Relates to excise tax on telecommunication services (Part A); relates to temporary municipal assistance sales and compensating use taxes for cities of one million or more on telecommunication services (Part B).
STATE OF NEW YORK
________________________________________________________________________
5683
2017-2018 Regular Sessions
IN ASSEMBLY
February 14, 2017
___________
Introduced by M. of A. KOLB, OAKS, LUPINACCI, MONTESANO, RAIA, GRAF,
BLANKENBUSH, McLAUGHLIN, GIGLIO, DiPIETRO -- Multi-Sponsored by -- M.
of A. CROUCH, HAWLEY -- read once and referred to the Committee on
Ways and Means
AN ACT to amend the tax law, in relation to excise tax on telecommuni-
cations services (Part A); and to amend the tax law, in relation to
temporary municipal assistance sales and compensating use taxes for
cities of one million or more on telecommunications services (Part B)
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 components of legislation relating
2 to the "mobile tax freedom act". Each component is wholly contained
3 within a Part identified as Parts A through B. The effective date for
4 each particular provision contained within such Part is set forth in the
5 last section of such Part. Any provision in any section contained within
6 a Part, including the effective date of the Part, which makes a refer-
7 ence to a section "of this act", when used in connection with that
8 particular component, shall be deemed to mean and refer to the corre-
9 sponding section of the Part in which it is found. Section three of this
10 act sets forth the general effective date of this act.
11 PART A
12 Section 1. Subdivision (cc) of section 1115 of the tax law, as added
13 by section 11 of part S of chapter 85 of the laws of 2002, is amended to
14 read as follows:
15 (cc) Notwithstanding any other provision of law to the contrary,
16 receipts from the sale of mobile telecommunications service [by a home
17 service provider] shall be exempt from the taxes imposed by subparagraph
18 (B) of paragraph one and paragraph two of subdivision (b) of section
19 eleven hundred five of this article [if the mobile telecommunications
20 customer's place of primary use is within a taxing jurisdiction outside
21 this state].
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03459-01-7
A. 5683 2
1 § 2. Paragraphs (a) and (h) of subdivision 1 and paragraph (a) of
2 subdivision 2 of section 186-e of the tax law, paragraph (a) of subdivi-
3 sion 1 as amended by section 2 and paragraph (h) of subdivision 1 as
4 added by section 3 of part S of chapter 85 of the laws of 2002, and
5 paragraph (a) of subdivision 2 as amended by section 2 of part P of
6 chapter 59 of the laws of 2015, are amended to read as follows:
7 (a) [(1)] "Gross receipt" means the amount received in or by reason of
8 any sale, conditional or otherwise, of telecommunication services or in
9 or by reason of the furnishing of telecommunication services. [Gross
10 receipt from the sale of mobile telecommunications service provided by a
11 home service provider shall include "charges for mobile telecommuni-
12 cations service" as described in paragraph one of subdivision (l) of
13 section eleven hundred eleven of this chapter, regardless of where the
14 mobile telecommunications service originates, terminates or passes
15 through.] Gross receipt is expressed in money, whether paid in cash,
16 credit or property of any kind or nature, and shall be determined with-
17 out any deduction therefrom on account of the cost of the service sold
18 or the cost of materials, labor or services used or other costs, inter-
19 est or discount paid, or any other expenses whatsoever except that there
20 shall, however, be allowed a deduction for bad debts with respect to
21 charges previously subjected to the tax hereunder when the debt has
22 become worthless in accordance with generally accepted accounting prin-
23 ciples consistently applied by the taxpayer. "Amount received" for the
24 purpose of the definition of gross receipt, as the term gross receipt is
25 used throughout this article, means the amount charged for the provision
26 of a telecommunication service.
27 [(2) (A) Any charge for a service or property billed by or for a
28 mobile telecommunications customer's home service provider shall be
29 deemed to be provided by such mobile telecommunications customer's home
30 service provider.
31 (B) Charges for mobile telecommunications service that are provided or
32 deemed to be provided by a mobile telecommunications customer's home
33 service provider shall be sourced to the taxing jurisdiction where the
34 mobile telecommunications customer's place of primary use is located,
35 regardless of where the mobile telecommunications service originates,
36 terminates or passes through.]
