support a violation of
10 article four hundred ninety of this part:
11 (a) he or she conducts one or more such financial transactions which
12 in fact involve either the proceeds of an act of terrorism as defined in
13 subdivision one of section 490.05 of this part, or a monetary instrument
14 given, received or intended to be used to support a violation of article
15 four hundred ninety of this part:
16 (i) With intent to:
17 (A) promote the carrying on of criminal conduct; or
18 (B) engage in conduct constituting a felony as set forth in section
19 [eighteen hundred two,] eighteen hundred three, eighteen hundred four,
20 eighteen hundred five, [eighteen hundred seven or eighteen hundred
21 eight] or eighteen hundred six of the tax law; or
22 (ii) Knowing that the transaction or transactions in whole or in part
23 are designed to:
24 (A) conceal or disguise the nature, the location, the source, the
25 ownership or the control of either the proceeds of an act of terrorism
26 as defined in subdivision one of section 490.05 of this part, or a mone-
27 tary instrument given, received or intended to be used to support a
28 violation of article four hundred ninety of this part; or
29 (B) avoid any transaction reporting requirement imposed by law; and
30 (b) the total value of the property involved in such financial trans-
31 action or transactions exceeds one thousand dollars; or
32 § 7. Subdivision 1 of section 470.22 of the penal law, as added by
33 section 18 of part A of chapter 1 of the laws of 2004, is amended to
34 read as follows:
35 1. Knowing that the property involved in one or more financial trans-
36 actions represents either the proceeds of an act of terrorism as defined
37 in subdivision one of section 490.05 of this part, or a monetary instru-
38 ment given, received or intended to be used to support a violation of
39 article four hundred ninety of this part:
40 (a) he or she conducts one or more such financial transactions which
41 in fact involve either the proceeds of an act of terrorism as defined in
42 subdivision one of section 490.05 of this part, or a monetary instrument
43 given, received or intended to be used to support a violation of article
44 four hundred ninety of this part:
45 (i) With intent to:
46 (A) promote the carrying on of specified criminal conduct; or
47 (B) engage in conduct constituting a felony as set forth in section
48 [eighteen hundred two,] eighteen hundred three, eighteen hundred four,
49 eighteen hundred five, [eighteen hundred seven or eighteen hundred
50 eight] or eighteen hundred six of the tax law; or
51 (ii) Knowing that the transaction or transactions in whole or in part
52 are designed to:
53 (A) conceal or disguise the nature, the location, the source, the
54 ownership or the control of either the proceeds of an act of terrorism
55 as defined in subdivision one of section 490.05 of this part, or a mone-
S. 60--A 213 A. 160--A
1 tary instrument given, received or intended to be used to support a
2 violation of article four hundred ninety of this part; or
3 (B) avoid any transaction reporting requirement imposed by law; and
4 (b) the total value of the property involved in such financial trans-
5 action or transactions exceeds five thousand dollars; or
6 § 8. Subdivision 1 of section 470.23 of the penal law, as added by
7 section 18 of part A of chapter 1 of the laws of 2004, is amended to
8 read as follows:
9 1. Knowing that the property involved in one or more financial trans-
10 actions represents either the proceeds of an act of terrorism as defined
11 in subdivision one of section 490.05 of this part, or a monetary instru-
12 ment given, received or intended to be used to support a violation of
13 article four hundred ninety of this part:
14 (a) he or she conducts one or more such financial transactions which
15 in fact involve either the proceeds of an act of terrorism as defined in
16 subdivision one of section 490.05 of this part, or a monetary instrument
17 given, received or intended to be used to support a violation of article
18 four hundred ninety of this part:
19 (i) With intent to:
20 (A) promote the carrying on of specified criminal conduct; or
21 (B) engage in conduct constituting a felony as set forth in section
22 [eighteen hundred two,] eighteen hundred three, eighteen hundred four,
23 eighteen hundred five, [eighteen hundred seven or eighteen hundred
24 eight] or eighteen hundred six of the tax law; or
25 (ii) Knowing that the transaction or transactions in whole or in part
26 are designed to:
27 (A) conceal or disguise the nature, the location, the source, the
28 ownership or the control of either the proceeds of an act of terrorism
29 as defined in subdivision one of section 490.05 of this part, or a mone-
30 tary instrument given, received or intended to be used to support a
31 violation of article four hundred ninety of this part; or
32 (B) avoid any transaction reporting requirement imposed by law; and
33 (b) the total value of the property involved in such financial trans-
34 action or transactions exceeds twenty-five thousand dollars; or
35 § 9. Subdivision 1 of section 470.24 of the penal law, as added by
36 section 18 of part A of chapter 1 of the laws of 2004, is amended to
37 read as follows:
38 1. Knowing that the property involved in one or more financial trans-
39 actions represents either the proceeds of an act of terrorism as defined
40 in subdivision one of section 490.05 of this part, or a monetary instru-
41 ment given, received or intended to be used to support a violation of
42 article four hundred ninety of this part:
43 (a) he or she conducts one or more financial transactions which in
44 fact involve either the proceeds of an act of terrorism as defined in
45 subdivision one of section 490.05 of this part, or a monetary instrument
46 given, received or intended to be used to support a violation of article
47 four hundred ninety of this part:
48 (i) With intent to:
49 (A) promote the carrying on of specified criminal conduct; or
50 (B) engage in conduct constituting a felony as set forth in section
51 [eighteen hundred two,] eighteen hundred three, eighteen hundred four,
52 eighteen hundred five, [eighteen hundred seven or eighteen hundred
53 eight] or eighteen hundred six of the tax law; or
54 (ii) Knowing that the transaction or transactions in whole or in part
55 are designed to:
S. 60--A 214 A. 160--A
1 (A) conceal or disguise the nature, the location, the source, the
2 ownership or the control of the proceeds of either the proceeds of an
3 act of terrorism as defined in subdivision one of section 490.05 of this
4 part, or a monetary instrument given, received or intended to be used to
5 support a violation of article four hundred ninety of this part; or
6 (B) avoid any transaction reporting requirement imposed by law; and
7 (iii) The total value of the property involved in such financial tran-
8 saction or transactions exceeds seventy-five thousand dollars.
9 § 10. Subdivision 5 of section 480-a of the tax law, as amended by
10 chapter 760 of the laws of 1992 and as renumbered by chapter 629 of the
11 laws of 1996, is amended to read as follows:
12 5. Except for subdivision [(k)] (i) of section eighteen hundred four-
13 teen of this chapter, the criminal penalties set forth in article thir-
14 ty-seven of this chapter shall not apply to a violation of this section.
15 § 11. Paragraph 7 of subdivision (m) of section 1111 of the tax law,
16 as added by section 1 of part M1 of chapter 109 of the laws of 2006, is
17 amended to read as follows:
18 (7) Notwithstanding any foregoing provision of this subdivision or
19 other law to the contrary, this subdivision, subdivision (h) of section
20 eleven hundred nine of this part and subdivision [(t)] (n) of section
21 eighteen hundred seventeen of this chapter, section three hundred nine-
22 ty-two-i of the general business law and other provisions of law which
23 refer or relate to this subdivision shall apply only to (A) motor fuel
24 or diesel motor fuel sold for use directly and exclusively in the engine
25 of a motor vehicle and (B) motor fuel or diesel motor fuel, other than
26 water-white kerosene sold exclusively for heating purposes in containers
27 of no more than twenty gallons, sold by a retail gas station. For
28 purposes of this subdivision and such other provisions of law, "retail
29 gas station" shall mean a filling station where such fuel is stored
30 primarily for sale by delivery directly into the ordinary fuel tank
31 connected with the engine of a motor vehicle to be consumed in the oper-
32 ation of such motor vehicle or where such fuel is stored primarily for
33 sale by delivery directly into the ordinary fuel tank connected with the
34 engine of a vessel to be consumed in the operation of such vessel. The
35 commissioner is hereby authorized to require the use of certificates or
36 other documents, and procedures related thereto, to effect the purposes
37 of this subdivision; and any such certificate or other document so
38 required by the commissioner for a purchaser to tender to a vendor to
39 purchase such fuel subject to tax on the reduced base established by or
40 pursuant to this subdivision is hereby deemed to be an exemption certif-
41 icate as such term is used in subdivision (c) of section eleven hundred
42 thirty-two of this article and as if the provisions of such subdivision
43 (c) referred to such a certificate or document required pursuant to this
44 subdivision.
45 § 12. Paragraph 5 of subdivision (f) of section 1137 of the tax law,
46 as added by chapter 170 of the laws of 1994, is amended to read as
47 follows:
48 (5) (i) Where a person takes a credit pursuant to this subdivision in
49 an amount greater than allowed or under circumstances where the credit
50 is not authorized, or (ii) where a person takes a credit pursuant to
51 this subdivision at the time of filing a return for a quarterly or long-
52 er period and such person later becomes subject to a penalty imposed
53 under subparagraph (vi) of paragraph one of subdivision (a) or under
54 paragraph two of subdivision (a) of section eleven hundred forty-five of
55 this [article] part or is later found guilty of a crime or offense under
56 section eighteen hundred three, eighteen hundred four, eighteen hundred
S. 60--A 215 A. 160--A
1 five, eighteen hundred six, or eighteen hundred seventeen of this chap-
2 ter, relating to the period for which the return was filed, the amount
3 of such credit taken in such greater amount, under such circumstances or
4 for such period shall be disallowed and the person shall be required to
5 pay, as tax, an amount equal to the credit so taken, at such time and in
6 such manner as prescribed by the commissioner; provided, however, that
7 such amount shall be paid and disposed of in the same manner as other
8 revenues from this article, and may be determined, assessed, collected
9 and enforced in the same manner as the tax imposed by this article.
10 § 13. Subdivision (c) of section 1800 of the tax law, as added by
11 chapter 65 of the laws of 1985, is amended to read as follows:
12 (c) As used in this article, the term "felony" and the term "misdemea-
13 nor" shall have the same meaning as they have in the penal law, and the
14 disposition of such offenses and the sentences imposed therefor shall be
15 as provided in such law except; (1) notwithstanding the provisions of
16 paragraph a of subdivision one of section 80.00 and paragraph (a) of
17 subdivision one of section 80.10 of the penal law relating to the fine
18 for a felony, the court may impose a fine not to exceed the greater of
19 double the amount of the underpaid tax liability resulting from the
20 commission of the crime or fifty thousand dollars, [except that] or, in
21 the case of a corporation the fine may not exceed the greater of double
22 the amount of the underpaid tax liability resulting from the commission
23 of the crime or two hundred fifty thousand dollars and (2) notwithstand-
24 ing the provisions of subdivision one of section 80.05 and paragraph (b)
25 of subdivision one of section 80.10 of the penal law relating to the
26 fine for a class A misdemeanor, the court may impose a fine not to
27 exceed ten thousand dollars, except that in the case of a corporation
28 the fine may not exceed twenty thousand dollars.
29 § 14. The part heading of part 2 of article 37 of the tax law, as
30 added by chapter 65 of the laws of 1985, is amended to read as follows:
31 PART II-[INCOME, EARNINGS AND CORPORATE TAXES] TAX FRAUD ACTS AND
32 PENALTIES
33 § 15. Section 1801 of the tax law is REPEALED and a new section 1801
34 is added to read as follows:
35 § 1801. Tax fraud acts. (a) As used in this article, "tax fraud act"
36 means willfully engaging in an act or acts or willfully causing another
37 to engage in an act or acts pursuant to which a person:
38 (1) fails to make, render, sign, certify, or file any return or report
39 required under this chapter or any regulation promulgated under this
40 chapter within the time required by or under the provisions of this
41 chapter or such regulation;
42 (2) knowing that a return, report, statement or other document under
43 this chapter contains any false or fraudulent information, or omits any
44 material information, files or submits that return, report, statement or
45 document with the state or any political subdivision of the state, or
46 with any public office or public officer of the state or any political
47 subdivision of the state;
48 (3) knowingly supplies or submits false or fraudulent information in
49 connection with any return, audit, investigation, or proceeding or fails
50 to supply information within the time required by or under the
51 provisions of this chapter or any regulation promulgated under this
52 chapter;
53 (4) engages in any scheme to defraud the state or a political subdivi-
54 sion of the state or a government instrumentality within the state by
55 false or fraudulent pretenses, representations or promises in connection
S. 60--A 216 A. 160--A
1 with any tax imposed under this chapter or any matter under this chap-
2 ter;
3 (5) fails to remit any tax collected in the name of the state or on
4 behalf of the state or any political subdivision of the state when such
5 collection is required under this chapter;
6 (6) fails to collect any tax required to be collected under articles
7 twelve-A, eighteen, twenty, twenty-two or twenty-eight of this chapter,
8 or pursuant to the authority of article twenty-nine of this chapter;
9 (7) with intent to evade any tax fails to pay that tax; or
10 (8) issues an exemption certificate, interdistributor sales certif-
11 icate, resale certificate, or any other document capable of evidencing a
12 claim that taxes do not apply to a transaction, which he or she does not
13 believe to be true and correct as to any material matter, which omits
14 any material information, or which is false, fraudulent, or counterfeit.
15 (b) For purposes of this subdivision, "this chapter" includes any
16 "related statute" or any "related income or earnings tax statute", as
17 defined in section eighteen hundred of this article.
18 § 16. Section 1802 of the tax law is REPEALED and a new section 1802
19 is added to read as follows:
20 § 1802. Criminal tax fraud in the fifth degree. A person commits crim-
21 inal tax fraud in the fifth degree when he or she commits a tax fraud
22 act. Criminal tax fraud in the fifth degree is a class A misdemeanor.
23 § 17. Section 1803 of the tax law is REPEALED and a new section 1803
24 is added to read as follows:
25 § 1803. Criminal tax fraud in the fourth degree. A person commits
26 criminal tax fraud in the fourth degree when he or she commits a tax
27 fraud act or acts and, with the intent to evade any tax due under this
28 chapter, or to defraud the state or any subdivision thereof, the person
29 pays the state and/or a political subdivision of the state (whether by
30 means of underpayment or receipt of refund or both) in excess of one
31 thousand dollars less than the tax liability that is due. Criminal tax
32 fraud in the fourth degree is a class E felony.
33 § 18. Section 1804 of the tax law is REPEALED and a new section 1804
34 is added to read as follows:
35 § 1804. Criminal tax fraud in the third degree. A person commits crim-
36 inal tax fraud in the third degree when he or she commits a tax fraud
37 act or acts and, with the intent to evade any tax due under this chap-
38 ter, or to defraud the state or any political subdivision of the state,
39 the person pays the state and/or a political subdivision of the state
40 (whether by means of underpayment or receipt of refund or both) in
41 excess of three thousand dollars less than the tax liability that is
42 due. Criminal tax fraud in the third degree is a class D felony.
43 § 19. Section 1805 of the tax law is REPEALED and a new section 1805
44 is added to read as follows:
45 § 1805. Criminal tax fraud in the second degree. A person commits
46 criminal tax fraud in the second degree when he or she commits a tax
47 fraud act or acts and, with the intent to evade any tax due under this
48 chapter, or to defraud the state or any subdivision of the state, the
49 person pays the state and/or a political subdivision of the state
50 (whether by means of underpayment or receipt of refund or both) in
51 excess of fifty thousand dollars less than the tax liability that is
52 due. Criminal tax fraud in the second degree is a class C felony.
53 § 20. Section 1806 of the tax law is REPEALED and a new section 1806
54 is added to read as follows:
55 § 1806. Criminal tax fraud in the first degree. A person commits crim-
56 inal tax fraud in the first degree when he or she commits a tax fraud
S. 60--A 217 A. 160--A
1 act or acts and, with the intent to evade any tax due under this chap-
2 ter, or to defraud the state or any subdivision of the state, the person
3 pays the state and/or a political subdivision of the state (whether by
4 means of underpayment or receipt of refund or both) in excess of one
5 million dollars less than the tax liability that is due. Criminal tax
6 fraud in the first degree is a class B felony.
7 § 21. Section 1807 of the tax law is REPEALED and a new section 1807
8 is added to read as follows:
9 § 1807. Aggregation. For purposes of this article, the payments due
10 and not paid under article one of this chapter pursuant to a common
11 scheme or plan, or due and not paid continuously over consecutive peri-
12 ods may be charged as a continuing crime in a single count, and the
13 amount of underpaid tax liability may be aggregated over all tax periods
14 encompassed by the scheme to defraud or over the consecutive years of
15 underpayment.
16 § 22. Section 1808 of the tax law is REPEALED.
17 § 23. Sections 1809 and 1810 of the tax law are REPEALED.
