STATE OF NEW YORK
________________________________________________________________________
5577
2017-2018 Regular Sessions
IN ASSEMBLY
February 10, 2017
___________
Introduced by M. of A. FARRELL -- read once and referred to the Commit-
tee on Ways and Means
AN ACT to amend the tax law, in relation to enacting the multichannel
video programming distributor competition act
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The tax law is amended by adding a new section 186-g to
2 read as follows:
3 § 186-g. Excise tax on direct broadcast satellite services. 1. Defi-
4 nitions. As used in this section, where not otherwise specifically
5 defined and unless a different meaning is clearly required:
6 (a) "Commissioner", means the commissioner of taxation and finance.
7 (b) "Direct broadcast satellite service", means the distribution or
8 broadcasting by satellite of video programming or services directly to
9 receiving equipment located at an end user subscriber's or an end user
10 customer's premises, including, but not limited to, the provision of
11 premium channels, the provision of music or other audio services or
12 channels, and any other service received in connection with the
13 provision of direct broadcast satellite service.
14 (c) "Direct broadcast satellite service provider", means a person who
15 transmits, broadcasts or otherwise provides direct broadcast satellite
16 service to subscribers or customers in the state.
17 (d) "Gross receipts", means all consideration of any kind or nature
18 received by a direct broadcast satellite service provider, or an affil-
19 iate of such person, in connection with the provision of direct broad-
20 cast satellite service to subscribers or customers, including recurring
21 monthly charges for direct broadcast satellite service and pay-per-view,
22 video-on-demand and other event-based charges for direct broadcast
23 satellite service; provided, however, that gross receipts shall not
24 include:
25 (1) charges for the rental of equipment related to the provision of
26 direct broadcast satellite service;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06669-01-7
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1 (2) activation, installation, repair and maintenance charges or simi-
2 lar service charges related to the provision of direct broadcast satel-
3 lite service;
4 (3) service order charges, service termination charges or any other
5 administrative charges related to the provision of direct broadcast
6 satellite service;
7 (4) revenue not actually received, regardless of whether it is billed,
8 including, but not limited to, bad debts;
9 (5) revenue received by an affiliate or other person in exchange for
10 supplying goods and services used by a direct broadcast satellite
11 service provider;
12 (6) refunds, rebates or discounts made to subscribers or customers, to
13 advertisers or to other persons;
14 (7) revenue from telecommunications service as defined in 47 U.S.C.
15 section 153(46);
16 (8) revenue from information services as defined in 47 U.S.C. section
17 153(20);
18 (9) revenue from any service that is subject to tax under article
19 twenty-eight of this chapter;
20 (10) revenue from the sale of capital assets or surplus equipment not
21 used by the purchaser to receive direct broadcast satellite service from
22 the direct broadcast satellite service provider;
23 (11) reimbursements made by programmers to the direct broadcast satel-
24 lite service provider for marketing costs incurred by the direct broad-
25 cast satellite service provider for the introduction of new programming
26 that exceed the actual costs incurred by the direct broadcast satellite
27 service provider;
28 (12) late payment fees collected from subscribers or customers; or
29 (13) charges, other than those charges specifically described herein,
30 that are aggregated or bundled with such specifically-described charges
31 on a subscriber or customer's bill, if the direct broadcast satellite
32 service provider can reasonably identify the charges in its books and
33 records kept in the regular course of business.
34 (e) "Person", means an individual, partnership, limited liability
35 company, trust or association, with or without transferable shares,
36 joint-stock company, corporation, society, club, organization, institu-
37 tion, estate, receiver, trustee, assignee or referee and any other
38 person acting in a fiduciary or representative capacity, whether
39 appointed by a court or otherwise, and any combination of individuals
40 acting as a unit.
41 (f) "Subscriber or customer", means any person or member of the gener-
42 al public who receives direct broadcast satellite service from a direct
43 broadcast satellite service provider and does not further distribute
44 such service in the ordinary course of business.
45 (g) "Video programming", means programming provided by, or comparable
46 to programming provided by, a television broadcast station including,
47 but not limited to, video programming provided by local networks,
48 national broadcast networks, cable networks and all forms of pay-per-
49 view video entertainment.
50 2. Excise imposed. An excise is hereby imposed upon the provision of
51 direct broadcast satellite service to a subscriber or customer by any
52 direct broadcast satellite service provider in an amount equal to 5 per
53 cent of the direct broadcast satellite service provider's gross revenues
54 derived from or attributable to such customer or subscriber.
55 3. Reimbursement. Reimbursement for the excise imposed in this section
56 shall be paid by the subscriber or customer to the direct broadcast
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1 satellite service provider and each direct broadcast satellite service
2 provider providing direct broadcast satellite service to subscribers or
3 customers shall collect from such subscriber or customer the full amount
4 of the excise imposed with respect to gross revenues derived from or
5 attributable to such customer or subscriber and such excise shall be a
6 debt from the subscriber or customer to the direct broadcast satellite
7 service provider when added to the subscriber or customer's invoice for
8 video programming service and shall be recoverable at law in the same
9 manner as other debts.
10 4. Certificate of registration. Every direct broadcast satellite
11 service provider subject to the tax imposed by this section shall file
12 with the commissioner a certificate of registration, in a form
13 prescribed by the commissioner, at least twenty days prior to commencing
14 business or opening a new place of business, such selling or taking of
15 possession or payment derived from direct broadcast satellite service,
16 or the effective date of this section, whichever comes first. The
17 commissioner shall furnish to each direct broadcast satellite service
18 provider general information about the tax imposed under this section
19 including information on records to be kept, returns and payments,
20 notification requirements and forms. Such certificate of registration
21 may be amended in accordance with rules promulgated by the commissioner.
22 5. Returns. Every provider of direct broadcast satellite services
23 subject to tax under this section shall file, on or before March
24 fifteenth of each year, a return for the year ended on the preceding
25 December thirty-first, and pay the tax due, which return shall state the
26 gross receipts for the period covered by each such return and the resale
27 exclusions during such period. Returns shall be filed with the commis-
28 sioner on a form to be furnished by the commissioner for such purpose
29 and shall contain such other data, information or matter as the commis-
30 sioner may require to be included therein. Notwithstanding the foregoing
31 provisions of this subdivision, the commissioner may require any provid-
32 er of direct broadcast satellite services to file an annual return,
33 which shall contain any data specified by the commissioner, regardless
34 of whether such provider is subject to tax under this section. Every
35 return shall have annexed thereto a certification by the head of the
36 provider of telecommunication services making the same, or of the owner
37 or of a partner or member thereof, or of a principal officer of the
38 corporation, if such business be conducted by a corporation, to the
39 effect that the statements contained therein are true.
40 6. Applicability. If any provision of this section conflicts with any
41 other provision contained in this article, the provision of this section
42 shall control, but the provisions of this article which do not conflict
43 with the provisions of this section shall apply with respect to the
44 taxes under this section, so far as they are, or may be made applicable.
45 7. Liability. A direct broadcast satellite service provider who fails
46 to pay the commissioner any sums required to be paid by this section
47 shall be personally and individually liable therefor to the state. The
48 term "direct broadcast satellite service provider", as used in this
49 section, includes an officer or employee of a corporation or other busi-
50 ness entity or a member or employee of a partnership who, as such offi-
51 cer, employee or member, is under a duty to pay over the taxes imposed
52 by this section.
53 § 2. This act shall take effect immediately and shall apply to all tax
54 years commencing on or after the first of January next succeeding the
55 date on which it shall have become a law.