37 [(h) For the purpose of applying the provisions of this section to
38 mobile telecommunications service, the following terms when used in
39 relation to mobile telecommunications service shall be defined as such
40 terms are defined in section eleven hundred one of this chapter: "mobile
41 telecommunications service," "mobile telecommunications customer," "home
42 service provider," "licensed service area," "reseller," "serving carri-
43 er," "place of primary use" and "taxing jurisdiction".]
44 (a) [(1)] There is hereby imposed an excise tax on the sale of tele-
45 communication services[, except for the sale of mobile telecommunication
46 services that are subject to tax under subparagraph two of this para-
47 graph, by any person which is a provider of telecommunication services,]
48 to be paid by such person, at the rate of three and one-half percent
49 prior to October first, nineteen hundred ninety-eight, three and one-
50 quarter percent from October first, nineteen hundred ninety-eight
51 through December thirty-first, nineteen hundred ninety-nine, and two and
52 one-half percent on and after January first, two thousand of gross
53 receipt from: (i) any intrastate telecommunication services; (ii) any
54 interstate and international telecommunication services (other than
55 interstate and international private telecommunication services) which
56 originate or terminate in this state and which telecommunication
A. 5683 3
1 services are charged to a service address in this state, regardless of
2 where the amounts charged for such services are billed or ultimately
3 paid; and (iii) interstate and international private telecommunication
4 services, the gross receipt to which the tax shall apply shall be deter-
5 mined as prescribed in subdivision three of this section.
6 [(2) There is hereby imposed an excise tax on the sale of mobile tele-
7 communication services, by any person which is a provider of telecommu-
8 nication services, to be paid by such person, at the rate of two and
9 nine-tenths percent on and after May first, two thousand fifteen of
10 gross receipts from any mobile telecommunications service provided by a
11 home service provider where the mobile telecommunications customer's
12 place of primary use is within this state.]
13 § 3. Paragraph (b) of subdivision 2 of section 186-e of the tax law is
14 amended by adding a new subparagraph 5 to read as follows:
15 (5) Mobile telecommunications exclusion. The sale of mobile telecommu-
16 nication service shall in no event constitute a telecommunications
17 service, and the receipts from the sale of such service are without the
18 scope of the tax imposed by this section.
19 § 4. Paragraph (b) of subdivision 1 of section 186-c of the tax law,
20 as amended by section 1 of part P of chapter 59 of the laws of 2015, is
21 amended to read as follows:
22 (b) [(1)] In addition to the surcharge imposed by paragraph (a) of
23 this subdivision, there is hereby imposed a surcharge on the gross
24 receipts from telecommunication services[, except for the gross receipts
25 from mobile telecommunication services that are subject to tax under
26 subparagraph two of this paragraph,] relating to the metropolitan commu-
27 ter transportation district at the rate of seventeen percent of the
28 state tax rate under section one hundred eighty-six-e of this article.
29 All the definitions and other provisions of section one hundred eighty-
30 six-e of this article shall apply to the tax imposed by this subpara-
31 graph with such modification and limitation as may be necessary (includ-
32 ing substituting the words "metropolitan commuter transportation
33 district" for "state" where appropriate) in order to adapt the language
34 of such section one hundred eighty-six-e of this article to the
35 surcharge imposed by this subparagraph within such metropolitan commuter
36 transportation district so as to include (i) any intra-district telecom-
37 munication services, (ii) any inter-district telecommunication services
38 which originate or terminate in such district and are charged to a
39 service address therein regardless of where the amounts charged for such
40 services are billed or ultimately paid, and (iii) as apportioned to such
41 district, private telecommunication services. Provided however, such tax
42 surcharge shall be calculated as if the tax imposed under section one
43 hundred eighty-six-e of this article were imposed at a rate of three and
44 one-half percent.
45 [(2) In addition to the surcharge imposed by paragraph (a) of this
46 subdivision, there is hereby imposed a surcharge on the gross receipts
47 from mobile telecommunication services relating to the metropolitan
48 commuter transportation district at the rate of seven-tenths and two-
49 hundredths and one-thousandth percent on and after May first, two thou-
50 sand fifteen. All the definitions and other provisions of section one
51 hundred eighty-six-e of this article shall apply to the tax imposed by
52 this subparagraph with such modification and limitation as may be neces-
53 sary (including substituting the words "metropolitan commuter transpor-
54 tation district" for "state" where appropriate) in order to adapt the
55 language of such section one hundred eighty-six-e of this article to the
56 surcharge imposed by this subparagraph within such metropolitan commuter
A. 5683 4
1 transportation district so as to include any mobile telecommunications
2 service provided by a home service provider where the mobile telecommu-
3 nications customer's place of primary use is within such metropolitan
4 commuter transportation district.]