18 § 24. Section 1811 of the tax law, as amended by section 116, subdivi-
19 sions (a) and (b) as separately amended by section 145 of chapter 190 of
20 the laws of 1990, is amended to read as follows:
21 § 1811. Estate, gift and transfer taxes.[--(a) Failure to file a
22 return or report, or pay tax.--Any person required under article twen-
23 ty-six, twenty-six-A or twenty-six-B of this chapter to pay tax, or make
24 a return or report, who, with intent to evade tax or any requirement of
25 such articles, fails to pay such tax or make such return or report, at
26 the time or times so required, shall be guilty of a misdemeanor.
27 (b) Fraudulent returns, reports, statements or other documents.--(1)
28 Any person who, with intent to evade the tax or any requirement of arti-
29 cle twenty-six, twenty-six-A or twenty-six-B of this chapter or any
30 lawful requirement of the commissioner of taxation and finance there-
31 under, makes and subscribes any return, report, statement or other docu-
32 ment which is required to be filed with or furnished to the commissioner
33 or to any person, pursuant to or under the provisions of such articles,
34 which he does not believe to be true and correct as to every material
35 matter shall be guilty of a misdemeanor.
36 (2) Any person who, with intent to evade the tax or any requirement of
37 article twenty-six, twenty-six-A or twenty-six-B of this chapter or any
38 lawful requirement of the commissioner of taxation and finance there-
39 under, who delivers or discloses to the commissioner or to any person,
40 pursuant to or under the provisions of such articles, any list, return,
41 report, account, statement or other document known by him to be fraudu-
42 lent or to be false as to any material matter shall be guilty of a
43 misdemeanor.
44 (3) For purposes of this section, the omission by any person of any
45 material matter with intent to deceive shall constitute the delivery or
46 disclosure of a document known by him to be fraudulent or to be false as
47 to any material matter.
48 (c)] Wrongful entry into safe deposit box.--Any person who enters a
49 safe deposit box of a decedent, or a box standing in the joint names of
50 such a decedent and one or more persons, with knowledge of the death of
51 the lessee of such box, which entry results in an evasion of the tax
52 imposed by article twenty-six of this chapter shall be guilty of a
53 misdemeanor.
54 § 25. Section 1812 of the tax law, as added by chapter 65 of the laws
55 of 1985, paragraphs 4 and 5 of subdivision (c) as added and subdivision
56 (d) as amended by chapter 261 of the laws of 1988 and subdivisions (g)
S. 60--A 218 A. 160--A
1 and (h) as added by chapter 276 of the laws of 1986, is amended to read
2 as follows:
3 § 1812. Motor fuel taxes.--(a) Attempt to evade or defeat tax.--Any
4 person who willfully attempts in any manner to evade or defeat any tax
5 imposed by article twelve-A of this chapter or the payment thereof
6 shall, in addition to other penalties provided by law, be guilty of a
7 class E felony.
8 (b) [Willful failure to file a return or report, or pay tax.--Any
9 person required under article twelve-A of this chapter to pay tax, or
10 make a return or report, who willfully fails to pay such tax or make
11 such return or report, at the time or times so required, shall be guilty
12 of a misdemeanor.
13 (c) Fraudulent returns, reports, statements or other documents.--(1)
14 Any person who willfully makes and subscribes any return, report, state-
15 ment or other document which is required to be filed with or furnished
16 to the tax commission or to any person, pursuant to the provisions of
17 article twelve-A of this chapter, which he does not believe to be true
18 and correct as to every material matter shall be guilty of a class E
19 felony.
20 (2) Any person who willfully delivers or discloses to the tax commis-
21 sion or to any person, pursuant to the provisions of article twelve-A of
22 this chapter, any list, return, report, account, statement or other
23 document known by him to be fraudulent or to be false as to any material
24 matter shall be guilty of a misdemeanor.
25 (3) For purposes of this section, the omission by any person of any
26 material matter with intent to deceive shall constitute the delivery or
27 disclosure of a document known by him to be fraudulent or to be false as
28 to any material matter.
29 (4) Any person who willfully issues an exempt transaction certificate
30 (or similar document which has been prescribed by the commissioner of
31 taxation and finance) or interdistributor sale certificate in order to
32 claim an exemption from the taxes imposed on Diesel motor fuel by arti-
33 cle twelve-A of this chapter which he does not believe to be true and
34 correct as to any material matter shall, in addition to any other penal-
35 ty provided by law, be guilty of a misdemeanor.
36 (5)] Any person who willfully accepts an exempt transaction certif-
37 icate (or similar document which has been prescribed by the commissioner
38 [of taxation and finance]) or interdistributor sale certificate with
39 respect to claiming exemption from the taxes imposed on Diesel motor
40 fuel by article twelve-A of this chapter which he does not believe to be
41 true and correct as to any material matter shall, in addition to any
42 other penalty provided by law, be guilty of a misdemeanor.
43 [(d)] (c) Any owner of a filling station who shall willfully and know-
44 ingly have in his custody, possession or under his control any motor
45 fuel or Diesel motor fuel on which (1) the taxes imposed by or pursuant
46 to the authority of such article have not been assumed or paid by a
47 distributor registered as such under such article or (2) the taxes
48 imposed by or pursuant to the authority of such article have not been
49 included in the cost to him of such fuel where such taxes were required
50 to have been passed through to him and included in the cost to him of
51 such fuel, shall in either case, be guilty of a class E felony. For
52 purposes of this subdivision, such owner shall willfully and knowingly
53 have in his custody, possession or under his control any motor fuel or
54 Diesel motor fuel on which such taxes have not been assumed or paid by a
55 distributor registered as such where such owner has knowledge of the
56 requirement that such taxes be paid and where, to his knowledge, such
S. 60--A 219 A. 160--A
1 taxes have not been assumed or paid by a registered distributor on such
2 motor fuel or Diesel motor fuel. Such owner shall willfully and knowing-
3 ly have in his custody, possession or under his control any motor fuel
4 or Diesel motor fuel on which such taxes are required to have been
5 passed through to him and have not been included in his cost where such
6 owner has knowledge of the requirement that such taxes be passed through
7 and where to his knowledge such taxes have not been so included.
8 [(e)] (d) Any willful act or omission, other than those described in
9 subdivision (a), (b), or (c) [or (d)] of this section, by any person
10 which constitutes a violation of any provision of article twelve-A of
11 this chapter shall constitute a misdemeanor.
12 [(f)] (e) The provisions of this section shall apply for purposes of
13 the tax imposed pursuant to the authority of section two hundred eight-
14 y-four-b of this chapter.
15 [(g) Any person who, being duly subpoenaed, pursuant to section one
16 hundred seventy-four of this chapter or the provisions of the civil
17 practice law and rules, in connection with a matter arising under arti-
18 cle twelve-A of this chapter, to attend as a witness or to produce
19 books, accounts, records, memoranda, documents or other papers who (i)
20 fails or refuses to attend without lawful excuse, (ii) refuses to be
21 sworn, (iii) refuses to answer any material and proper question, or (iv)
22 refuses, after reasonable notice, to produce books, accounts, records,
23 memoranda, documents or other papers in his possession or under his
24 control which constitute material and proper evidence shall be guilty of
25 a misdemeanor.
26 (h)] (f) Any person who willfully makes a manifest required by section
27 two hundred eighty-six-b of this chapter which he does not believe to be
28 true and correct as to every material matter or who willfully produces
29 any manifest for inspection as required under section two hundred eight-
30 y-six-b of this chapter which is known to be fraudulent or to be false
31 as to any material matter shall be guilty of a class E felony.
32 § 26. Section 1812-f of the tax law, as added by chapter 190 of the
33 laws of 1990, is amended to read as follows:
34 § 1812-f. Article thirteen-A tax. (a) [Attempt to evade or defeat tax.
35 Any person who willfully attempts in any manner to evade or defeat any
36 tax imposed by article thirteen-A of this chapter or the payment thereof
37 shall be guilty of a misdemeanor; provided, however, that if the tax
38 liability evaded or defeated as a result of such conduct is equal to or
39 greater than one thousand dollars, such person shall be guilty of class
40 E felony.
41 (b) Willful failure to file a return or report, or pay tax. Any person
42 required under article thirteen-A of this chapter to pay tax, or make a
43 return or report, who willfully fails to pay such tax or make such
44 return or report, at the time or times so required, shall be guilty of a
45 misdemeanor.
46 (c) Fraudulent returns, reports, statements or other documents. (1)
47 Any person who willfully makes and subscribes any return, report, state-
48 ment or other document which is required to be filed with or furnished
49 to the commissioner of taxation and finance or to any person, pursuant
50 to the provisions of article thirteen-A of this chapter, which he does
51 not believe to be true and correct as to every material matter shall be
52 guilty of a misdemeanor. Provided, however, where such person substan-
53 tially understates on such return, report, statement, or other document
54 his tax liability under such article, such person shall be guilty of a
55 class E felony. For purposes of this subdivision, the term "substantial-
56 ly understates" refers to the excess amount of the tax required to be
S. 60--A 220 A. 160--A
1 shown on the return or report for the taxable period over the amount of
2 the tax imposed which is shown on the return, report, statement, or
3 other document, provided that the excess is one thousand dollars or
4 more, and provided that the taxpayer, acting without reasonable ground
5 for believing that his conduct is lawful, intended to evade at least the
6 amount of such excess.
7 (2) Any person who willfully delivers or discloses to the commissioner
8 of taxation and finance or to any person, pursuant to the provisions of
9 article thirteen-A of this chapter, any list, return, report, account,
10 statement or other document known by him to be fraudulent or to be false
11 as to any material matter shall be guilty of a misdemeanor.
12 (3) For purposes of this section, the omission by any person of any
13 material matter with intent to deceive shall constitute the delivery or
14 disclosure of a document known by him to be fraudulent or to be false as
15 to any material matter.
16 (4) Any person who willfully issues an exempt transaction certificate
17 (or similar document which has been prescribed by the commissioner of
18 taxation and finance) or interdistributor sale certificate in order to
19 claim an exemption from taxes imposed with respect to diesel motor fuel
20 or residual petroleum product by article thirteen-A of this chapter
21 which he does not believe to be true and correct as to any material
22 matter shall be guilty of a misdemeanor.
23 (5)] Any person who willfully accepts an exempt transaction certif-
24 icate (or similar document which has been prescribed by the commissioner
25 of taxation and finance) or interdistributor sale certificate with
26 respect to claiming exemption from the taxes imposed with respect to
27 diesel motor fuel or residual petroleum product by article thirteen-A of
28 this chapter which he does not believe to be true and correct as to any
29 material matter shall be guilty of a misdemeanor.
30 [(d)] (b) Any willful act or omission, other than those described in
31 section eighteen hundred one of this article or subdivision (a)[, (b)]
32 or (c) of this section, by any person which constitutes a violation of
33 any provision of article thirteen-A of this chapter shall constitute a
34 misdemeanor.
35 [(e) Any person who duly is subpoenaed, pursuant to section one
36 hundred seventy-four of this chapter or the provisions of the civil
37 practice law and rules, in connection with a matter arising under arti-
38 cle thirteen-A of this chapter, to attend as a witness or to produce
39 books, accounts, records, memoranda, documents or other papers and who
40 (i) fails or refuses to attend without lawful excuse, (ii) refuses to be
41 sworn, (iii) refuses to answer any material and proper question, or (iv)
42 refuses, after reasonable notice, to produce books, accounts, records,
43 memoranda, documents or other papers in his possession or under his
44 control which constitute material and proper evidence shall be guilty of
45 a misdemeanor.
46 (f)] (c) Any person who willfully makes a movement tracking document
47 required pursuant to subdivision (b) of section three hundred fifteen of
48 this chapter, which he does not believe to be true and correct as to
49 every material matter or who willfully produces any such document for
50 inspection as required under subdivision (b) of section three hundred
51 fifteen of this chapter which he knows to be fraudulent or to be false
52 as to any material matter shall be guilty of a misdemeanor; provided,
53 however, that if the tax liability under article thirteen-A of this
54 chapter with respect to the product being transported, is equal to or
55 greater than one thousand dollars, such person shall be guilty of a
56 class E felony.
S. 60--A 221 A. 160--A
1 § 27. Section 1813 of the tax law, as added by chapter 65 of the laws
2 of 1985, subdivisions (h), (i) and (j) as added by chapter 508 of the
3 laws of 1993, is amended to read as follows:
4 § 1813. Alcoholic beverage tax.--(a) [Attempt to evade or defeat tax.-
5 -Any person who willfully attempts in any manner to evade or defeat any
6 tax imposed by article eighteen of this chapter or the payment thereof
7 shall, in addition to other penalties provided by law, be guilty of a
8 misdemeanor.
9 (b) Willful failure to file a return or report, or pay tax.--Any
10 person required under article eighteen of this chapter to pay or make a
11 return or report, who willfully fails to pay such tax or make such
12 return or report at the time or times so required, shall be guilty of a
13 misdemeanor.
14 (c) Fraudulent returns, reports, statements or other documents.--(1)
15 Any person who willfully makes and subscribes any return, report, state-
16 ment or other document which is required to be filed with or furnished
17 to the tax commission or to any person, pursuant to article eighteen of
18 this chapter, which he does not believe to be true and correct as to
19 every material matter shall be guilty of a class E felony.
20 (2) Any person who willfully delivers or discloses to the tax commis-
21 sion or to any person, pursuant to article eighteen of this chapter, any
22 list, return, report, account, statement or other document known by him
23 to be fraudulent or to be false as to any material matter shall be guil-
24 ty of a misdemeanor.
25 (3) For purposes of this section, the omission by any person of any
26 material matter with intent to deceive shall constitute the delivery or
27 disclosure of a document known by him to be fraudulent or to be false as
28 to any material matter.
29 (d)] Unlawful use of stamps.--Any person who shall counterfeit stamps
30 prescribed by section four hundred thirty-eight of this chapter or who
31 shall willfully remove or alter or knowingly permit to be removed or
32 altered, the cancellation or defacing marks required to be placed upon
33 any stamp under provisions of article eighteen of this chapter with
34 intent to use such stamp, or who shall willfully open any container of
35 alcoholic beverages without first destroying the stamp affixed thereto
36 or who shall knowingly or willfully buy, prepare for use, use, have in
37 his possession or suffer to be used any washed, restored or counterfeit
38 stamp shall be guilty of a misdemeanor.
39 [(e)] (b) Unlawful use of alcoholic beverages.--Any person who shall
40 willfully sell or use any alcoholic beverages upon which tax has not
41 been paid by the affixation of stamps as prescribed pursuant to section
42 four hundred thirty-eight of this chapter shall be guilty of a misdemea-
43 nor.
44 [(f)] (c) Any willful act or omission, other than those described in
45 section eighteen hundred one of this article or subdivision (a)[,] or
46 (b)[, (c), (d) or (e)] of this section, by any person which constitutes
47 a violation of any provision of article eighteen of this chapter shall
48 constitute a misdemeanor.
49 [(g)] (d) The provisions of this section shall apply for purposes of
50 any tax imposed pursuant to the authority of section four hundred
51 forty-five of this chapter.
52 [(h)] (e) Person not registered as a distributor. (1) Any person
53 required to be registered as a distributor pursuant to the provisions of
54 article eighteen of this chapter who, while not so registered, knowingly
55 imports or causes to be imported into the state, for sale or use there-
56 in, any liquors or, who, except in accordance with clause (i) or (ii) of
S. 60--A 222 A. 160--A
1 paragraph (b) of subdivision four of section four hundred twenty of this
2 chapter, knowingly produces, distills, manufactures, compounds, mixes or
3 ferments in this state any such liquors for sale, or who, as a purchaser
4 of a warehouse receipt, knowingly causes liquors covered by such receipt
5 to be removed from a warehouse in this state, shall be guilty of a class
6 A misdemeanor. Provided, however, that any person who has twice been
7 convicted under this section within the preceding five years, shall be
8 guilty of a class E felony for any subsequent violation of this para-
9 graph.
10 (2) Any person who, while not registered as a distributor pursuant to
11 the provisions of article eighteen of this chapter, knowingly and inten-
12 tionally imports or causes to be imported into this state, for sale or
13 use therein, more than three hundred sixty liters of liquors into this
14 state in a one-year period or, except in accordance with clause (i) or
15 (ii) of paragraph (b) of subdivision four of section four hundred twenty
16 of this chapter, knowingly and intentionally produces, distills, manu-
17 factures, compounds, mixes or ferments for sale more than three hundred
18 sixty liters of such liquors within this state in a one-year period, or,
19 as a purchaser of a warehouse receipt, knowingly and intentionally caus-
20 es more than three hundred sixty liters of liquors in a one-year period
21 to be removed from a warehouse in this state, shall be guilty of a class
22 E felony.
23 (3) For purposes of this subdivision, it shall be presumed that the
24 importation or the causing to be imported into this state or the
25 production, distillation, manufacture, compounding, mixing or fermenting
26 in this state of more than ninety liters of such liquors by any person
27 in a one-year period is for purposes of sale. Such presumption may be
28 rebutted by the introduction of substantial evidence to the contrary.
