NY Tax L § 5-A (2021)
2021 New York Laws TAX - Tax Article 1 - Short Title; Definitions; Miscellaneous 5-A - Certification of Registration to Collect Sales and Compensating Use Taxes by Certain Contractors, Affiliates and Subcontractors.

§ 5-a. Certification of registration to collect sales and compensating use  taxes by certain contractors, affiliates and subcontractors. 1. For purposes of this section, the following terms shall have  the  specified meanings:  (a)   "Affiliate"   means  a  person  which  directly,  indirectly  or constructively  (1) controls another person;  (2) is controlled by another person; or  (3) is, along with another person,  under  the  control  of  a  common parent.   "Control"  means  possession  of  the  power  to  direct, or cause the direction of, the management and policies of another person.  (b) "Commodities" means commodities as defined in  article  eleven  of the state finance law.  (c)  (1)  "Contract"  means  an  agreement  between a contractor and a covered agency for the purchase  by  the  covered  agency,  pursuant  to article  eleven  of  the  state  finance law, of commodities or services having a value in excess of one hundred thousand dollars.   The term "contract" shall also  include  a  centralized  contract,  as defined  in  article  eleven  of  the state finance law, with a value in excess of one hundred thousand dollars.  (2) The term "contract" shall not include:  (A) a purchase by a covered agency of commodities or services  with  a value  in  excess  of  one  hundred thousand dollars based upon a formal mini-bid solicitation pursuant to a centralized contract;  (B) a grant or an intergovernmental agreement; or  (C) a purchase of commodities or services from a  "preferred  source," as such term is defined in article eleven of the state finance law.  (3)  Multiple purchases of commodities or services by a covered agency from the same contractor  during  a  state  fiscal  year  shall  not  be aggregated  for  purposes  of  determining  whether the greater than one hundred thousand dollar threshold described in this subdivision has been met.  (d) "Contractor" means a person awarded a contract.  (e) "Covered agency" means a "state agency" for  purposes  of  article eleven  of  the  state finance law, the legislature, the judiciary, or a public authority or public benefit corporation at  least  one  of  whose members is appointed by the governor.  (f) "Department" means the department of taxation and finance.  (g)  "Person"  means  an  individual,  partnership,  limited liability company, society, association,  joint  stock  company,  or  corporation; provided,   however,  that  a  "person"  shall  not  include  a  "public corporation" or an "education corporation," as such terms are defined in section sixty-six of the  general  construction  law,  a  not-for-profit corporation  whose  contracts are subject to approval in accordance with article eleven-B of the  state  finance  law,  a  board  of  cooperative educational  services created pursuant to article forty of the education law, or a soil and  water  conservation  district  created  pursuant  to section five of the soil and water conservation districts law.  (h) "Sales and compensating use taxes" means state and local sales and compensating  use  taxes imposed by article twenty-eight and pursuant to the  authority  of  article  twenty-nine  of  this  chapter,  which  are administered by the commissioner.  (i)  "Sales  tax  quarter" means a quarterly period ending on the last day of February, May, August or November.  (j) "Services" means services as defined  in  article  eleven  of  the state finance law.  (k)  "Subcontractor" means a person engaged by a contractor or another subcontractor to perform a portion of the contractor's obligations under a contract.  (l) "State" means the state of New York.  (m)  "Taxable  services" means services, the receipts from the sale of which are taxable by article twenty-eight or article twenty-nine of this chapter.  (n) The terms "receipts," "sale,"  "tangible  personal  property"  and "vendor"  have  the  meanings  given  in  article  twenty-eight  of this chapter.   2. (a) Notwithstanding any provision of law to the contrary, before  a contract   may   take  effect,  the  contractor  must  comply  with  the requirements of subparagraphs one and two of this paragraph.  (1)  The  contractor  must  file  a  written  certification  with  the department, made under penalty of perjury, stating that:  (A)  if  the contractor made sales delivered by any means to locations within the state of  tangible  personal  property  or  taxable  services having  a  value  in excess of three hundred thousand dollars during the immediately  preceding  consecutive  four  sales   tax   quarters,   the contractor  is  registered  for  sales and compensating use tax purposes with the department under sections eleven hundred thirty-four and twelve hundred fifty-three of this chapter. If  the  contractor  did  not  make sales  delivered  by any means to locations within the state of tangible personal property or taxable services having a value in excess of  three hundred  thousand  dollars during such four sales tax quarters, then the contractor shall so certify;  (B) if any affiliate of the contractor made  sales  delivered  by  any means  to  locations  within  the state of tangible personal property or taxable services having a value in  excess  of  three  hundred  thousand dollars  during  the  immediately  preceding  consecutive four sales tax quarters, to the best of the contractor's knowledge, each such affiliate is registered for sales and  compensating  use  tax  purposes  with  the department  under sections eleven hundred thirty-four and twelve hundred fifty-three of this  chapter.  If  the  contractor  does  not  have  any affiliates,  or  does not have any affiliates which made sales delivered by any means to locations within the state of tangible personal property or taxable services having a value in excess of three  hundred  thousand dollars  during  such four sales tax quarters, then the contractor shall so certify; and  (C) if  any  subcontractor  made  sales  delivered  by  any  means  to locations  within  the  state  of  tangible personal property or taxable services having a value in excess  of  three  hundred  thousand  dollars during the immediately preceding consecutive four sales tax quarters, to the  best  of  the  contractor's  knowledge,  each such subcontractor is registered  for  sales  and  compensating  use  tax  purposes  with  the department  under sections eleven hundred thirty-four and twelve hundred fifty-three of this  chapter.  