5 § 5. This act shall take effect on the first day of the sales tax
6 quarterly period, as described in subdivision (b) of section 1136 of the
7 tax law, beginning at least ninety days after the date this act shall
8 have become a law and shall apply in accordance with the applicable
9 transitional provisions of sections 1106 and 1217 of the tax law.
10 PART B
11 Section 1. Subdivision (b) of section 1107 of the tax law is amended
12 by adding a new clause 12 to read as follows:
13 (12) Except as otherwise provided by law, the exemption provided in
14 subdivision (cc) of section eleven hundred fifteen of this article
15 relating to mobile telecommunication services shall be applicable pursu-
16 ant to a local law, ordinance or resolution adopted by a city subject to
17 the provisions of this section. Such city is empowered to adopt or
18 repeal such a local law, ordinance or resolution. Such adoption or
19 repeal shall also be deemed to amend any local law, ordinance or resol-
20 ution enacted by such a city imposing taxes pursuant to the authority of
21 subdivision (a) of section twelve hundred ten of this chapter.
22 § 2. Paragraph 1 of subdivision (a) of section 1210 of the tax law, as
23 amended by section 2 of part WW of chapter 60 of the laws of 2016, is
24 amended to read as follows:
25 (1) Either, all of the taxes described in article twenty-eight of this
26 chapter, at the same uniform rate, as to which taxes all provisions of
27 the local laws, ordinances or resolutions imposing such taxes shall be
28 identical, except as to rate and except as otherwise provided, with the
29 corresponding provisions in such article twenty-eight, including the
30 definition and exemption provisions of such article, so far as the
31 provisions of such article twenty-eight can be made applicable to the
32 taxes imposed by such city or county and with such limitations and
33 special provisions as are set forth in this article. The taxes author-
34 ized under this subdivision may not be imposed by a city or county
35 unless the local law, ordinance or resolution imposes such taxes so as
36 to include all portions and all types of receipts, charges or rents,
37 subject to state tax under sections eleven hundred five and eleven
38 hundred ten of this chapter, except as otherwise provided. (i) Any local
39 law, ordinance or resolution enacted by any city of less than one
40 million or by any county or school district, imposing the taxes author-
41 ized by this subdivision, shall, notwithstanding any provision of law to
42 the contrary, exclude from the operation of such local taxes all sales
43 of tangible personal property for use or consumption directly and
44 predominantly in the production of tangible personal property, gas,
45 electricity, refrigeration or steam, for sale, by manufacturing, proc-
46 essing, generating, assembly, refining, mining or extracting; and all
47 sales of tangible personal property for use or consumption predominantly
48 either in the production of tangible personal property, for sale, by
49 farming or in a commercial horse boarding operation, or in both; and,
50 unless such city, county or school district elects otherwise, shall omit
51 the provision for credit or refund contained in clause six of subdivi-
52 sion (a) or subdivision (d) of section eleven hundred nineteen of this
53 chapter. (ii) Any local law, ordinance or resolution enacted by any
54 city, county or school district, imposing the taxes authorized by this
A. 5683 5
1 subdivision, shall omit the residential solar energy systems equipment
2 and electricity exemption provided for in subdivision (ee), the commer-
3 cial solar energy systems equipment and electricity exemption provided
4 for in subdivision (ii), the commercial fuel cell electricity generating
5 systems equipment and electricity generated by such equipment exemption
6 provided for in subdivision (kk) and the clothing and footwear exemption
7 provided for in paragraph thirty of subdivision (a) of section eleven
8 hundred fifteen of this chapter, unless such city, county or school
9 district elects otherwise as to such residential solar energy systems
10 equipment and electricity exemption, such commercial solar energy
11 systems equipment and electricity exemption, commercial fuel cell elec-
12 tricity generating systems equipment and electricity generated by such
13 equipment exemption or such clothing and footwear exemption. Any local
14 law, ordinance or resolution enacted by any city, county or school
15 district, imposing the taxes authorized by this subdivision, shall omit
16 the mobile telecommunication services exemption provided for in subdivi-
17 sion (cc) of section eleven hundred fifteen of this chapter, unless such
18 city, county or school district elects otherwise; provided that if such