29 [(i)] (f) Person not registered as a distributor for city purposes.
30 (1) Any person required to be registered as a distributor for city
31 purposes pursuant to the provisions of section four hundred forty-five
32 of article eighteen of this chapter who, while not so registered, know-
33 ingly imports or causes to be imported into such city, for sale or use
34 therein, any liquors or, who, except in accordance with clause (i) or
35 (ii) of paragraph (b) of subdivision four of section four hundred twenty
36 of this chapter as incorporated into such section four hundred forty-
37 five, knowingly produces, distills, manufactures, compounds, mixes or
38 ferments in such city any such liquors for sale, or who, as a purchaser
39 of a warehouse receipt, causes liquors covered by such receipt to be
40 removed from a warehouse in this state, shall be guilty of a class A
41 misdemeanor. Provided, however, that any person who has twice been
42 convicted under this section within the preceding five years shall be
43 guilty of a class E felony for any subsequent violation of this para-
44 graph.
45 (2) Any person who, while not registered as a distributor for city
46 purposes pursuant to the provisions of section four hundred forty-five
47 of article eighteen of this chapter, knowingly and intentionally imports
48 or causes to be imported into such city, for sale or use therein, more
49 than three hundred sixty liters of liquors into such city in a one-year
50 period or, except in accordance with clause (i) or (ii) of paragraph (b)
51 of subdivision four of section four hundred twenty of this chapter as
52 incorporated into such section four hundred forty-five, knowingly and
53 intentionally produces, distills, manufactures, compounds, mixes or
54 ferments for sale more than three hundred sixty liters of such liquors
55 within such city in a one-year period, or, as a purchaser of a warehouse
56 receipt, knowingly and intentionally causes more than three hundred
S. 60--A 223 A. 160--A
1 sixty liters of liquors in a one-year period to be removed from a ware-
2 house in this [store] state, shall be guilty of a class E felony.
3 (3) For purposes of this subdivision, it shall be presumed that the
4 importation or the causing to be imported into such city or the
5 production, distillation, manufacture, compounding, mixing or fermenting
6 in such city of more than ninety liters of liquors by any person in a
7 one-year period is for purposes of sale. Such presumption may be
8 rebutted by the introduction of substantial evidence to the contrary.
9 [(j)] (g) Any person, other than the distributor registered under
10 article eighteen of this chapter which imported or caused the liquors to
11 be imported into this state, who shall willfully and knowingly have in
12 his custody, possession or under his control liquors with respect to
13 which the taxes imposed by or pursuant to the authority of article eigh-
14 teen of this chapter have not been assumed or paid by a distributor
15 registered as such under such article, shall be guilty of a class B
16 misdemeanor; if such person shall willfully and knowingly have more than
17 ninety liters of such liquors in his custody or possession or under his
18 control, such person shall be guilty of a class A misdemeanor; or if
19 such person shall knowingly and intentionally have more than three
20 hundred sixty liters of such liquors in his custody or possession or
21 under his control, such person shall be guilty of a class E felony. For
22 purposes of this subdivision, such person shall willfully and knowingly
23 have in his custody, possession or under his control any liquors with
24 respect to which such taxes have not been assumed or paid by a distribu-
25 tor registered as such where such person has knowledge of the require-
26 ment of such taxes and where, to his knowledge, such taxes have not been
27 assumed or paid by a registered distributor with respect to such
28 liquors.
29 § 28. Section 1814 of the tax law, as added by chapter 65 of the laws
30 of 1985, the section heading and subdivisions (c), (g) and (h) as
31 amended and subdivision (j) as added by chapter 61 of the laws of 1989,
32 paragraph 2 of subdivision (a) and paragraph 1 of subdivision (e) as
33 amended by chapter 508 of the laws of 2004, subdivisions (d) and (e) as
34 amended by chapter 262 of the laws of 2000 and subdivision (k) as added
35 by chapter 190 of the laws of 1990, is amended to read as follows:
36 § 1814. Cigarette and tobacco products tax.--(a) [Attempt to evade or
37 defeat tax.--(1) Any person who willfully attempts in any manner to
38 evade or defeat any tax imposed by article twenty of this chapter or the
39 payment thereof shall, in addition to other penalties provided by law,
40 be guilty of a misdemeanor.
41 (2)] Any person who willfully attempts in any manner to evade or
42 defeat the taxes imposed by article twenty of this chapter or payment
43 thereof on (i) ten thousand cigarettes or more (ii) twenty-two thousand
44 cigars or more, or (iii) four hundred forty pounds of tobacco or more or
45 has previously been convicted two or more times of a violation of para-
46 graph one of this subdivision shall be guilty of a class E felony.
47 (b) [Willful failure to file a return or report, or pay tax.--Any
48 person required under article twenty of this chapter to pay or make a
49 return or report, who willfully fails to pay such tax or make such
50 return or report, at the time or times so required, shall be guilty of a
51 misdemeanor.
52 (c) Fraudulent returns, reports, statements or other documents.--(1)
53 Any person who willfully makes and subscribes any return, report, state-
54 ment or other document which is required to be filed with or furnished
55 to the commissioner of taxation and finance or to any person, pursuant
56 to article twenty of this chapter, which he does not believe to be true
S. 60--A 224 A. 160--A
1 and correct as to every material matter shall be guilty of a misdemea-
2 nor.
3 (2) Any person who willfully delivers or discloses to the commissioner
4 of taxation and finance or to any person, pursuant to article twenty of
5 this chapter, any list, return, report, account, statement or other
6 document known by him to be fraudulent or to be false as to any material
7 matter shall be guilty of a misdemeanor.
8 (3) For purposes of this section, the omission by any person of any
9 material matter with intent to deceive shall constitute the delivery or
10 disclosure of a document known by him to be fraudulent or to be false as
11 to any material matter.
12 (d)] Any person, other than an agent licensed by the commissioner, who
13 possesses or transports for the purpose of sale any unstamped or unlaw-
14 fully stamped packages of cigarettes subject to tax imposed by section
15 four hundred seventy-one of this chapter, or who sells or offers for
16 sale unstamped or unlawfully stamped packages of cigarettes in violation
17 of the provisions of article twenty of this chapter shall be guilty of a
18 misdemeanor. Any person who violates the provisions of this subdivision
19 after having previously been convicted of a violation of this subdivi-
20 sion within the preceding five years shall be guilty of a class E felo-
21 ny.
22 [(e)] (c) (1) Any person, other than an agent licensed by the commis-
23 sioner, who willfully possesses or transports for the purpose of sale
24 ten thousand or more cigarettes subject to the tax imposed by section
25 four hundred seventy-one of this chapter in any unstamped or unlawfully
26 stamped packages or who willfully sells or offers for sale ten thousand
27 or more cigarettes in any unstamped or unlawfully stamped packages in
28 violation of article twenty of this chapter shall be guilty of a class E
29 felony.
30 (2) Any person, other than an agent licensed by the commissioner, who
31 willfully possesses or transports for the purpose of sale thirty thou-
32 sand or more cigarettes subject to the tax imposed by section four
33 hundred seventy-one of this chapter in any unstamped or unlawfully
34 stamped packages or who willfully sells or offers for sale thirty thou-
35 sand or more cigarettes in any unstamped or unlawfully stamped packages
36 in violation of article twenty of this chapter shall be guilty of a
37 class D felony.
38 [(f)] (d) For the purposes of this section, the possession or trans-
39 portation within this state by any person, other than an agent, at any
40 one time of five thousand or more cigarettes in unstamped or unlawfully
41 stamped packages shall be presumptive evidence that such cigarettes are
42 possessed or transported for the purpose of sale and are subject to the
43 tax imposed by section four hundred seventy-one of this chapter. With
44 respect to such possession or transportation any provisions of article
45 twenty of this chapter providing for a time period during which a use
46 tax imposed by such article may be paid on unstamped cigarettes or
47 unlawfully or improperly stamped cigarettes or during which such ciga-
48 rettes may be returned to an agent shall not apply. The possession with-
49 in this state of more than four hundred cigarettes in unstamped or
50 unlawfully stamped packages by any person other than an agent at any one
51 time shall be presumptive evidence that such cigarettes are subject to
52 tax as provided by article twenty of this chapter.
53 [(g)] (e) Nothing in this section shall apply to common or contract
54 carriers or warehousemen while engaged in lawfully transporting or stor-
55 ing unstamped packages of cigarettes as merchandise, or lawfully trans-
56 porting or storing tobacco products, nor to any employee of such carrier
S. 60--A 225 A. 160--A
1 or warehouseman acting within the scope of his employment, nor to public
2 officers or employees in the performance of their official duties
3 requiring possession or control of unstamped or unlawfully stamped pack-
4 ages of cigarettes or possession or control of tobacco products, nor to
5 temporary incidental possession by employees or agents of persons
6 lawfully entitled to possession, nor to persons whose possession is for
7 the purpose of aiding police officers in performing their duties.
8 [(h)] (f) Any willful act or omission, other than those described in
9 section eighteen hundred one of this article or subdivision (a), (b),
10 (c), (d), (e), [(f),] (g), (h) or (i) [or (j)] of this section, by any
11 person which constitutes a violation of any provision of article twenty
12 of this chapter shall constitute a misdemeanor.
13 [(i)] (g) Any person who falsely or fraudulently makes, alters or
14 counterfeits any stamp prescribed by the tax commission under the
15 provisions of article twenty of this chapter, or causes or procures to
16 be falsely or fraudulently made, altered or counterfeited any such
17 stamp, or knowingly and willfully utters, purchases, passes or tenders
18 as true any such false, altered or counterfeited stamp, or knowingly and
19 willfully possesses any cigarettes in packages bearing any such false,
20 altered or counterfeited stamp, and any person who knowingly and will-
21 fully makes, causes to be made, purchases or receives any device for
22 forging or counterfeiting any stamp, prescribed by the tax commission
23 under the provisions of article twenty of this chapter, or who knowingly
24 and willfully possesses any such device, shall be guilty of a class E
25 felony. For the purposes of this subdivision, the words "stamp
26 prescribed by the tax commission" shall include a stamp, impression or
27 imprint made by a metering machine, the design of which has been
28 approved by such commission.
29 [(j)] (h) (1) Any dealer, other than a distributor appointed by the
30 commissioner of taxation and finance under article twenty of this chap-
31 ter, who shall knowingly transport or have in his custody, possession or
32 under his control more than ten pounds of tobacco or more than five
33 hundred cigars upon which the taxes imposed by article twenty of this
34 chapter have not been assumed or paid by a distributor appointed by the
35 commissioner of taxation and finance under article twenty of this chap-
36 ter, or other person treated as a distributor pursuant to section four
37 hundred seventy-one-d of this chapter, shall be guilty of a misdemeanor
38 punishable by a fine of not more than five thousand dollars or by a term
39 of imprisonment not to exceed thirty days.
40 (2) Any person, other than a dealer or a distributor appointed by the
41 commissioner [of taxation and finance] under article twenty of this
42 chapter, who shall knowingly transport or have in his custody,
43 possession or under his control more than fifteen pounds of tobacco or
44 more than seven hundred fifty cigars upon which the taxes imposed by
45 article twenty of this chapter have not been assumed or paid by a
46 distributor appointed by the commissioner [of taxation and finance]
47 under article twenty of this chapter, or other person treated as a
48 distributor pursuant to section four hundred seventy-one-d of this chap-
49 ter shall be guilty of a misdemeanor punishable by a fine of not more
50 than five thousand dollars or by a term of imprisonment not to exceed
51 thirty days.
52 (3) Any person, other than a distributor appointed by the commissioner
53 [of taxation and finance] under article twenty of this chapter, who
54 shall knowingly transport or have in his custody, possession or under
55 his control twenty-five hundred or more cigars or fifty or more pounds
56 of tobacco upon which the taxes imposed by article twenty of this chap-
S. 60--A 226 A. 160--A
1 ter have not been assumed or paid by a distributor appointed by the
2 commissioner [of taxation and finance] under article twenty of this
3 chapter, or other person treated as a distributor pursuant to section
4 four hundred seventy-one-d of this chapter shall be guilty of a misde-
5 meanor. Provided further, that any person who has twice been convicted
6 under this subdivision shall be guilty of a class E felony for any
7 subsequent violation of this section, regardless of the amount of tobac-
8 co products involved in such violation.
9 (4) For purposes of this subdivision, such person shall knowingly
10 transport or have in his custody, possession or under his control tobac-
11 co or cigars on which such taxes have not been assumed or paid by a
12 distributor appointed by the commissioner [of taxation and finance]
13 where such person has knowledge of the requirement of the tax on tobacco
14 products and, where to his knowledge, such taxes have not been assumed
15 or paid on such tobacco products by a distributor appointed by the
16 commissioner of taxation and finance.
17 [(k)] (i) Any person who falsely or fraudulently makes, alters or
18 counterfeits a registration certificate or sticker required under the
19 provisions of section four hundred eighty-a of this chapter, or causes
20 or procures to be falsely or fraudulently made, altered or counterfeited
21 any such registration certificate or sticker, or knowingly and willfully
22 utters, purchases, passes or tenders as true any such false, altered or
23 counterfeited registration certificate or sticker, and any person who
24 knowingly and willfully makes, causes to be made, purchases or receives
25 any device for forging or counterfeiting any registration certificate or
26 sticker required under the provisions of such section, or who knowingly
27 and willfully possesses any such device, shall be guilty of a class B
28 misdemeanor.
29 § 29. Section 1815 of the tax law, as amended by chapter 170 of the
30 laws of 1994, clause (i) of subparagraph (A) of paragraph 1 of subdivi-
31 sion (a) as amended by section 10, subparagraph (B) of paragraph 1 of
32 subdivision (a) as amended by section 11 and subparagraph (C) of para-
33 graph 1 of subdivision (a) as amended by section 12 of part E of chapter
34 60 of the laws of 2007, is amended to read as follows:
35 § 1815. Highway use and fuel use taxes. - (a) Violations. (1) It shall
36 be unlawful for any person to:
37 (A) (i) Use or cause or permit to be used, any public highway in this
38 state for the operation of a motor vehicle subject to the provisions of
39 article twenty-one of this chapter without first applying for and
40 obtaining the certificate of registration required under such article;
41 (ii) Use or cause or permit to be used, any public highway in this
42 state for the operation of a qualified motor vehicle subject to the
43 provisions of article twenty-one-A of this chapter without first obtain-
44 ing the license and decal required pursuant to such article or to carry
45 or cause or permit to be carried upon any qualified motor vehicle a
46 license or decal which has been suspended or revoked or which was issued
47 for a qualified motor vehicle other than the one on which carried. The
48 operation of any qualified motor vehicle on any public highway of this
49 state without carrying thereon the license or decal required under such
50 article shall be presumptive evidence that a license or decal has not
51 been obtained for such qualified motor vehicle;
52 (B) Operate, or cause or permit to be operated, on any public highway
53 any motor vehicle subject to the provisions of article twenty-one of
54 this chapter having an actual gross or unloaded weight in excess of the
55 gross or unloaded weight set forth on the certificate of registration
56 issued for such motor vehicle;
S. 60--A 227 A. 160--A
1 (C) Fail to deliver or surrender, pursuant to the provisions of arti-
2 cle twenty-one or twenty-one-A of this chapter or any rule or regulation
3 promulgated by the commissioner, a certificate of registration or
4 license or decal to such commissioner, or any person directed by such
5 commissioner to take possession thereof;
6 (D) Fail [to make any return under article twenty-one or twenty-one-A
7 of this chapter or] to keep records of operations of motor vehicles or
8 qualified motor vehicles as the commissioner shall prescribe;
9 (E) [Make any false return; or
10 (F)] Violate any other provision of article twenty-one or twenty-one-A
11 of this chapter or any rule or regulation promulgated thereunder.
12 (2) Any person who violates any provision of this subdivision, upon a
13 first conviction shall be subject to a fine of not less than one hundred
14 dollars or more than two hundred fifty dollars; and upon a second or
15 subsequent conviction to a fine of not less than two hundred fifty
16 dollars or more than five hundred dollars or by imprisonment for not
17 more than ten days. Except as otherwise provided by law such a violation
18 shall not be a crime and the penalty or punishment imposed therefor
19 shall not be deemed for any purpose a penal or criminal penalty or
20 punishment and shall not impose any disability upon or affect or impair
21 the credibility as a witness, or otherwise, of any person convicted
22 thereof.