If  the  contractor  does  not  have  any subcontractors,   or  there  are  no  subcontractors  which  made  sales delivered by any  means  to  locations  within  the  state  of  tangible personal  property or taxable services having a value in excess of three hundred thousand dollars during such four sales tax quarters,  then  the contractor shall so certify.  (D) The certification required by this subparagraph shall include such additional  information as the department deems necessary for the proper administration of this section.  (E) The certification required by this subparagraph need only be filed with the department once and, once filed, shall be deemed to satisfy the requirements  of  this  subparagraph  for  purposes  of  any  subsequent  contract  to which the contractor is a party; provided, however, that if the contractor, or an affiliate or subcontractor, is  not  certified  as registered  with  the  department  for  sales  and  compensating use tax purposes   on   the   contractor's   original  certification,  and  such contractor, affiliate or subcontractor  makes  sales  delivered  by  any means  to  locations  within  the state of tangible personal property or taxable services having a value in  excess  of  three  hundred  thousand dollars  during any consecutive four sales tax quarters which follow the sales tax quarter in which the contractor's original  certification  was made,  then  the  contractor  shall,  as  soon  as  possible  after such occurrence, file an amended written certification with  the  department, made   under  penalty  of  perjury,  indicating  that  such  contractor, affiliate or  subcontractor,  as  applicable,  is  registered  with  the department for sales and compensating use tax purposes.  (2)  The  contractor  shall  also provide the procuring covered agency with a written certification, made under  penalty  of  perjury,  stating that:  (A)  the  contractor  has  filed  the certification prescribed by this section with the department, and that such certification is correct  and complete, or  (B)   such  certification  is  not  required  to  be  filed  with  the department, and explaining the reasons for such determination.  (C) the certification required by this subparagraph shall be  included in  the procurement record (as such term is defined in article eleven of the  state  finance  law),  or  similar  documentation  if   the   state comptroller is not required by law to approve the contract.  (D)  any  question  as to the accuracy of the contractor certification described in clause (B) of this subparagraph shall be  resolved  by  the contracting  covered  agency,  in  consultation,  as necessary, with the state comptroller and the department.  (b) A contractor, affiliate of the contractor, or subcontractor  which registers  for  sales  and  compensating use tax purposes under sections eleven hundred  thirty-four  and  twelve  hundred  fifty-three  of  this chapter in order to comply with the provisions of this subdivision shall be  a  vendor  and shall comply with and be subject to the provisions of articles twenty-eight and twenty-nine of this chapter.  (c) The certification requirements prescribed by this  subdivision  in order  for  a  contract to take effect shall be in addition to any other requirements prescribed by law relating to the formation of contracts to which a covered agency is a party.   3. (a) If a contract has taken effect, and the terms of such  contract provide  that  it  may  be  renewed  upon  expiration  of  an initial or subsequent term, then the contractor shall, no later than the day  prior to  the commencement date of the applicable renewal term, certify to the contracting covered agency in writing, and  under  penalty  of  perjury, that:  (1)  the  contractor  has  filed  the certification prescribed by this section with the department, and that such certification is correct  and complete, or  (2)  that  such  certification  is  not  required to be filed with the department, and explains the reasons for such determination.  (3) Any question as to the accuracy of  the  contractor  certification described in subparagraph two of this paragraph shall be resolved by the contracting  covered  agency,  in  consultation,  as necessary, with the state comptroller and the department.  (b) The certification required by paragraph (a)  of  this  subdivision shall  be made a part of the procurement record (as such term is defined  in article eleven of the state finance law), or similar documentation if the state comptroller is not required by law to approve the contract.  (c)  If  the  contractor  fails  to make the certification required by paragraph (a) of this  subdivision,  or  if,  during  the  term  of  the contract,  the  department  or  the  covered  agency discovers that such certification is false, then such failure or false  certification  shall be  a material breach of the contract, and the contract shall be subject to termination if the covered agency determines that such action  is  in the best interests of the state.  (d)  A contractor, affiliate of the contractor, or subcontractor which registers for sales and compensating use  tax  purposes  under  sections eleven  hundred  thirty-four  and  twelve  hundred  fifty-three  of this chapter in order to comply with the provisions of paragraph (a) of  this subdivision  shall  be  a vendor and shall comply with and be subject to the provisions of articles twenty-eight and twenty-nine of this chapter.   4. The provisions of this section shall not apply to a contract if the procuring covered agency and the state comptroller, or  other  approving authority  if  the  state  comptroller  is  not  required to approve the contract, find in writing that the contract is necessary to  address  an "emergency,"  within  the meaning of article eleven of the state finance law, or to ensure the public health, safety  or  welfare.  Such  written finding shall explain the reasons supporting such determination.