19 a city having a population of one million or more enacts the resolution
20 described in subdivision (p) of this section or repeals such resolution,
21 such resolution or repeal shall also be deemed to amend any local law,
22 ordinance or resolution enacted by such a city imposing such taxes
23 pursuant to the authority of this subdivision, whether or not such taxes
24 are suspended at the time such city enacts its resolution pursuant to
25 subdivision (p) of this section or at the time of such repeal; provided,
26 further, that any such local law, ordinance or resolution and section
27 eleven hundred seven of this chapter, as deemed to be amended in the
28 event a city of one million or more enacts a resolution pursuant to the
29 authority of subdivision (p) of this section, shall be further amended,
30 as provided in section twelve hundred eighteen of this subpart, so that
31 the wireless telecommunications services exemption in any such local
32 law, ordinance or resolution or in such section eleven hundred seven of
33 this chapter is the same as the mobile telecommunication services
34 exemption in subdivision (cc) of section eleven hundred fifteen of this
35 chapter. (iii) Any local law, ordinance or resolution enacted by any
36 city, county or school district, imposing the taxes authorized by this
37 subdivision, shall omit the residential solar energy systems equipment
38 and electricity exemption provided for in subdivision (ee), the commer-
39 cial solar energy systems equipment and electricity exemption provided
40 for in subdivision (ii) and the clothing and footwear exemption provided
41 for in paragraph thirty of subdivision (a) of section eleven hundred
42 fifteen of this chapter, unless such city, county or school district
43 elects otherwise as to either such residential solar energy systems
44 equipment and electricity exemption, such commercial solar energy
45 systems equipment and electricity exemption or such clothing and foot-
46 wear exemption.
47 § 3. Paragraph 1 of subdivision (a) of section 1210 of the tax law, as
48 amended by section 2 of part WW of chapter 60 of the laws of 2016 and
49 subparagraph (i) as separately amended by section 5 of part Z of chapter
50 60 of the laws of 2016, is amended to read as follows:
51 (1) Either, all of the taxes described in article twenty-eight of this
52 chapter, at the same uniform rate, as to which taxes all provisions of
53 the local laws, ordinances or resolutions imposing such taxes shall be
54 identical, except as to rate and except as otherwise provided, with the
55 corresponding provisions in such article twenty-eight, including the
56 definition and exemption provisions of such article, so far as the
A. 5683 6
1 provisions of such article twenty-eight can be made applicable to the
2 taxes imposed by such city or county and with such limitations and
3 special provisions as are set forth in this article. The taxes author-
4 ized under this subdivision may not be imposed by a city or county
5 unless the local law, ordinance or resolution imposes such taxes so as
6 to include all portions and all types of receipts, charges or rents,
7 subject to state tax under sections eleven hundred five and eleven
8 hundred ten of this chapter, except as otherwise provided. (i) Any
9 local law, ordinance or resolution enacted by any city of less than one
10 million or by any county or school district, imposing the taxes author-
11 ized by this subdivision, shall, notwithstanding any provision of law to
12 the contrary, exclude from the operation of such local taxes all sales
13 of tangible personal property for use or consumption directly and
14 predominantly in the production of tangible personal property, gas,
15 electricity, refrigeration or steam, for sale, by manufacturing, proc-
16 essing, generating, assembly, refining, mining or extracting; and all
17 sales of tangible personal property for use or consumption predominantly
18 either in the production of tangible personal property, for sale, by
19 farming or in a commercial horse boarding operation, or in both; and all
20 sales of fuel sold for use in commercial aircraft and general aviation
21 aircraft; and, unless such city, county or school district elects other-
22 wise, shall omit the provision for credit or refund contained in clause
23 six of subdivision (a) or subdivision (d) of section eleven hundred
24 nineteen of this chapter. (ii) Any local law, ordinance or resolution
25 enacted by any city, county or school district, imposing the taxes
26 authorized by this subdivision, shall omit the residential solar energy
27 systems equipment and electricity exemption provided for in subdivision
28 (ee), the commercial solar energy systems equipment and electricity
29 exemption provided for in subdivision (ii), the commercial fuel cell
30 electricity generating systems equipment and electricity generated by