23 (3) For the purposes of conferring jurisdiction upon courts and police
24 officers, and on the officers specified in subdivision four of section
25 2.10 of the criminal procedure law and on judicial officers generally,
26 such violations shall be deemed traffic infractions and for such purpose
27 only all provisions of law relating to traffic infractions shall apply
28 to such violations; provided, however, that the commissioner of motor
29 vehicles, any hearing officer appointed by him, or any administrative
30 tribunal authorized to hear and determine any charges or offenses which
31 are traffic infractions shall not have jurisdiction of such infractions.
32 (4) Upon the conviction of any person for a violation of any of the
33 provisions of this subdivision, the trial court or the clerk thereof
34 shall within forty-eight hours certify the facts of the case to the
35 commissioner and such certificate shall be presumptive evidence of the
36 facts recited therein. If any such conviction shall be reversed upon
37 appeal therefrom, the person whose conviction has been so reversed may
38 serve upon the commissioner a certified copy of the order of reversal
39 and the commissioner shall thereupon record the same.
40 (b) [Felonies. Any person who files or causes to be filed any return,
41 affidavit or statement required or permitted by article twenty-one or
42 twenty-one-A of this chapter which is willfully false or fraudulent or
43 who willfully fails to file a return with intent to evade the tax is
44 guilty of a class E felony.
45 (c)] An official weigh slip or ticket issued and certified by any
46 truck weigher in the employ of the department of transportation or by
47 any duly licensed weight master shall constitute prima facie evidence of
48 the information therein set forth and of the operation of the vehicle
49 therein described upon a public highway and shall be admissible before
50 any court in any violation proceeding or criminal proceeding.
51 § 30. Section 1817 of the tax law, as added by chapter 65 of the laws
52 of 1985, paragraph 1 of subdivision (c) as amended by chapter 411 of the
53 laws of 1986, subdivision (e) as amended by chapter 765 of the laws of
54 1985, subdivision (g) as amended by chapter 412 of the laws of 1986,
55 subdivision (h) as amended by chapter 275 of the laws of 1986, subdivi-
56 sion (i) as amended by chapter 261 of the laws of 1988, subdivision (k)
S. 60--A 228 A. 160--A
1 as amended by chapter 3 of the laws of 2004, subdivisions (l) and (s) as
2 amended and subdivisions (q) and (r) as added by chapter 2 of the laws
3 of 1995, subdivision (o) as added by chapter 61 of the laws of 1989,
4 subdivision (p) as added by chapter 810 of the laws of 1992 and subdivi-
5 sion (t) as added by section 3 of part A of chapter 35 of the laws of
6 2006, is amended to read as follows:
7 § 1817. Sales and compensating use taxes.--(a) [Willful failure to
8 file a return or report.--Any person required under article twenty-eight
9 of this chapter to make a return or report (other than a return of
10 compensating use tax), who willfully fails to make such return or
11 report, at the time or times so required, shall be guilty of a misdemea-
12 nor.
13 (b) Fraudulent returns, reports, statements or other documents.--(1)
14 Any person who willfully makes and subscribes any return, report, state-
15 ment or other document which is required to be filed with or furnished
16 to the tax commission or to any person, pursuant to the provisions of
17 article twenty-eight of this chapter, which he does not believe to be
18 true and correct as to every material matter shall be guilty of a misde-
19 meanor.
20 (2) Any person who willfully delivers or discloses to the tax commis-
21 sion or to any person, pursuant to the provisions of article twenty-
22 eight of this chapter, any list, return, report, account, statement or
23 other document known by him to be fraudulent or to be false as to any
24 material matter shall be guilty of a misdemeanor.
25 (3) For purposes of this section, the omission by any person of any
26 material matter with intent to deceive shall constitute the delivery or
27 disclosure of a document known by him to be fraudulent or to be false as
28 to any material matter.
29 (c) Failure to collect tax.--(1) Any person who willfully fails to
30 collect the tax imposed under article twenty-eight of this chapter from
31 a customer shall, in addition to other penalties provided by law, be
32 guilty of a misdemeanor.
33 (2) A person is guilty of failure to collect sales tax when he fails
34 to collect a sales tax required to be collected by article twenty-eight
35 of this chapter and when (a) he does so with intent to defraud the state
36 or a political subdivision thereof and thereby deprives the state or a
37 political subdivision thereof, or both together, of ten thousand dollars
38 or more, or (b) he does so with intent to defraud the state or a poli-
39 tical subdivision thereof through a common scheme or plan consisting of
40 ten or more failures to collect the required tax on sales in the amount
41 of one hundred dollars or more each. Failure to collect sales tax under
42 this paragraph is a class E felony.
43 (d)] Any person required to obtain a certificate of authority under
44 section eleven hundred thirty-four of this chapter who, without possess-
45 ing a valid certificate of authority, willfully (1) sells tangible
46 personal property or services subject to tax, receives amusement charges
47 or operates a hotel, (2) purchases or sells tangible personal property
48 for resale, or (3) sells automotive fuel; and any person who fails to
49 surrender a certificate of authority as required by such article shall
50 be guilty of a misdemeanor.
51 [(e)] (b) Any person required to obtain a certificate of authority
52 under section eleven hundred thirty-four of this chapter who within five
53 years after a determination by the tax commission, pursuant to such
54 section, to suspend, revoke or refuse to issue a certificate of authori-
55 ty has become final, and without possession of a valid certificate of
56 authority (1) sells tangible personal property or services subject to
S. 60--A 229 A. 160--A
1 tax, receives amusement charges or operates a hotel, (2) purchases or
2 sells tangible personal property for resale, or (3) sells automotive
3 fuel, shall be guilty of a misdemeanor. It shall be an affirmative
4 defense that such person performed the acts described in this subdivi-
5 sion without knowledge of such determination. Any person who violates a
6 provision of this subdivision, upon conviction, shall be subject to a
7 fine in any amount authorized by this article, but not less than five
8 hundred dollars, in addition to any other penalty provided by law.
9 [(f)] (c) Any person who willfully fails to file a notice of a show as
10 required by article twenty-eight of this chapter or who willfully rents,
11 leases or grants a license to use space for a show or operates a show
12 without obtaining a permit pursuant to paragraph two of subdivision (b)
13 of section eleven hundred thirty-four of this chapter shall be guilty of
14 a misdemeanor.
15 [(g)] (d) Any person (1) who willfully fails to charge separately the
16 tax imposed under article twenty-eight of this chapter or to state such
17 tax separately on any bill, statement, memorandum or receipt issued or
18 employed by him upon which the tax is required to be stated separately
19 as provided in subdivision (a) of section eleven hundred thirty-two of
20 this chapter; or (2) who shall refer or cause reference to be made to
21 such tax in a form or manner other than that required by such article
22 twenty-eight, shall be guilty of a misdemeanor.
23 [(h)] (e) Any person willfully failing to file a bond or other securi-
24 ty or deposit taxes in any banking institution where such filing or
25 deposit is required pursuant to the provisions of paragraph two or three
26 of subdivision (e) of section eleven hundred thirty-seven of this chap-
27 ter shall be guilty of a misdemeanor.
28 [(i)] (f) Any owner of a filling station who shall willfully and know-
29 ingly have in his custody, possession or under his control any motor
30 fuel or diesel motor fuel on which (1) the prepaid tax imposed by
31 section eleven hundred two of this chapter has not been assumed or paid
32 by a distributor registered as such under article twelve-A of this chap-
33 ter or (2) the prepaid tax imposed by section eleven hundred two of this
34 chapter was required to have been passed through to him and has not been
35 included in the cost of such fuel to him, shall in either case, be guil-
36 ty of a class E felony. For purposes of this subdivision, such owner
37 shall willfully and knowingly have in his custody, possession or under
38 his control any motor fuel or diesel motor fuel on which such tax has
39 not been assumed or paid by a distributor registered as such where such
40 owner has knowledge of the requirement that such tax be paid and where,
41 to his knowledge, such tax has not been assumed or paid by such regis-
42 tered distributor on such motor fuel or diesel motor fuel. Such owner
43 shall willfully and knowingly have in his custody, possession or under
44 his control motor fuel or diesel motor fuel on which such tax is
45 required to have been passed through to him and has not been included in
46 the cost to him where such owner has knowledge of the requirement that
47 such tax be passed through and where to his knowledge such tax has not
48 been so included.
49 [(j)] (g) Any person who willfully fails to keep any records required
50 by article twenty-eight of this chapter shall be guilty of a misdemea-
51 nor.
52 [(k)] (h) The penalties provided for in this section shall not
53 preclude prosecution pursuant to the penal law with respect to the will-
54 ful failure of any person to pay over to the state any sales tax imposed
55 by section eleven hundred four, eleven hundred five, eleven hundred
56 seven, eleven hundred eight or eleven hundred nine of this chapter or by
S. 60--A 230 A. 160--A
1 any local law adopted by any city or county pursuant to article twenty-
2 nine of this chapter, whenever such person has been required to collect
3 and has collected any such sales tax. In any such prosecution under the
4 penal law, a person who has been required to collect and has collected
5 any such tax shall be deemed to have acted in a fiduciary character with
6 respect to the state or a political subdivision thereof, and the tax
7 collected shall be deemed to have been entrusted to such person by the
8 state or a political subdivision thereof.
9 [(l) Any person who willfully fails to pay sales or compensating use
10 tax, or to file a return of compensating use tax imposed by or pursuant
11 to the authority of article twenty-eight or twenty-nine of this chapter,
12 with respect to the purchase or use of automotive fuel or cigarettes
13 shall be guilty of a misdemeanor.
14 (m) Any person who willfully issues a false or fraudulent resale or
15 other exemption certificate or document with intent to evade tax shall
16 be guilty of a misdemeanor.
17 (n) Any person who, being duly subpoenaed, pursuant to section one
18 hundred seventy-four of this chapter or the provisions of the civil
19 practice law and rules, in connection with a matter arising under arti-
20 cle twenty-eight of this chapter, to attend as a witness or to produce
21 books, accounts, records, memoranda, documents or other papers who (i)
22 fails or refuses to attend without lawful excuse, (ii) refuses to be
23 sworn, (iii) refuses to answer any material and proper question, or (iv)
24 refuses, after reasonable notice, to produce books, accounts, records,
25 memoranda, documents or other papers in his possession or under his
26 control which constitute material and proper evidence shall be guilty of
27 a misdemeanor.
28 (o)] (i) Any entertainment promoter who willfully authorizes an enter-
29 tainment vendor, to whom such promoter has either directly or indirectly
30 rented, leased, granted a license to use or under any other arrangement
31 made space available in order for such vendor to make taxable sales of
32 tangible personal property at an entertainment event, without first
33 requiring such vendor to obtain a certificate of authority or who will-
34 fully fails to obtain an entertainment promoter certificate as required
35 under article twenty-eight of this chapter shall be guilty of a misde-
36 meanor.
37 [(p)] (j) Any person described in subdivision (a) of section eleven
38 hundred forty-two-A of this chapter who willfully fails to include all
39 information required under such section on a ticket or other memorandum
40 as described in such section shall be guilty of a misdemeanor.
41 [(q)] (k) Any owner of a place of business selling cigarettes at
42 retail who shall willfully and knowingly have in such owner's custody or
43 possession or under such owner's control any cigarettes on which (1) the
44 prepaid tax imposed by section eleven hundred three of this chapter has
45 not been assumed or paid by an agent licensed as such under article
46 twenty of this chapter or (2) the prepaid tax imposed by section eleven
47 hundred three of this chapter was required to have been passed through
48 to such owner and has not been included in the cost of such cigarettes
49 to such owner shall, in either case, be guilty of a misdemeanor.
50 Provided, however, if the amount of cigarettes is twenty thousand or
51 more, such owner shall be guilty of a class E felony. For purposes of
52 this subdivision, such owner shall willfully and knowingly have in such
53 owner's custody or possession or under such owner's control any ciga-
54 rettes on which such tax has not been assumed or paid by an agent
55 licensed as such under such article twenty where such owner has know-
56 ledge of the requirement that such tax be assumed or paid and where, to
S. 60--A 231 A. 160--A
1 such owner's knowledge, such tax has not been assumed or paid by such an
2 agent on such cigarettes. Such owner shall willfully and knowingly have
3 in such owner's custody or possession or under such owner's control
4 cigarettes on which such tax is required to have been passed through to
5 such owner and has not been included in the cost to such owner where
6 such owner has knowledge of the requirement that such tax be passed
7 through and where to such owner's knowledge such tax has not been so
8 included.
9 [(r)] (l) Any person who falsely or fraudulently makes, alters or
10 counterfeits any stamp prescribed by the commissioner under the
11 provisions of article twenty-eight or pursuant to the authority of arti-
12 cle twenty-nine of this chapter, or causes or procures to be falsely or
13 fraudulently made, altered or counterfeited any such stamp, or knowingly
14 and willfully utters, purchases, passes or tenders as true any such
15 false, altered or counterfeited stamp, or knowingly and willfully
16 possesses any cigarettes in packages bearing any such false, altered or
17 counterfeited stamp, and any person who knowingly and willfully makes,
18 causes to be made, purchases or receives any device for forging or coun-
19 terfeiting any stamp prescribed by the commissioner under the provisions
20 of article twenty-eight or pursuant to the authority of article twenty-
21 nine of this chapter, or who knowingly and willfully possesses any such
22 device, shall be guilty of a class E felony. For the purposes of this
23 subdivision, the words "stamp prescribed by the commissioner" shall
24 include a stamp, impression or imprint made by a metering machine, the
25 design of which has been approved by the commissioner.
26 [(s)] (m) All of the provisions of this section shall apply for
27 purposes of any taxes administered by the commissioner and imposed
28 pursuant to the authority of article twenty-nine of this chapter and for
29 the purposes of any taxes imposed by article twenty-eight-A of this
30 chapter. References in subdivisions [(i), (l), (q) and (r)] (f), (k),
31 and (l) of this section to taxes imposed by or pursuant to the authority
32 of article twenty-eight or twenty-nine of this chapter include the taxes
33 required to be prepaid pursuant to section eleven hundred two or eleven
34 hundred three of this chapter.
35 [(t)] (n) (1) Every person engaged in the retail sale of motor fuel
36 and/or diesel motor fuel or a distributor of such fuels, as defined in
37 article twelve-A of this chapter, shall comply with the provisions of
38 section three hundred ninety-two-i of the general business law by reduc-
39 ing the prices charged for motor fuel and diesel motor fuel in an amount
40 equal to any reduction in taxes prepaid by the distributor or imposed on
41 retail customers resulting from computing sales and compensating use
42 taxes at a cents per gallon rate pursuant to the provisions of paragraph
43 two of subdivision (e) and subdivision (m) of section one thousand one
44 hundred eleven of this chapter.
45 (2) The commissioner, in cooperation with the state consumer
46 protection board, shall monitor the prices charged by persons engaged in
47 the retail sale or distribution of motor fuel and diesel motor fuel.
48 (3) Upon a finding by the commissioner that a person engaged in the
49 retail sale of motor fuel and/or diesel motor fuel or in the distrib-
50 ution of such fuels has violated the provisions of section three hundred
51 ninety-two-i of the general business law, the commissioner shall provide
52 notice of such violation to such person and hold a hearing on such
53 violation, with an opportunity for the accused to be heard, not less
54 than ten days after notice is provided. A violation of section three
55 hundred ninety-two-i of the general business law shall subject the
S. 60--A 232 A. 160--A
1 person violating such section to a civil penalty of up to five thousand
2 dollars for each day such violation occurs.
3 § 31. Section 1818 of the tax law, as added by chapter 65 of the laws
4 of 1985, is amended to read as follows:
5 § 1818. Real estate transfer tax.--Any willful act or omission, by any
6 person which constitutes a violation of any provision of article thir-
7 ty-one of this chapter [or any willful attempt to evade or defeat the
8 tax imposed by such article] shall constitute a misdemeanor.
9 § 32. Section 1820 of the tax law, as added by chapter 833 of the laws
10 of 1987, is amended to read as follows:
11 § 1820. Boxing and wrestling exhibitions tax. Any willful act or omis-
12 sion by any person which constitutes a violation of any provision of
13 article nineteen of this chapter [or any willful attempt to evade or
14 defeat the tax imposed by such article] shall constitute a misdemeanor.
15 § 33. The tax law is amended by adding three new sections 1831, 1832
16 and 1833 to read as follows:
17 § 1831. Failure to obey subpoenas. Any person who is duly subpoenaed,
18 pursuant to section one hundred seventy-four of this chapter or the
19 provisions of the civil practice law and rules, in connection with any
20 matter arising under this chapter, or any related income or earnings tax
21 statute, to attend as a witness or to produce books, accounts, records,
22 memoranda, documents or other papers, and who (1) fails or refuses to
23 attend without lawful excuse, (2) refuses to be sworn, (3) without
24 asserting a valid legal privilege refuses to answer any material and
25 proper question, or (4) without asserting a valid legal privilege
26 refuses, after reasonable notice, to produce books, accounts, records,
27 memoranda, documents or other papers that constitute material and proper
28 evidence in his or her possession or under his or her control, shall be
29 guilty of a misdemeanor.
30 § 1832. Non-preemption; penal law anticipatory offenses and accesso-
31 rial liability apply. (a) Unless expressly stated otherwise, the penal-
32 ties provided in this chapter shall not preclude prosecution for any
33 offense under the penal law or any other criminal statute.
34 (b) The offenses specified in title G of the penal law and the
35 provisions of article twenty of the penal law are applicable to all
36 offenses defined in this chapter.
37 § 1833. Tax preparer registration. A commercial tax return preparer,
38 as defined by paragraph three of subdivision (a) of section thirty-two
39 of this chapter, who willfully and with the intent to evade the require-
40 ments of section thirty-two of this chapter, fails to sign his or her
41 name to any tax return that requires a signature or fails to register as
42 required by such section thirty-two, will be guilty of a class A misde-
43 meanor.
44 § 34. This act shall take effect immediately and apply to offenses
45 committed on and after such effective date.
46 SUBPART K
47 Section 1. Section 702 of the county law is amended by adding a new
48 subdivision 7 to read as follows:
49 7. Notwithstanding any provision of law with respect to the require-
50 ments of residence, a district attorney may appoint one or more attor-
51 neys employed by the department of taxation and finance as special
52 assistant district attorneys with respect to any investigation or prose-
53 cution concerning, in whole or part, a violation of article thirty-seven
S. 60--A 233 A. 160--A
1 of the tax law or of the penal law as it applies to the enforcement of
2 any provision of the tax law.
3 § 2. This act shall take effect immediately.
4 SUBPART L
5 Section 1. Subdivision 4 of section 1700 of the tax law, as added by
6 section 1 of part CC1 of chapter 57 of the laws of 2008, is amended to
7 read as follows:
8 4. To participate in the voluntary disclosure and compliance program,
9 an eligible taxpayer must apply by submitting a disclosure statement in
10 the form and manner prescribed by the commissioner. The disclosure
11 statement shall contain all the information the commissioner reasonably
12 deems necessary to effectively administer the program. As long as all
13 the requirements of the voluntary disclosure and compliance program are
14 met, no application shall be denied solely because the taxpayer has
15 admitted that the delinquency was the result of willful or fraudulent
16 conduct. Except in instances where the taxpayer has failed to comply
17 with the terms of a voluntary disclosure and compliance agreement, the
18 commissioner shall not use the taxpayer's disclosure as evidence in any
19 proceeding brought against the taxpayer or reveal the contents of the
20 disclosure to any law enforcement or other agency. However, the disclo-
21 sure of any returns or reports filed under this program with the secre-
22 tary of the treasury of the United States, his or her delegates, or the
23 proper tax officer of any state or city is permitted as otherwise
24 provided for in this chapter.
25 § 2. This act shall take effect immediately.
26 SUBPART M
27 Section 1. Paragraph a of subdivision twenty-sixth of section 171 of
28 the tax law, as amended by section 1 of part M3 of chapter 62 of the
29 laws of 2003, is amended to read as follows:
30 a. Set the overpayment and underpayment rates of interest for purposes
31 of articles twelve-A, eighteen, twenty and twenty-one of this chapter.
32 Such rates shall be the overpayment and underpayment rates of interest
33 set pursuant to subsection (e) of section one thousand ninety-six of
34 this chapter, but the underpayment rate shall not be less than [six]
35 seven and one-half percent per annum. Any such rates set by such commis-
36 sioner shall apply to taxes, or any portion thereof, which remain or
37 become due or overpaid (other than overpayments under such article twen-
38 ty and not including reimbursements, if any, under any of such articles)
39 on or after the date on which such rates become effective and shall
40 apply only with respect to interest computed or computable for periods
41 or portions of periods occurring in the period during which such rates
42 are in effect. In computing the amount of any interest required to be
43 paid under such articles by such commissioner or by the taxpayer, or any
44 other amount determined by reference to such amount of interest, such
45 interest and such amount shall be compounded daily.
46 § 2. Subsections (a) and (j) of section 684 of the tax law, as amended
47 by section 6 of part R of chapter 85 of the laws of 2002, are amended to
48 read as follows:
49 (a) General.--If any amount of income tax is not paid on or before the
50 last date prescribed in this article for payment, interest on such
51 amount at the underpayment rate set by the commissioner pursuant to
52 section six hundred ninety-seven of this part, or if no rate is set, at
S. 60--A 234 A. 160--A
1 the rate of [six per cent] seven and one-half percent per annum shall be
2 paid for the period from such last date to the date paid, whether or not
3 any extension of time for payment was granted. Interest under this
4 subsection shall not be paid if the amount thereof is less than one
5 dollar. If the time for filing of a return of tax withheld by an employ-
6 er is extended, the employer shall pay interest for the period for which
7 the extension is granted and may not charge such interest to the employ-
8 ee.
9 (j) Interest on erroneous refund.--Any portion of tax or other amount
10 which has been erroneously refunded, and which is recoverable by the
11 commissioner, shall bear interest at the underpayment rate set by the
12 commissioner pursuant to section six hundred ninety-seven of this part,
13 or if no rate is set, at the rate of [six per cent] seven and one-half
14 percent per annum from the date of the payment of the refund, but only
15 if it appears that any part of the refund was induced by fraud or a
16 misrepresentation of a material fact.
17 § 3. Paragraph 1 of subsection (c) of section 685 of the tax law, as
18 amended by section 7 of part R of chapter 85 of the laws of 2002, is
19 amended to read as follows:
20 (1) Addition to the tax.--Except as otherwise provided in this
21 subsection and subsection (d) of this section, in the case of any under-
22 payment of estimated tax by an individual, there shall be added to the
23 tax under this article for the taxable year an amount determined by
24 applying the underpayment rate established under subsection (j) of
25 section six hundred ninety-seven of this part, or if no rate is set, at
26 the rate of [six] seven and one-half percent per annum, to the amount of
27 the underpayment for the period of the underpayment. Such period shall
28 run from the due date for the required installment to the earlier of the
29 fifteenth day of the fourth month following the close of the taxable
30 year or, with respect to any portion of the underpayment, the date on
31 which such portion is paid. For purposes of determining such date, a
32 payment of estimated tax shall be credited against unpaid required
33 installments in the order in which such installments are required to be
34 paid. There shall be four required installments for each taxable year,
35 due on April fifteenth, June fifteenth and September fifteenth of such
36 taxable year and on January fifteenth of the following taxable year.
37 § 4. Paragraph 1 of subsection (j) of section 697 of the tax law, as
38 amended by section 2 of part M3 of chapter 62 of the laws of 2003, is
39 amended to read as follows:
40 (1) The commissioner shall set the overpayment and underpayment rates
41 of interest to be paid pursuant to sections six hundred eighty-four, six
42 hundred eighty-five and six hundred eighty-eight of this part, but if no
43 such rates of interest are set, such [rates] overpayment rate shall be
44 deemed to be set at six percent per annum and such underpayment rate
45 shall be deemed to be set at seven and one-half percent per annum. Such
46 rates shall be the rates prescribed in paragraphs two and four of this
47 subsection, but the underpayment rate shall not be less than [six] seven
48 and one-half percent per annum. Any such rates set by the commissioner
49 shall apply to taxes, or any portion thereof, which remain or become due
50 or overpaid on or after the date on which such rates become effective
51 and shall apply only with respect to interest computed or computable for
52 periods or portions of periods occurring in the period during which such
53 rates are in effect.
54 § 5. Paragraph 2 of subsection (j) of section 697 of the tax law, as
55 amended by section 10 of part R of chapter 85 of the laws of 2002, is
56 amended to read as follows:
S. 60--A 235 A. 160--A
1 (2) Rates of interest. (A) Overpayment rate. The overpayment rate of
2 interest set under this subsection shall be the [sum of (i) the] federal
3 short-term rate as provided under paragraph three of this subsection[,
4 plus (ii) two percentage points].
5 (B) Underpayment rate. The underpayment rate of interest set under
6 this subsection shall be the sum of (i) the federal short-term rate as
7 provided under paragraph three of this subsection, plus (ii) [four] five
8 and one-half percentage points.
9 § 6. Subsections (a) and (j) of section 1084 of the tax law, as
10 amended by section 123 and subsection (j) as relettered by section 148
11 of chapter 61 of the laws of 1989, are amended to read as follows:
12 (a) General.--If any amount of tax is not paid on or before the last
13 date prescribed in article nine or nine-a of this chapter for payment,
14 interest on such amount at the underpayment rate set by the commissioner
15 [of taxation and finance] pursuant to section one thousand ninety-six of
16 this article, or if no rate is set, at the rate of [six] seven and one-
17 half percent per annum shall be paid for the period from such last date
18 to the date paid, whether or not any extension of time for payment was
19 granted. Interest under this subsection shall not be paid if the amount
20 thereof is less than one dollar.
21 (j) Interest on erroneous refund.---Any portion of tax or other amount
22 which has been erroneously refunded, and which is recoverable by the
23 commissioner [of taxation and finance], shall bear interest at the
24 underpayment rate set by the commissioner pursuant to section one thou-
25 sand ninety-six of this article, or if no rate is set, at the rate of
26 [six] seven and one-half percent per annum from the date of the payment
27 of the refund, but only if it appears that any part of the refund was
28 induced by fraud or a misrepresentation of a material fact.
29 § 7. Paragraph 1 of subsection (c) of section 1085 of the tax law, as
30 amended by chapter 57 of the laws of 1993, is amended to read as
31 follows:
32 (1) If any taxpayer fails to file a declaration of estimated tax under
33 article nine-A of this chapter, or fails to pay all or any part of an
34 amount which is applied as an installment against such estimated tax, it
35 shall be deemed to have made an underpayment of estimated tax. There
36 shall be added to the tax for the taxable year an amount at the under-
37 payment rate set by the commissioner pursuant to section one thousand
38 ninety-six of this article, or if no rate is set, at the rate of [six]
39 seven and one-half percent per annum upon the amount of the underpayment
40 for the period of the underpayment but not beyond the fifteenth day of
41 the third month following the close of the taxable year. The amount of
42 the underpayment shall be, with respect to any installment of estimated
43 tax computed on the basis of the preceding year's tax, the excess of the
44 amount required to be paid over the amount, if any, paid on or before
45 the last day prescribed for such payment or, with respect to any other
46 installment of estimated tax, the excess of the amount of the install-
47 ment which would be required to be paid if the estimated tax were equal
48 to ninety-one percent of the tax shown on the return for the taxable
49 year (or if no return was filed, ninety-one percent of the tax for such
50 year) over the amount, if any, of the installment paid on or before the
51 last day prescribed for such payment. In any case in which there would
52 be no underpayment if "eighty percent" were substituted for "ninety-one
53 percent" each place it appears in this subsection, the addition to the
54 tax shall be equal to seventy-five percent of the amount otherwise
55 determined. No underpayment shall be deemed to exist with respect to a
S. 60--A 236 A. 160--A
1 declaration or installment otherwise due on or after the termination of
2 existence of the taxpayer.
3 § 8. Paragraph 1 of subsection (e) of section 1096 of the tax law, as
4 amended by section 3 of part M3 of chapter 62 of the laws of 2003, is
5 amended to read as follows:
6 (1) Authority to set interest rates.---The commissioner shall set the
7 overpayment and underpayment rates of interest to be paid pursuant to
8 sections two hundred thirteen, two hundred thirteen-b, two hundred
9 fifty-eight, two hundred sixty-three, two hundred ninety-four, one thou-
10 sand eighty-four, one thousand eighty-five, one thousand eighty-eight,
11 fourteen hundred sixty-one and fourteen hundred sixty-three of this
12 chapter, but if no such rate or rates of interest are set, such overpay-
13 ment rate [or rates] shall be deemed to be set at six percent per annum
14 and such underpayment rate shall be deemed to be set at seven and one-
15 half percent per annum. Such overpayment and underpayment rates shall be
16 the rates prescribed in paragraph two of this subsection, but the under-
17 payment rate shall not be less than [six] seven and one-half percent per
18 annum. Any such rates set by the commissioner shall apply to taxes, or
19 any portion thereof, which remain or become due or overpaid on or after
20 the date on which such rates become effective and shall apply only with
21 respect to interest computed or computable for periods or portions of
22 periods occurring in the period during which such rates are in effect.
23 § 9. Paragraph 2 of subsection (e) of section 1096 of the tax law, as
24 amended by chapter 61 of the laws of 1989 and subparagraph (B) as
25 amended by section 11 of part R of chapter 85 of the laws of 2002, is
26 amended to read as follows:
27 (2) General rule. (A) Overpayment rate. The overpayment rate set under
28 this subsection shall be the [sum of (i) the] federal short-term rate as
29 provided under paragraph three of this subsection[, plus (ii) two
30 percentage points].
31 (B) Underpayment rate. The underpayment rate set under this subsection
32 shall be the sum of (i) the federal short-term rate as provided under
33 paragraph three of this subsection, plus (ii) [five] seven percentage
34 points.
35 § 10. Subdivision (d) of section 1139 of the tax law, as amended by
36 chapter 61 of the laws of 1989, is amended to read as follows:
37 (d) (1) Except in respect to an overpayment made on a return described
38 in paragraph [(ii)] two of subdivision (a) of section eleven hundred
39 thirty-six [hereof] of this part or on a return described in subdivision
40 (c) of section eleven hundred thirty-seven-A of this part, interest
41 shall be allowed and paid upon any refund made or credit allowed pursu-
42 ant to this section except as otherwise provided in paragraph two of
43 this subdivision or subdivision (e) of this section and except that no
44 interest shall be allowed or paid if the amount thereof would be less
45 than one dollar. Such interest shall be at the overpayment rate set by
46 the commissioner [of taxation and finance] pursuant to section eleven
47 hundred forty-two of this part, or if no rate is set, at the rate of six
48 [per cent] percent per annum from the date when the tax, penalty or
49 interest refunded or credited was paid to a date preceding the date of
50 the refund check by not more than thirty days, provided, however, that
51 for the purposes of this subdivision any tax paid before the last day
52 prescribed for its payment shall be deemed to have been paid on such
53 last day. In the case of a refund or credit claimed on a return of tax
54 which is filed after the last date prescribed for filing such return
55 (determined with regard to extensions), or claimed on an application for
56 refund or credit, no interest shall be allowed or paid for any day
S. 60--A 237 A. 160--A
1 before the date on which the return or application is filed. For
2 purposes of this subdivision, a return or application for refund or
3 credit shall not be treated as filed until it is filed in processible
4 form. A return or application is in a processible form if [such return]
5 it is filed on a permitted form, and [such return] contains the taxpay-
6 er's name, address and identifying number and the required signatures,
7 and sufficient required information (whether on the return or applica-
8 tion or on required attachments) to permit the mathematical verification
9 of tax liability shown on the return or refund or credit claimed on the
10 application.
11 (2) If a refund is made or a credit is allowed within three months
12 after the last date prescribed or permitted by extension of time for
13 filing a return on which the refund or credit was claimed or within
14 three months after the return was filed, whichever is later, or within
15 three months after an application for refund or credit is filed on which
16 that refund or credit was claimed, no interest will be allowed or paid
17 on that refund or credit.
18 § 11. Subdivision 9 of section 1142 of the tax law, as amended by
19 section 4 of part M3 of chapter 62 of the laws of 2003, is amended to
20 read as follows:
21 9. To set the overpayment and underpayment rates of interest for
22 purposes of sections eleven hundred thirty-nine and eleven hundred
23 forty-five of this part. Such rates shall be the overpayment and under-
24 payment rates of interest set pursuant to subsection (e) of section one
25 thousand ninety-six of this chapter, but the underpayment rate shall not
26 be less than [six] seven and one-half percent per annum. Any such rates
27 set by the commissioner shall apply to taxes, or any portion thereof,
28 which remain or become due or overpaid on or after the date on which
29 such rates become effective and shall apply only with respect to inter-
30 est computed or computable for periods or portions of periods occurring
31 in the period during which such rates are in effect. In computing the
32 amount of any interest required to be paid under this article by the
33 commissioner or by the taxpayer, or any other amount determined by
34 reference to such amount of interest, such interest and such amount
35 shall be compounded daily. The preceding sentence shall not apply for
36 purposes of computing the amount of any interest for failure to pay
37 estimated tax under subparagraph (iv) of paragraph one of subdivision
38 (a) of section [one thousand one] eleven hundred forty-five of this
39 [article] part.