31 such equipment exemption provided for in subdivision (kk) and the cloth-
32 ing and footwear exemption provided for in paragraph thirty of subdivi-
33 sion (a) of section eleven hundred fifteen of this chapter, unless such
34 city, county or school district elects otherwise as to such residential
35 solar energy systems equipment and electricity exemption, such commer-
36 cial solar energy systems equipment and electricity exemption, commer-
37 cial fuel cell electricity generating systems equipment and electricity
38 generated by such equipment exemption or such clothing and footwear
39 exemption. Any local law, ordinance or resolution enacted by any city,
40 county or school district, imposing the taxes authorized by this subdi-
41 vision, shall omit the mobile telecommunication services exemption
42 provided for in subdivision (cc) of section eleven hundred fifteen of
43 this chapter, unless such city, county or school district elects other-
44 wise; provided that if such a city having a population of one million or
45 more enacts the resolution described in subdivision (p) of this section
46 or repeals such resolution, such resolution or repeal shall also be
47 deemed to amend any local law, ordinance or resolution enacted by such a
48 city imposing such taxes pursuant to the authority of this subdivision,
49 whether or not such taxes are suspended at the time such city enacts its
50 resolution pursuant to subdivision (p) of this section or at the time of
51 such repeal; provided, further, that any such local law, ordinance or
52 resolution and section eleven hundred seven of this chapter, as deemed
53 to be amended in the event a city of one million or more enacts a resol-
54 ution pursuant to the authority of subdivision (p) of this section,
55 shall be further amended, as provided in section twelve hundred eighteen
56 of this subpart, so that the wireless telecommunications services
A. 5683 7
1 exemption in any such local law, ordinance or resolution or in such
2 section eleven hundred seven of this chapter is the same as the mobile
3 telecommunication services exemption in subdivision (cc) of section
4 eleven hundred fifteen of this chapter. (iii) Any local law, ordinance
5 or resolution enacted by any city, county or school district, imposing
6 the taxes authorized by this subdivision, shall omit the residential
7 solar energy systems equipment and electricity exemption provided for in
8 subdivision (ee), the commercial solar energy systems equipment and
9 electricity exemption provided for in subdivision (ii) and the clothing
10 and footwear exemption provided for in paragraph thirty of subdivision
11 (a) of section eleven hundred fifteen of this chapter, unless such city,
12 county or school district elects otherwise as to either such residential
13 solar energy systems equipment and electricity exemption, such commer-
14 cial solar energy systems equipment and electricity exemption or such
15 clothing and footwear exemption.
16 § 4. Subdivision (d) of section 1210 of the tax law, as amended by
17 section 4 of part WW of chapter 60 of the laws of 2016, is amended to
18 read as follows:
19 (d) A local law, ordinance or resolution imposing any tax pursuant to
20 this section, increasing or decreasing the rate of such tax, repealing
21 or suspending such tax, exempting from such tax the energy sources and
22 services described in paragraph three of subdivision (a) or of subdivi-
23 sion (b) of this section or changing the rate of tax imposed on such
24 energy sources and services or providing for the credit or refund
25 described in clause six of subdivision (a) of section eleven hundred
26 nineteen of this chapter, or electing or repealing the exemption for
27 residential solar equipment and electricity in subdivision (ee) of
28 section eleven hundred fifteen of this [article] chapter, or the
29 exemption for commercial solar equipment and electricity in subdivision
30 (ii) of section eleven hundred fifteen of this [article] chapter, or
31 electing or repealing the exemption for commercial fuel cell electricity
32 generating systems equipment and electricity generated by such equipment
33 in subdivision (kk) of section eleven hundred fifteen of this article
34 must go into effect only on one of the following dates: March first,
35 June first, September first or December first; provided, that a local
36 law, ordinance or resolution providing for the exemption described in
37 paragraph thirty of subdivision (a) of section eleven hundred fifteen of
38 this chapter or repealing any such exemption or a local law, ordinance
39 or resolution providing for a refund or credit described in subdivision
40 (d) of section eleven hundred nineteen of this chapter or repealing such
41 provision so provided must go into effect only on March first; provided,