40 § 12. Subparagraph (ii) of paragraph 1 and paragraph 2 of subdivision
41 (a) of section 1145 of the tax law, as amended by section 12 of part R
42 of chapter 85 of the laws of 2002, are amended to read as follows:
43 (ii) If any amount of tax is not paid on or before the last date
44 prescribed in this article for payment, interest on such amount at the
45 rate of fourteen and one-half percent per annum or at the underpayment
46 rate set by the commissioner pursuant to section eleven hundred forty-
47 two of this part, whichever is greater, shall be paid for the period
48 from such last date to the date paid, whether or not any extension of
49 time for payment was granted. Interest under this subparagraph shall
50 not be paid if the amount thereof is less than one dollar.
51 (2) If the failure to pay or pay over any tax to the commissioner
52 within the time required by this article is due to fraud, in lieu of the
53 penalties and interest provided for in subparagraphs (i) and (ii) of
54 paragraph one of this subdivision, there shall be added to the tax (i) a
55 penalty of fifty percent of the amount of the tax due, plus (ii) inter-
56 est on such unpaid tax at the rate of fourteen and one-half percent per
S. 60--A 238 A. 160--A
1 annum or the underpayment rate of interest set by the commissioner
2 pursuant to section eleven hundred forty-two of this part, whichever is
3 greater, for the period beginning on the last day prescribed by this
4 article for the payment of such tax (determined without regard to any
5 extension of time for paying) and ending on the day on which such tax is
6 paid, plus (iii) for the period beginning on the last day prescribed by
7 this article for the payment of such tax (determined without regard to
8 any extension of time for paying) and ending on the day the amount of
9 tax due is finally determined or, if earlier, on the day on which such
10 tax is paid, an amount equal to fifty percent of the interest payable
11 under subparagraph (ii) of this paragraph, on that portion of the unpaid
12 tax which is attributable to fraud.
13 § 13. Paragraph (a) of subdivision 1 of section 1405 of the abandoned
14 property law, as amended by section 13 of part R of chapter 85 of the
15 laws of 2002, is amended to read as follows:
16 (a) Notwithstanding any other provision of law, no owner of abandoned
17 property shall be entitled to receive interest on account of such aban-
18 doned property from and after the date a payment of such abandoned prop-
19 erty is hereafter made to the state comptroller pursuant to this chapter
20 or any law relating to abandoned property, whether or not he or she was
21 entitled to interest on such property prior to such date, except that
22 interest at the overpayment rate set by the commissioner of taxation and
23 finance pursuant to subsection (j) of section six hundred ninety-seven
24 of the tax law, [less] plus one percentage point, shall accrue to aban-
25 doned property hereafter paid to the state comptroller under the follow-
26 ing provisions of this chapter, for the first five years such property
27 is held by him or her:
28 (i) paragraph (a) of subdivision one of section three hundred of this
29 chapter; or
30 (ii) subdivision one of section four hundred of this chapter; or
31 (iii) paragraph (a) of subdivision one of section six hundred of this
32 chapter; or
33 (iv) subdivision one of section [ten hundred] one thousand of this
34 chapter.
35 § 14. Subdivision 6 of section 72-0201 of the environmental conserva-
36 tion law, as amended by section 14 of part R of chapter 85 of the laws
37 of 2002, is amended to read as follows:
38 6. In addition to any penalty that may be assessed pursuant to subdi-
39 vision five of this section, there shall be collected interest upon the
40 unpaid amount at the underpayment rate set by the commissioner of taxa-
41 tion and finance pursuant to section one thousand ninety-six of the tax
42 law, minus [two] four percentage points. Such interest shall accrue
43 thirty days from the date prescribed for fee payment until payment is
44 actually made to the department.
45 § 15. Subparagraph (iii) of paragraph 2 of subsection (a) of section
46 1112 of the insurance law, as amended by section 15 of part R of chapter
47 85 of the laws of 2002, is amended to read as follows:
48 (iii) If any insurer fails to pay all or any part of the initial
49 payment or estimated payment due pursuant to subparagraph (i) or (ii) of
50 this paragraph, it shall be deemed to have made an underpayment. There
51 shall be added to the amount due pursuant to paragraph one of this
52 subsection, an amount at the rate set for underpayments by the commis-
53 sioner of taxation and finance pursuant to section one thousand ninety-
54 six of the tax law, minus [two] four percentage points, or if no rate is
55 set, at the rate of six percent per annum upon the amount of the under-
56 payment for the period of the underpayment. In computing the amount of
S. 60--A 239 A. 160--A
1 any interest required to be paid, such interest shall not be compounded.
2 The amount of the underpayment shall be, with respect to the initial
3 payment or any estimated payment, the excess of the amount required to
4 be paid over the amount, if any, paid on or before the last day
5 prescribed for such payment. If the superintendent demands payment of
6 the initial payment or any estimated payment, and if such amount is paid
7 within ten days after the date of such demand, interest on the amount so
8 paid shall not be imposed for the period after the date of such demand.
9 No portion of the interest imposed pursuant to this subparagraph may be
10 waived.
11 § 16. Subparagraph (iv) of paragraph 2 of subsection (a) of section
12 1112 of the insurance law, as amended by chapter 61 of the laws of 1989,
13 is amended to read as follows:
14 (iv) Notwithstanding the provisions of section sixteen of the state
15 finance law, interest shall be allowed and paid at the rate set for
16 overpayments, plus two percentage points, by the commissioner of taxa-
17 tion and finance pursuant to section one thousand ninety-six of the tax
18 law, or if no rate is set, at the rate of six percent per annum upon any
19 overpayment, from the date payment was due to a date (to be determined
20 by the superintendent) preceding the date of a refund check by not more
21 than thirty days. In the case of a payment which is made after the last
22 date prescribed for payment of such payment, no interest shall be
23 allowed or paid for any day before the date on which the payment was
24 made. In computing the amount of interest required to be paid, such
25 interest shall not be compounded. No interest shall be allowed or paid
26 if the amount thereof is less than one dollar.
27 § 17. Paragraph (a) of subsection 4 of section 9110 of the insurance
28 law, as amended by section 16 of part R of chapter 85 of the laws of
29 2002, is amended to read as follows:
30 (a) Interest. If any amount of tax is not paid on or before the date
31 prescribed for payment thereof in subsection two of this section, inter-
32 est on such amount of tax at the underpayment rate set by the commis-
33 sioner of taxation and finance pursuant to section one thousand ninety-
34 six of the tax law, plus [three] one percentage [points] point, shall be
35 paid to the superintendent for the period from the date prescribed for
36 payment until the date paid.
37 § 18. Paragraph (a) of subsection 4 of section 9111 of the insurance
38 law, as amended by section 17 of part R of chapter 85 of the laws of
39 2002, is amended to read as follows:
40 (a) Interest. If any amount of tax is not paid on or before the date
41 prescribed for payment thereof in subsection two of this section, inter-
42 est on such amount of tax at the underpayment rate set by the commis-
43 sioner of taxation and finance pursuant to section one thousand ninety-
44 six of the tax law, plus [three] one percentage [points] point, shall be
45 paid to the superintendent for the period from the date prescribed for
46 payment until the date paid.
47 § 19. Paragraph 1 of subsection (d) of section 9111-a of the insurance
48 law, as amended by section 18 of part R of chapter 85 of the laws of
49 2002, is amended to read as follows:
50 (1) Interest. If any amount of tax is not paid on or before the date
51 prescribed for payment thereof in paragraph two of this subsection,
52 interest on such amount of tax at the underpayment rate set by the
53 commissioner of taxation and finance pursuant to section one thousand
54 ninety-six of the tax law, plus [three] one percentage [points] point,
55 shall be paid to the superintendent for the period from the date
56 prescribed for payment until the date paid.
S. 60--A 240 A. 160--A
1 § 20. Paragraph 1 of subsection (d) of section 9111-b of the insurance
2 law, as amended by section 19 of part R of chapter 85 of the laws of
3 2002, is amended to read as follows:
4 (1) Interest. If any amount of tax is not paid on or before the date
5 prescribed for payment thereof in paragraph two of this subsection,
6 interest on such amount of tax at the underpayment rate set by the
7 commissioner of taxation and finance pursuant to section one thousand
8 ninety-six of the tax law, plus [three] one percentage [points] point,
9 shall be paid to the superintendent for the period from the date
10 prescribed for payment until the date paid.
11 § 21. Paragraph 1 of subsection (d) of section 9111-c of the insurance
12 law, as amended by section 20 of part R of chapter 85 of the laws of
13 2002, is amended to read as follows:
14 (1) Interest. If any amount of tax is not paid on or before the date
15 prescribed for payment thereof in paragraph two of this subsection,
16 interest on such amount of tax at the underpayment rate set by the
17 commissioner of taxation and finance pursuant to section one thousand
18 ninety-six of the tax law, plus [three] one percentage [points] point,
19 shall be paid to the superintendent for the period from the date
20 prescribed for payment until the date paid.
21 § 22. Subparagraph (i) of paragraph (a) of subdivision 3 of section 77
22 of the lien law, as amended by section 21 of part R of chapter 85 of the
23 laws of 2002, is amended to read as follows:
24 (i) Relief to compel an interim or final accounting by the trustee; to
25 identify and recover trust assets in the hands of any person together
26 with interest accrued thereon from the time of the diversion. Interest
27 shall be computed at the rate equal to the underpayment rate set by the
28 commissioner of taxation and finance pursuant to subsection (e) of
29 section one thousand ninety-six of the tax law, minus [two] four
30 percentage points; to set aside as a diversion any unauthorized payment,
31 assignment or other transfer, whether voluntary or involuntary; to
32 enjoin a diversion; to recover damages for breach of trust or partic-
33 ipation therein;
34 § 23. Paragraph (a) of subdivision 8 of section 43.04 of the mental
35 hygiene law, as amended by section 22 of part R of chapter 85 of the
36 laws of 2002, is amended to read as follows:
37 (a) If an estimated payment made for a month to which an assessment
38 applies is less than ninety percent of the actual amount due for such
39 month, interest shall be due and payable to the commissioner of the
40 office of mental retardation and developmental disabilities on the
41 difference between the amount paid and the amount due from the day of
42 the month the estimated payment was due until the date of payment. The
43 rate of interest shall be twelve percent per annum or at the rate of
44 interest set by the commissioner of taxation and finance with respect to
45 underpayments of tax pursuant to subsection (e) of section one thousand
46 ninety-six of the tax law minus [two] four percentage points. Interest
47 under this paragraph shall not be paid if the amount thereof is less
48 than one dollar. Interest, if not paid by the due date of the following
49 month's estimated payment, may be collected by the commissioner of the
50 office of mental retardation and developmental disabilities pursuant to
51 paragraph (c) of subdivision six of this section in the same manner as
52 an assessment pursuant to subdivision two of this section.
53 § 24. Paragraph (a) of subdivision 8 of section 43.06 of the mental
54 hygiene law, as amended by section 23 of part R of chapter 85 of the
55 laws of 2002, is amended to read as follows:
S. 60--A 241 A. 160--A
1 (a) If an estimated payment made for a month to which an assessment
2 applies is less than ninety percent of the actual amount due for such
3 month, interest shall be due and payable to the commissioner on the
4 difference between the amount paid and the amount due from the day of
5 the month the estimated payment was due until the date of payment. The
6 rate of interest shall be twelve percent per annum or at the rate of
7 interest set by the commissioner of taxation and finance with respect to
8 underpayments of tax pursuant to subsection (e) of section one thousand
9 ninety-six of the tax law minus [two] four percentage points. Interest
10 under this paragraph shall not be paid if the amount thereof is less
11 than one dollar. Interest, if not paid by the due date of the following
12 month's estimated payment, may be collected by the commissioner pursuant
13 to paragraph (c) of subdivision six of this section in the same manner
14 as an assessment pursuant to subdivision two of this section.
15 § 25. Subparagraph (i) of paragraph (c) of subdivision 20 of section
16 2807-c of the public health law, as amended by section 24 of part R of
17 chapter 85 of the laws of 2002, is amended to read as follows:
18 (i) Interest shall be due and payable to the commissioner by a general
19 hospital or by a payor paying directly to a pool on the difference
20 between the amount paid to a pool and the amount due to such pool by the
21 hospital or payor from the day of the month the payment was due until
22 the date of payment. The rate of interest shall be twelve percent per
23 annum or at the rate of interest set by the commissioner of taxation and
24 finance with respect to underpayments of tax pursuant to subsection (e)
25 of section one thousand ninety-six of the tax law minus [two] four
26 percentage points. Interest under this paragraph shall not be paid if
27 the amount thereof is less than one dollar. Interest may be collected by
28 the commissioner in the same manner as an arrearage pursuant to this
29 subdivision.
30 § 26. Paragraph (a) of subdivision 8 of section 2807-d of the public
31 health law, as amended by section 25 of part R of chapter 85 of the laws
32 of 2002, is amended to read as follows:
33 (a) If an estimated payment made for a month to which an assessment
34 applies is less than ninety percent of the actual amount due for such
35 month, interest shall be due and payable to the commissioner on the
36 difference between the amount paid and the amount due from the day of
37 the month the estimated payment was due until the date of payment. The
38 rate of interest shall be twelve percent per annum or at the rate of
39 interest set by the commissioner of taxation and finance with respect to
40 underpayments of tax pursuant to subsection (e) of section one thousand
41 ninety-six of the tax law minus [two] four percentage points. Interest
42 under this paragraph shall not be paid if the amount thereof is less
43 than one dollar. Interest, if not paid by the due date of the following
44 month's estimated payment, may be collected by the commissioner pursuant
45 to paragraph (c) of subdivision six of this section in the same manner
46 as an assessment pursuant to subdivision two of this section.
47 § 27. Subparagraph (i) of paragraph (c) of subdivision 4 of section
48 2807-f of the public health law, as amended by section 26 of part R of
49 chapter 85 of the laws of 2002, is amended to read as follows:
50 (i) If a payment made for a month to which a payment factor applies is
51 less than ninety percent of the actual amount due for such month, inter-
52 est shall be due and payable to the commissioner by a health maintenance
53 organization on the difference between the amount paid and the amount
54 due from the day of the month the payment was due until the date of
55 payment. The rate of interest shall be twelve percent per annum or, if
56 greater, at the rate of interest set by the commissioner of taxation and
S. 60--A 242 A. 160--A
1 finance with respect to underpayments of tax pursuant to subsection (e)
2 of section one thousand ninety-six of the tax law minus [two] four
3 percentage points. Interest under this paragraph shall not be paid if
4 the amount thereof is less than one dollar.
5 § 28. Paragraph (a) of subdivision 8 of section 2807-j of the public
6 health law, as amended by section 27 of part R of chapter 85 of the laws
7 of 2002, is amended to read as follows:
8 (a) If a payment made pursuant to this section or to section twenty-
9 eight hundred seven-s or twenty-eight hundred seven-t of this article
10 for a month to which an allowance applies is less than ninety percent of
11 the amount due or which the commissioner estimates, based on available
12 financial and statistical data, is due for such month, interest shall be
13 due and payable to the commissioner by a designated provider of
14 services, or by a third-party payor, other than a state governmental
15 agency, that has elected to pay an allowance directly, on the difference
16 between the amount paid and the amount due or estimated to be due from
17 the day of the month the payment was due until the date of payment. The
18 rate of interest shall be twelve percent per annum or, if greater, at
19 the rate of interest set by the commissioner of taxation and finance
20 with respect to underpayments of tax pursuant to subsection (e) of
21 section one thousand ninety-six of the tax law minus [two] four percent-
22 age points. Interest under this paragraph shall not be paid if the
23 amount thereof is less than one dollar. Interest due from a designated
24 provider of services, if not paid by the due date of the following
25 month's payment, may be collected by the commissioner pursuant to para-
26 graph (c) of subdivision six of this section in the same manner as an
27 allowance pursuant to subdivision two of this section.
28 § 29. Paragraph (a) of subdivision 8 of section 3614-a of the public
29 health law, as amended by section 28 of part R of chapter 85 of the laws
30 of 2002, is amended to read as follows:
31 (a) If an estimated payment made for a month to which an assessment
32 applies is less than ninety percent of the actual amount due for such
33 month, interest shall be due and payable to the commissioner on the
34 difference between the amount paid and the amount due from the day of
35 the month the estimated payment was due until the date of payment. The
36 rate of interest shall be twelve percent per annum or at the rate of
37 interest set by the commissioner of taxation and finance with respect to
38 underpayments of tax pursuant to subsection (e) of section one thousand
39 ninety-six of the tax law minus [two] four percentage points. Interest
40 under this paragraph shall not be paid if the amount thereof is less
41 than one dollar. Interest, if not paid by the due date of the following
42 month's estimated payment, may be collected by the commissioner pursuant
43 to paragraph (c) of subdivision six of this section in the same manner
44 as an assessment pursuant to subdivision two of this section.
45 § 30. Paragraph (a) of subdivision 8 of section 3614-b of the public
46 health law, as amended by section 29 of part R of chapter 85 of the laws
47 of 2002, is amended to read as follows:
48 (a) If an estimated payment made for a month to which assessment
49 applies is less than ninety percent of the actual amount due for such
50 month, interest shall be due and payable to the commissioner on the
51 difference between the amount paid and the amount due from the day of
52 the month the estimated payment was due until the date of the payment.
53 The rate of interest shall be twelve percent per annum or at the rate of
54 interest set by the commissioner of taxation and finance with respect to
55 underpayment of tax pursuant to subsection (e) of section one thousand
56 ninety-six of the tax law minus [two] four percentage points. Interest
S. 60--A 243 A. 160--A
1 under this paragraph shall not be paid if the amount thereof is less
2 than one dollar. Interest, if not paid by the due date of the following
3 month's estimated payment, may be collected by the commissioner pursuant
4 to paragraph (c) of subdivision six of this section in the same manner
5 as an assessment pursuant to subdivision two of this section.
6 § 31. Subdivision 2 of section 726 of the real property tax law, as
7 amended by section 30 of part R of chapter 85 of the laws of 2002, is
8 amended to read as follows:
9 2. Interest shall be paid on the amount of any refund made pursuant to
10 this section, computed from the date of payment of the tax or other levy
11 or portion thereof refunded; provided, however, that interest on the
12 amount of any such refund for the period after any final order determin-
13 ing the assessment reviewed to be excessive, unequal or unlawful, or
14 determining that real property was misclassified, notwithstanding that
15 an appeal in the proceeding or from such order may be pending, shall be
16 paid only from the date that application for audit and payment of such
17 refund shall have been duly made to the appropriate fiscal officer or
18 body. Such rate of interest shall be the overpayment rate set by the
19 commissioner of taxation and finance pursuant to subsection (j) of
20 section six hundred ninety-seven of the tax law, plus two percentage
21 points, and such interest rate shall not be greater than nine percent
22 per annum. Provided, the interest rate of the first calendar quarter
23 set forth in the first month of the calendar year shall be the annual
24 interest rate, and shall be the rate of interest prescribed by this
25 subdivision. If, as a result of an appeal, there shall be an increase in
26 the amount to be refunded, for the purposes of computing the interest
27 thereon the determination upon such appeal shall be deemed a determi-
28 nation only with respect to such increase.
29 § 32. Subdivision 2 of section 924-a of the real property tax law, as
30 amended by chapter 355 of the laws of 2003, is amended to read as
31 follows:
32 2. The rate of interest applicable to the third calendar quarter of
33 each year, as set by the commissioner of taxation and finance pursuant
34 to subparagraph (A) of paragraph two of subsection (j) of section six
35 hundred ninety-seven of the tax law, plus two percentage points, shall
36 be the rate of interest applicable to unpaid real property taxes for
37 purposes of this section. Such commissioner shall set such rate on or
38 before the fifteenth day of July in each year. Such rate shall be effec-
39 tive for all warrants issued for a collection period commencing on or
40 after the first day of September next succeeding the date the rate of
41 interest is set. Provided, however, the rate of interest prescribed by
42 this subdivision shall in no event be less than twelve per centum per
43 annum. The state board shall inform each affected municipality of any
44 change in the rate established pursuant to this subdivision.
45 § 33. Paragraph (a) of subdivision 7 of section 367-i of the social
46 services law, as amended by section 32 of part R of chapter 85 of the
47 laws of 2002, is amended to read as follows:
48 (a) If an estimated payment made for a month to which an assessment
49 applies is less than ninety percent of the actual amount due for such
50 month, interest shall be due and payable to the commissioner of health
51 on the difference between the amount paid and the amount due from the
52 day of the month the estimated payment was due until the date of
53 payment. The rate of interest shall be twelve percent per annum or at
54 the rate of interest set by the commissioner of taxation and finance
55 with respect to underpayments of tax pursuant to subsection (e) of
56 section one thousand ninety-six of the tax law minus [two] four percent-
S. 60--A 244 A. 160--A
1 age points. Interest under this paragraph shall not be paid if the
2 amount thereof is less than one dollar. Interest, if not paid by the due
3 date of the following month's estimated payment, may be collected by the
4 commissioner of health pursuant to paragraph (c) of subdivision five of
5 this section in the same manner as an assessment pursuant to subdivision
6 two of this section.
7 § 34. Subdivision 4 of section 18 of the state finance law, as amended
8 by section 33 of part R of chapter 85 of the laws of 2002, is amended to
9 read as follows:
10 4. Unless provided otherwise by contract, statute or regulation, a
11 debtor that fails to make payment of a debt within the period set forth
12 in subdivision three of this section shall pay, in addition to the
13 amount of debt, the greater of: (a) interest on the outstanding balance
14 of the debt, accruing on the date on which the receipt of the first
15 billing invoice or first notice occurs, computed at the underpayment
16 rate which is in effect on the date which the receipt of the first bill-
17 ing invoice or first billing notice occurs; or (b) a late payment charge
18 of ten dollars. For the purposes of this section, the underpayment rate
19 shall be that rate set by the commissioner of taxation and finance and
20 published in the state register pursuant to subsection (e) of section
21 one thousand ninety-six of the tax law minus [two] four percentage
22 points. With respect to specific classes of debt collected by a state
23 agency, the director of the budget or official of a state agency so
24 designated by the director of the budget may approve the assessment of
25 interest or late payment charges at a date later than the thirtieth day
26 following such debtor's receipt of any billing invoice or notice sent by
27 the state agency.
28 § 35. Subdivisions (a) and (j) of section 11-1784 of the administra-
29 tive code of the city of New York, as amended by section 34 of part R of
30 chapter 85 of the laws of 2002, are amended to read as follows:
31 (a) General. If any amount of income tax is not paid on or before the
32 last date prescribed in this chapter for payment, interest on such
33 amount at the underpayment rate set by the commissioner of taxation and
34 finance pursuant to section 11-1797 of this subchapter, or if no rate is
35 set, at the rate of [six] seven and one-half percent per annum shall be
36 paid for the period from such last date to the date paid, whether or not
37 any extension of time for payment was granted. Interest under this
38 subdivision shall not be paid if the amount thereof is less than one
39 dollar. If the time for filing of a return of tax withheld by an employ-
40 er is extended, the employer shall pay interest for the period for which
41 the extension is granted and may not charge such interest to the employ-
42 ee.
43 (j) Interest on erroneous refund. Any portion of tax or other amount
44 which has been erroneously refunded, and which is recoverable by the
45 commissioner of taxation and finance, shall bear interest at the under-
46 payment rate set by such commissioner pursuant to section 11-1797 of
47 this subchapter, or if no rate is set, at the rate of [six] seven and
48 one-half percent per annum from the date of the payment of the refund,
49 but only if it appears that any part of the refund was induced by fraud
50 or a misrepresentation of a material fact.
51 § 36. Paragraph 1 of subdivision (c) of section 11-1785 of the admin-
52 istrative code of the city of New York, as amended by section 35 of part
53 R of chapter 85 of the laws of 2002, is amended to read as follows:
54 (1) Addition to the tax. Except as otherwise provided in this subdivi-
55 sion and subdivision (d) of this section, in the case of any underpay-
56 ment of estimated tax by an individual, there shall be added to the tax
S. 60--A 245 A. 160--A
1 under this chapter for the taxable year an amount determined by applying
2 the underpayment rate established under section 11-1797 of this subchap-
3 ter, or if no rate is set, at the rate of [six] seven and one-half
4 percent per annum, to the amount of the underpayment for the period of
5 the underpayment. Such period shall run from the due date for the
6 required installment to the earlier of the fifteenth day of the fourth
7 month following the close of the taxable year or, with respect to any
8 portion of the underpayment, the date on which such portion is paid. For
9 purposes of determining such date, a payment of estimated tax shall be
10 credited against unpaid required installments in the order in which such
11 installments are required to be paid. There shall be four required
12 installments for each taxable year, due on April fifteenth, June
13 fifteenth and September fifteenth of such taxable year and on January
14 fifteenth of the following taxable year.
15 § 37. Paragraph 1 of subdivision (j) of section 11-1797 of the admin-
16 istrative code of the city of New York, as amended by section 5 of part
17 M3 of chapter 62 of the laws of 2003, is amended to read as follows:
18 (1) Authority to set interest rates. The commissioner of taxation and
19 finance shall set the overpayment and underpayment rates of interest to
20 be paid pursuant to sections 11-1784, 11-1785 and 11-1788 of this
21 subchapter, but if no such rates of interest are set, such [rates] over-
22 payment rate shall be deemed to be set at six percent per annum and the
23 underpayment rate shall be deemed to be set at seven and one-half
24 percent per annum. Such rates shall be the rates prescribed by para-
25 graphs two and four of this subdivision, but the underpayment rate shall
26 not be less than [six] seven and one-half percent per annum. Any such
27 rates set by such commissioner shall apply to taxes, or any portion
28 thereof, which remain or become due or overpaid on or after the date on
29 which such rates become effective and shall apply only with respect to
30 interest computed or computable for periods or portions of periods
31 occurring in the period during which such rates are in effect.
32 § 38. Paragraph 2 of subdivision (j) of section 11-1797 of the admin-
33 istrative code of the city of New York, as amended by section 37 of part
34 R of chapter 85 of the laws of 2002, is amended to read as follows:
35 (2) Rates of interest. (A) Overpayment rate. The overpayment rate of
36 interest set under this subdivision shall be the [sum of (i) the] feder-
37 al short-term rate as provided under paragraph three of this subdivi-
38 sion[, plus (ii) two percentage points].
39 (B) Underpayment rate. The underpayment rate of interest set under
40 this subdivision shall be the sum of (i) the federal short-term rate as
41 provided under paragraph three of this subdivision, plus (ii) [four]
42 five and one-half percentage points.
43 § 39. This act shall take effect immediately, and shall apply to the
44 interest chargeable or due on taxes or on any other amounts, or any
45 portion thereof, that remain or become due or overpaid on that day,
46 except that:
47 (a) Section ten of this act shall take effect on June 1, 2009, and
48 shall apply to refunds or credits claimed on returns or applications for
49 refund or credit filed on or after that date;
50 (b) Provided, however, that the amendments to paragraph (a) of subdi-
51 vision 8 of section 2807-j of the public health law made by section
52 twenty-eight of this act shall not affect the expiration of such section
53 and shall be deemed to expire therewith; and
54 (c) Notwithstanding any other provision of law, for the calendar quar-
55 ter in which this act becomes a law, the department of taxation and
56 finance may provide appropriate general notice of the new interest rates
S. 60--A 246 A. 160--A
1 for that calendar quarter within twenty days after the date this act has
2 become a law, without needing to have notice of the rates published in
3 advance in the State Register, and shall cause such a notice to be
4 published in the State Register as soon as is practicable.
5 SUBPART N
6 Section 1. Section 1136 of the tax law is amended by adding a new
7 subdivision (i) to read as follows:
8 (i) (1) The following persons must file, in addition to any other
9 return required by this chapter, annual information returns with the
10 commissioner providing the information specified below about their tran-
11 sactions with vendors, hotel operators, and recipients of amusement
12 charges:
13 (A) Every insurer licensed to issue motor vehicle physical damage or
14 motor vehicle property damage liability insurance for motor vehicles
15 registered in this state if, during the period covered by the return, it
16 has paid consideration or an amount under an insurance contract for the
17 servicing or repair of a motor vehicle on behalf of an insured. For each
18 person to whom the insurer has paid the consideration or amount
19 described in the preceding sentence, the return must report the total
20 amount paid for that period, along with the other information required
21 by paragraph two of this subdivision.
22 (B) Every franchisor, as defined by section six hundred eighty-one of
23 the general business law, that has at least one franchisee, as defined
24 by subdivision four of section six hundred eighty-one of the general
25 business law, that is required to be registered under section eleven
26 hundred thirty-four of this part. For each franchisee, the return must
27 include the gross sales of the franchisee in this state reported by the
28 franchisee to the franchisor, the total amount of sales by the franchi-
29 sor to the franchisee, and any income reported to the franchisor by each
30 franchisee, along with the information required by paragraph two of this
31 subdivision.
32 (C) Every wholesaler, as defined by section three of the alcoholic
33 beverage control law, if it has made a sale of an alcoholic beverage, as
34 defined by section four hundred twenty of this chapter, without collect-
35 ing sales or use tax during the period covered by the return, except (i)
36 a sale to a person that has furnished an exempt organization certificate
37 to the wholesaler for that sale; or (ii) a sale to another wholesaler
38 whose license under the alcoholic beverage control law does not allow it
39 to make retail sales of the alcoholic beverage. For each vendor, opera-
40 tor, or recipient to whom the wholesaler has made a sale without
41 collecting sales or compensating use tax, the return must include the
42 total value of those sales made during the period covered by the return
43 (excepting the sales described in clauses (i) and (ii) of this subpara-
44 graph) and the vendor's, operator's or recipient's state liquor authori-
45 ty license number, along with the information required by paragraph two
46 of this subdivision.
47 (2) The returns required by paragraph one of this subdivision must
48 also include, for each vendor, operator, or recipient about whom infor-
49 mation is required to be reported under such paragraph, the name and
50 address, and the certificate of authority or federal identification
51 number, and any other information required by the commissioner. The
52 commissioner may, in the commissioner's discretion, require the report-
53 ing of less than all the information otherwise required to be reported
54 by this paragraph and paragraph one of this subdivision.
S. 60--A 247 A. 160--A
1 (3) The returns required by paragraph one of this subdivision must be
2 filed annually on or before March twentieth and must cover the four
3 sales tax quarterly periods immediately preceding such date. Notwith-
4 standing section three hundred five of the state technology law or any
5 other law to the contrary, the returns must be filed electronically in
6 the manner prescribed by the commissioner.
7 (4) Any person required to file a return under paragraph one of this
8 subdivision must, on or before March twentieth, give to each vendor,
9 operator, or recipient about whom information is required to be reported
10 in the return the information pertaining to that person. The commission-
11 er may prescribe a form to be used to provide the information required
12 to be given by this paragraph.
13 (5) Nothing in this subdivision is to be construed to limit the
14 persons from whom the commissioner can secure information or the infor-
15 mation the commissioner can require from those persons pursuant to the
16 commissioner's authority under section eleven hundred forty-three of
17 this part or any other provision of law.
18 § 2. Section 1145 of the tax law is amended by adding a new subdivi-
19 sion (i) to read as follows:
20 (i)(1) Every person required to file an information return by subdivi-
21 sion (i) of section eleven hundred thirty-six of this part who (A) fails
22 to provide any of the information required by paragraph one or two of
23 subdivision (i) of section eleven hundred thirty-six of this part for a
24 vendor, operator, or recipient, or who fails to include any such infor-
25 mation that is true and correct (whether or not such a report is filed)
26 for a vendor, operator, or recipient, or (B) fails to provide the infor-
27 mation required by paragraph four of subdivision (i) of section eleven
28 hundred thirty-six of this part to a vendor, operator, or recipient
29 specified in paragraph four of subdivision (i) of section eleven hundred
30 thirty-six of this part, will, in addition to any other penalty provided
31 in this article or otherwise imposed by law, be subject to a penalty of
32 five hundred dollars for ten or fewer failures, and up to fifty dollars
33 for each additional failure.
34 (2) Every person failing to file an information return required by
35 subdivision (i) of section eleven hundred thirty-six of this part within
36 the time required by subdivision (i) of section eleven hundred thirty-
37 six of this part will, in addition to any other penalty provided for in
38 this article or otherwise imposed by law, be subject to a penalty in an
39 amount not to exceed two thousand dollars for each such failure,
40 provided that the minimum penalty under this paragraph is five hundred
41 dollars.