42 further, that a local law, ordinance or resolution providing for the
43 exemption described in subdivision (cc) of section eleven hundred
44 fifteen of this chapter or repealing any such exemption so provided and
45 a resolution enacted pursuant to the authority of subdivision (p) of
46 this section providing such exemption or repealing such exemption so
47 provided may go into effect immediately. No such local law, ordinance
48 or resolution shall be effective unless a certified copy of such law,
49 ordinance or resolution is mailed by registered or certified mail to the
50 commissioner at the commissioner's office in Albany at least ninety days
51 prior to the date it is to become effective. However, the commissioner
52 may waive and reduce such ninety-day minimum notice requirement to a
53 mailing of such certified copy by registered or certified mail within a
54 period of not less than thirty days prior to such effective date if the
55 commissioner deems such action to be consistent with the commissioner's
56 duties under section twelve hundred fifty of this article and the
A. 5683 8
1 commissioner acts by resolution. Where the restriction provided for in
2 section twelve hundred twenty-three of this article as to the effective
3 date of a tax and the notice requirement provided for therein are appli-
4 cable and have not been waived, the restriction and notice requirement
5 in section twelve hundred twenty-three of this article shall also apply.
6 § 5. Section 1210 of the tax law is amended by adding a new subdivi-
7 sion (q) to read as follows:
8 (q) Notwithstanding any other provision of state or local law, ordi-
9 nance or resolution to the contrary: (1) Any city having a population of
10 one million or more in which the taxes imposed by section eleven hundred
11 seven of this chapter are in effect, acting through its local legisla-
12 tive body, is hereby authorized and empowered to elect to provide the
13 exemption from such taxes for the same mobile communications services
14 exempt from state sales and compensating use taxes described in subdivi-
15 sion (cc) of section eleven hundred fifteen of this chapter by enacting
16 a resolution in the form set forth in paragraph two of this subdivision;
17 whereupon, upon compliance with the provisions of subdivisions (d) and
18 (e) of this section, such enactment of such resolution shall be deemed
19 to be an amendment to such section eleven hundred seven and such section
20 eleven hundred seven shall be deemed to incorporate such exemption as if
21 it had been duly enacted by the state legislature and approved by the
22 governor.
23 (2) Form of resolution: Be it enacted by the (insert proper title of
24 local legislative body) as follows:
25 Section one. Receipts from sales of and consideration given or
26 contracted to be given for purchases of mobile telecommunications
27 services exempt from state sales and compensating use taxes pursuant to
28 subdivision (cc) of section eleven hundred fifteen of the tax law shall
29 also be exempt from sales and compensating use taxes imposed in this
30 jurisdiction.
31 Section two. This resolution shall take effect, (insert the date) and
32 shall apply to sales made and uses occurring on and after that date
33 although made or occurring under a prior contract.
34 § 6. The commissioner of taxation and finance is hereby authorized to
35 implement the provisions of this act with respect to the elimination of
36 the imposition of sales tax, additional taxes, and supplemental taxes on
37 wireless telecommunications services and all other taxes so addressed by
38 this act.
39 § 7. This act shall take effect on the first day of the sales tax
40 quarterly period, as described in subdivision (b) of section 1136 of the
41 tax law, beginning at least ninety days after the date this act shall
42 have become a law and shall apply in accordance with the applicable
43 transitional provisions of sections 1106 and 1217 of the tax law;
44 provided, however, that section three of this act shall take effect on
45 the same date and in the same manner as section 5 of part Z of chapter
46 60 of the laws of 2016 takes effect.
47 § 2. Severability. If any clause, sentence, paragraph, section or part
48 of this act shall be adjudged by any court of competent jurisdiction to
49 be invalid and after exhaustion of all further judicial review, the
50 judgment shall not affect, impair, or invalidate the remainder thereof,
51 but shall be confined in its operation to the clause, sentence, para-
52 graph, section or part of this act directly involved in the controversy
53 in which the judgment shall have been rendered.
54 § 3. This act shall take effect immediately provided, however, that
55 the applicable effective date of Parts A through B of this act shall be
56 as specifically set forth in the last section of such Parts.