42 (3) In no event will the penalty imposed by paragraph one, or the
43 aggregate of the penalties imposed under paragraphs one and two of this
44 subdivision, exceed ten thousand dollars for any annual filing period as
45 described by paragraph three of subdivision (i) of section eleven
46 hundred thirty-six of this part.
47 (4) If the commissioner determines that any of the failures that are
48 subject to penalty under this subdivision was entirely due to reasonable
49 cause and not due to willful neglect, the commissioner must remit the
50 penalty imposed under this subdivision. These penalties will be deter-
51 mined, assessed, collected, paid, disposed of and enforced in the same
52 manner as taxes imposed by this article and all the provisions of this
53 article relating thereto will be deemed also to refer to these penal-
54 ties.
55 § 3. This act shall take effect immediately, provided that the first
56 return required by subdivision (i) of section 1136 of the tax law, as
S. 60--A 248 A. 160--A
1 added by section one of this act, shall be due on or before September
2 20, 2009 and shall cover the period March 1, 2009 through August 31,
3 2009; provided, further, that the returns required to be filed by such
4 subdivision on or before March 20, 2010, shall cover the period from
5 September 1, 2009 to February 28, 2010.
6 SUBPART O
7 Section 1. Section 6 of the tax law is REPEALED and a new section 6 is
8 added to read as follows:
9 § 6. Filing of tax warrants and related records in the department of
10 state. (a) Definitions. As used in this section:
11 (1) "date of filing" means the date on which the department of state
12 enters the complete data received from the department regarding a
13 warrant or related record into the department of state database for tax
14 warrants and related records for filing;
15 (2) "electronic" has the same meaning given such term by subdivision
16 one of section three hundred two of the state technology law;
17 (3) "related records" means one or more of the following: satisfac-
18 tion-piece, vacatur of a warrant, amended warrant, release of lien, or
19 other document authorized by applicable law, related to a warrant, other
20 than a warrant;
21 (4) "related statute" means any law, ordinance or resolution enacted
22 pursuant to the authority of this chapter, the environmental conserva-
23 tion law, the racing, pari-mutuel wagering and breeding law, or any
24 other law, that imposes a tax;
25 (5) "tax" means any tax, special assessment, fee, addition to tax,
26 penalty, interest, or other imposition that is administered by the
27 commissioner, as well as child support and combined child and spousal
28 support arrears collected by the commissioner pursuant to the provisions
29 of section one hundred seventy one-i of this chapter; and
30 (6) "warrant" means a warrant issued by the commissioner to collect
31 any tax.
32 (b) Filing in the department of state. (1) Filing of tax warrants.
33 Notwithstanding any provision of this chapter or a related statute to
34 the contrary, all warrants must be filed by the department solely in the
35 department of state. No fee will be required to be paid for these
36 filings. On the date of filing of a warrant:
37 (1) the amount of the tax stated in the warrant will become a lien
38 upon the title to and interest in all real, personal or other property
39 located in the state, owned by the person or persons named in the
40 warrant. The lien so created will
41 (A) attach to all real property and rights to real property located in
42 the state that is owned by the person or persons named in the warrant at
43 any time during the period of the lien, including any real property or
44 rights to real property located in the state that is acquired by the
45 person or persons after the lien arises; and
46 (B) apply to all personal or other property and rights to personal or
47 other property located in the state that is owned by the person or
48 persons named in the warrant at any time during the period of the lien,
49 including any personal or other property or rights to personal or other
50 property located in the state that is acquired by the person or persons
51 after the lien arises.
52 (2) the commissioner will, in the right of the people of the state of
53 New York, be deemed to have obtained a judgment against the person or
S. 60--A 249 A. 160--A
1 persons named in the warrant for the amount of the tax stated in the
2 warrant.
3 (c) If the department filed a warrant in a county clerk's office
4 before October first, two thousand nine, then, as of October first, two
5 thousand nine and thereafter, the department will be deemed to have
6 filed that warrant in the county clerk's office in every other county of
7 the state, and the commissioner will be deemed to have obtained a judg-
8 ment in every other county of the state against the person or persons
9 named in that warrant for the amount of the tax stated in that warrant.
10 By October first, two thousand nine, the commissioner must provide
11 notice, in a form prescribed by the commissioner, to all persons
12 affected by this subdivision.
13 (d) Enforcement of a judgment obtained pursuant to the provisions of
14 subdivision (b) or (c) of this section will be as prescribed in article
15 fifty-two of the civil practice law and rules.
16 (e) Filing of related records. (1) Notwithstanding any provision of
17 this chapter or a related statute to the contrary, if the department is
18 filing any related record, the record must be filed solely in the
19 department of state; provided, however, that any related record filed on
20 or after October first, two thousand nine that pertains to a warrant
21 filed prior to October first, two thousand nine, must be filed in the
22 department of state.
23 (2) No fee will be required to be paid for the filings described in
24 paragraph one of this subdivision.
25 (f) Manner of filing with the department of state and public notice of
26 filings. The department must file warrants and related records electron-
27 ically with the department of state. The department of state will
28 provide acknowledgement to the department of the date of filing of the
29 warrants and related records. The department of state must also make
30 information regarding the warrants and related records, including the
31 date of filing, available to the public. This information must be
32 searchable electronically by the name of the person or persons listed in
33 the tax warrant. Warrant and related record information must be made
34 available to the public electronically.
35 § 2. Subdivision 1 of section 174-a of the tax law, as added by chap-
36 ter 176 of the laws of 1997, is amended to read as follows:
37 1. General rule. Notwithstanding any provision of law to the contrary,
38 the provisions of the civil practice law and rules relating to the dura-
39 tion of a lien of a docketed judgment in and upon real property of a
40 judgment debtor, and the extension of [any such] that lien, [shall] will
41 apply to any warrant filed on behalf of the commissioner against a
42 taxpayer with [the clerk of a county wherein such taxpayer owns or has
43 an interest in real property] any recording or filing officer, including
44 a county clerk or the department of state, whether [such] the warrant is
45 being enforced by a sheriff or an officer or employee of the department.
46 § 3. Section 279-b of the tax law is amended by adding a new closing
47 paragraph to read as follows:
48 Notwithstanding any provision of this section concerning the place of
49 filing of a tax warrant and the creation thereby of a tax lien and judg-
50 ment, the provisions of section six of this chapter will govern these
51 matters for purposes of the taxes imposed by this article.
52 § 4. Section 289 of the tax law is amended by adding a new closing
53 paragraph to read as follows:
54 Notwithstanding any provision of this section concerning the place of
55 filing of a tax warrant and the creation thereby of a tax lien and judg-
S. 60--A 250 A. 160--A
1 ment, the provisions of section six of this chapter will govern these
2 matters for purposes of the taxes imposed by this article.
3 § 5. Section 431 of the tax law is amended by adding a new subdivision
4 4 to read as follows:
5 4. Notwithstanding any provision of this section concerning the place
6 of filing of a tax warrant and the creation thereby of a tax lien and
7 judgment, the provisions of section six of this chapter will govern
8 these matters for purposes of the taxes imposed by this article.
9 § 6. Section 479 of the tax law is amended by adding a new closing
10 paragraph to read as follows:
11 Notwithstanding any provision of this section concerning the place of
12 filing of a tax warrant and the creation thereby of a tax lien and judg-
13 ment, the provisions of section six of this chapter will govern these
14 matters for purposes of the taxes imposed by this article.
15 § 7. Subdivisions 3, 4 and 5 of section 511 of the tax law are renum-
16 bered subdivisions 4, 5 and 6, and a new subdivision 3 is added to read
17 as follows:
18 3. Notwithstanding any provision of this section concerning the place
19 of filing of a tax warrant and the creation thereby of a tax lien and
20 judgment, the provisions of section six of this chapter will govern
21 these matters for purposes of the taxes imposed by this article.
22 § 8. Section 692 of the tax law is amended by adding a new subsection
23 (j) to read as follows:
24 (j) Notwithstanding any provision of this section concerning the place
25 of filing of a tax warrant and the creation thereby of a tax lien and
26 judgment, the provisions of section six of this chapter will govern
27 these matters for purposes of the taxes imposed by this article.
28 § 9. Subsection (j) of section 1092 of the tax law is relettered
29 subsection (k), and a new subsection (j) is added to read as follows:
30 (j) Notwithstanding any provision of this section concerning the place
31 of filing of a tax warrant and the creation thereby of a tax lien and
32 judgment, the provisions of section six of this chapter will govern
33 these matters for purposes of any tax to which this article applies.
34 § 10. Subdivision (c) of section 1141 of the tax law is relettered
35 subdivision (d), and a new subdivision (c) is added to read as follows:
36 (c) Notwithstanding any provision of this section concerning the place
37 of filing of a tax warrant and the creation thereby of a tax lien and
38 judgment, the provisions of section six of this chapter will govern
39 these matters for purposes of the taxes imposed by this article.
40 § 11. Section 1414 of the tax law is amended by adding a new subdivi-
41 sion (c) to read as follows:
42 (c) Notwithstanding any provision of this section concerning the place
43 of filing of a tax warrant and the creation thereby of a tax lien and
44 judgment, the provisions of section six of this chapter will govern
45 these matters for purposes of the taxes imposed by this article.
46 § 12. This act shall take effect October 1, 2009; provided, however,
47 that:
48 (a) effective immediately, the department of taxation and finance and
49 the department of state are authorized to take any steps necessary to
50 implement the provisions of this act on its effective date on or before
51 such date; and
52 (b) the provisions of this act shall apply to warrants and related
53 records pertaining to those warrants filed, or deemed to have been
54 filed, on or after October 1, 2009.
55 SUBPART P
S. 60--A 251 A. 160--A
1 Section 1. Subdivision (c) of section 1141 of the tax law, as amended
2 by chapter 27 of the laws of 1977, the third undesignated paragraph as
3 added by chapter 706 of the laws of 1980, is amended to read as follows:
4 (c) Whenever a person required to collect tax shall make a sale,
5 transfer, or assignment in bulk of any part or the whole of his or her
6 business assets, otherwise than in the ordinary course of business, the
7 purchaser, transferee or assignee shall at least ten days before taking
8 possession of the subject of said sale, transfer or assignment, or
9 paying therefor, notify the [tax commission] commissioner by registered
10 mail of the proposed sale and of the price, terms and conditions thereof
11 whether or not the seller, transferrer or assignor, has represented to,
12 or informed the purchaser, transferee or assignee that he or she owes
13 any tax, penalty, or interest pursuant to this article, and whether or
14 not the purchaser, transferee, or assignee has knowledge that such
15 taxes, penalty, or interest are owing, and whether any such taxes,
16 penalty, or interest are in fact owing.
17 Whenever the purchaser, transferee or assignee shall fail to give
18 notice to the [tax commission] commissioner as required by the preceding
19 paragraph, or whenever the [tax commission] commissioner shall inform
20 the purchaser, transferee or assignee that a possible claim for such tax
21 or taxes, penalty, or interest exists, any sums of money, property or
22 choses in action, or other consideration, which the purchaser, transfer-
23 ee or assignee is required to transfer over to the seller, transferrer
24 or assignor shall be subject to a first priority right and lien for any
25 such taxes, penalty, or interest theretofore or thereafter determined to
26 be due from the seller, transferrer or assignor to the state, and the
27 purchaser, transferee or assignee is forbidden to transfer to the sell-
28 er, transferrer or assignor any such sums of money, property or choses
29 in action to the extent of the amount of the state's claim. Within nine-
30 ty days of receipt of the notice of the sale, transfer, or assignment
31 from the purchaser, transferee or assignee, the [tax commission] commis-
32 sioner shall give notice to the purchaser, transferee or assignee and to
33 the seller, transferrer, or assignor of the total amount of any tax or
34 taxes, penalty, or interest which the state claims to be due from the
35 seller, transferrer, or assignor to the state, and whenever the [tax
36 commission] commissioner shall fail to give such notice to the purchas-
37 er, transferee, or assignee and the seller, transferrer, or assignor
38 within ninety days from receipt of notice of the sale, transfer, or
39 assignment, such failure will release the purchaser, transferee or
40 assignee from any further obligation to withhold any sums of money,
41 property or choses in action, or other consideration, which the purchas-
42 er, transferee or assignee is required to transfer over to the seller,
43 transferrer or assignor[, except that with respect to pending matters
44 such ninety day periods shall not begin to run until ninety days after
45 the effective date of this provision]. For failure to comply with the
46 provisions of this subdivision the purchaser, transferee or assignee[,
47 in addition to being subject to the liabilities and remedies imposed
48 under the provisions of article six of the uniform commercial code,]
49 shall be personally liable for the payment to the state of any such
50 taxes, penalty, or interest theretofore or thereafter determined to be
51 due to the state from the seller, transferrer or assignor, except that
52 the liability of the purchaser, transferee or assignee shall be limited
53 to an amount not in excess of the purchase price or fair market value of
54 the business assets sold, transferred or assigned to such purchaser,
55 transferee, or assignee, whichever is higher, and such liability may be
56 assessed and enforced in the same manner as the liability for tax under
S. 60--A 252 A. 160--A
1 this article. Upon receipt within the ninety days as aforesaid of the
2 notice of the total amount of the state's claim from the [tax commis-
3 sion] commissioner, and demand for payment thereof, the purchaser,
4 transferee or assignee may make payment of such claim to the state from
5 any sums of money, property, or choses in action withheld in accord with
6 the provisions of this paragraph, except that such payment shall be
7 limited to an amount not in excess of the purchase price or fair market
8 value of the business assets sold, transferred, or assigned to such
9 purchaser, transferee, or assignee, whichever is higher, and upon making
10 the payment, such purchaser, transferee, or assignee shall be relieved
11 of all liability for such amounts to the seller, transferrer, or assig-
12 nor, and such amounts paid to the state shall be deemed satisfaction of
13 the tax liability of the seller, transferrer, or assignor to the extent
14 of the amount of such payment. Any reference in any provision of law to
15 the liability of a purchaser, transferee, or assignee for tax under this
16 subdivision shall include the liability of the purchaser, transferee or
17 assignee for penalty or interest under this subdivision.
18 Where the liability of a purchaser, transferee or assignee, for the
19 payment to the state of any such taxes, penalty, or interest determined
20 to be due from the seller, transferrer or assignor, has been wholly paid
21 or satisfied or no longer exists, the [tax commission] commissioner
22 shall mail to such purchaser, transferee or assignee a notice, addressed
23 to his last known address, setting forth that such liability has been
24 wholly paid or satisfied or no longer exists. The [tax commission]
25 commissioner shall include in such notice the following additional
26 information:
27 (1) the name and last known address of the purchaser, transferee or
28 assignee;
29 (2) the amount of the lien paid, satisfied or vacated; and
30 (3) a statement to the effect that consumer reporting agencies must
31 delete from a credit file any reference to the particular tax lien with-
32 in thirty days of receipt from the purchaser, transferee or assignee of
33 such notice. Provided, however, no order or decree in a bankruptcy
34 proceeding shall be construed as giving rise to the requirement that the
35 notice provided for in this paragraph be given.
36 § 2. This act shall take effect June 1, 2009 and shall apply to sales,
37 transfers, or assignments in bulk occurring on or after that date.
38 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
39 sion, section or part of this act shall be adjudged by any court of
40 competent jurisdiction to be invalid, such judgment shall not affect,
41 impair, or invalidate the remainder thereof, but shall be confined in
42 its operation to the clause, sentence, paragraph, subdivision, section
43 or part thereof directly involved in the controversy in which such judg-
44 ment shall have been rendered. It is hereby declared to be the intent of
45 the legislature that this act would have been enacted even if such
46 invalid provisions had not been included herein.
47 § 3. This act shall take effect immediately provided, however, that
48 the applicable effective date of Subparts A through P of this act shall
49 be as specifically set forth in the last section of such Subparts.
50 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
51 sion, section or part of this act shall be adjudged by any court of
52 competent jurisdiction to be invalid, such judgment shall not affect,
53 impair, or invalidate the remainder thereof, but shall be confined in
54 its operation to the clause, sentence, paragraph, subdivision, section
55 or part thereof directly involved in the controversy in which such judg-
56 ment shall have been rendered. It is hereby declared to be the intent of
S. 60--A 253 A. 160--A
1 the legislature that this act would have been enacted even if such
2 invalid provisions had not been included herein.
3 § 3. This act shall take effect immediately provided, however, that
4 the applicable effective date of Parts A through SS of this act shall be
5 as specifically set forth in the last section of such Parts.
