NY Tax L § 186-A (2021)
2021 New York Laws TAX - Tax Article 9 - Corporation Tax 186-A - Tax on the Furnishing of Utility Services.

§ 186-a. Tax on the furnishing of utility services. 1. Notwithstanding any  other  provision  of  this  chapter, or of any other law, (a) a tax equal to three and one-quarter percent  through  December  thirty-first, nineteen  hundred ninety-nine, and two and one-half percent on and after January first, two thousand of its gross income is hereby  imposed  upon every  provider  of  telecommunication  services  doing business in this state which is subject to the supervision of  the  state  department  of public  service  which  has  a gross income for the year ending December thirty-first in excess of five hundred dollars;  (b) a tax equal to (1)  two  and  five-tenths  percent  on  and  after January first, two thousand through December thirty-first, two thousand, two  and  forty-five  one  hundredths  percent  from  January first, two thousand one through December thirty-first, two thousand  one,  two  and four-tenths  percent  from  January  first,  two  thousand  two  through December  thirty-first,  two  thousand  two,  two  and  twenty-five  one hundredths  percent  from  January  first,  two  thousand  three through December  thirty-first,  two  thousand  three,  two  and   one   hundred twenty-five  one  thousandths  percent  from January first, two thousand four through December thirty-first, two thousand four  and  two  percent commencing  January  first,  two  thousand  five  and thereafter of that portion  of  its  gross  income   derived   from   the   transportation, transmission or distribution of gas or electricity by means of conduits, mains, pipes, wires, lines or the like and (2) two and one-tenth percent from  January  first,  two  thousand  through December thirty-first, two thousand, two percent from  January  first,  two  thousand  one  through December  thirty-first,  two  thousand  one, one and nine-tenths percent from January first, two thousand two through December thirty-first,  two thousand  two,  eighty-five  one  hundredths of one percent from January first, two thousand three through December  thirty-first,  two  thousand three,  four-tenths of one percent from January first, two thousand four through December  thirty-first,  two  thousand  four  and  zero  percent commencing  January  first,  two thousand five of all of its other gross income, is hereby imposed upon every utility not taxed  under  paragraph (a) of this subdivision doing business in this state which is subject to the  supervision  of  the state department of public service which has a gross income for the year ending December thirty-first in excess of five hundred dollars, except  motor  carriers  or  brokers  subject  to  such supervision under the public service law; and  (c)  a  tax  equal  to  three and one-quarter percent through December thirty-first, nineteen hundred ninety-nine, two  and  one-tenth  percent from  January  first,  two  thousand  through December thirty-first, two thousand, two percent from  January  first,  two  thousand  one  through December  thirty-first,  two  thousand  one, one and nine-tenths percent from January first, two thousand two through December thirty-first,  two thousand  two,  eighty-five  one  hundredths of one percent from January first, two thousand three through December  thirty-first,  two  thousand three,  four-tenths of one percent from January first, two thousand four through December  thirty-first,  two  thousand  four  and  zero  percent commencing  January  first,  two  thousand  five  of its gross operating income is hereby imposed upon every other utility doing business in this state which has a gross operating income for the  year  ending  December thirty-first  in excess of five hundred dollars, which taxes shall be in addition to any and all other  taxes  and  fees  imposed  by  any  other provision of law for the same period.   2.  As  used  in  this  section, (a) the word "utility" includes every person (including every provider of telecommunication services)  subject to  the  supervision  of  the state department of public service, except persons engaged in the business of operating on the public  highways  of  this state one or more omnibuses, having a seating capacity of more than seven  persons,  and  persons  engaged  in  the business of operating or leasing sleeping and parlor railroad  cars  or  of  operating  railroads other than street surface, rapid transit, subway and elevated railroads, and also includes every person (whether or not such person is subject to such   supervision)   who   sells  gas,  electricity,  steam,  water  or refrigeration, delivered through mains, pipes  or  wires,  or  furnishes gas,  electric, steam, water or refrigerator service, by means of mains, pipes, or wires; regardless of whether  such  activities  are  the  main business  of  such  person or are only incidental thereto, or of whether use is made of the public streets;  (b)  the  word  "person"  means  persons,   corporations,   companies, associations,  joint-stock  companies  or associations, partnerships and limited liability companies, estates,  assignee  of  rents,  any  person acting  in a fiduciary capacity, or any other entity, and persons, their assignees, lessees,  trustees  or  receivers,  appointed  by  any  court whatsoever,  or  by  any  other means, except the state; municipalities, political and civil subdivisions of the state or municipality and public districts (provided, however, that with respect to gas, electricity  and gas  or  electric  service,  including  the  sale of the transportation, transmission or distribution of gas or electricity, such municipalities, political and civil subdivisions and public districts shall be  excluded from the definition of "person" if they own and operate facilities which are  used  to  generate  or distribute electricity or distribute gas and they distribute and sell such  gas  or  electricity  solely  at  retail, solely  within their respective jurisdiction; or provided, further, with respect to the sale of electricity or the  transportation,  transmission or  distribution  of  electricity, a municipality shall be excluded from the definition of "person" if it sells electricity at retail  where  all such  electricity (excluding temporary substitution power during outages or periods of reduced output) has been generated solely by and purchased solely from the state or a public authority of the state);  corporations and  associations  which  are  organized  and  operated  exclusively for religious, charitable or  educational  purposes,  no  part  of  the  net earnings  of  which  inures to the benefit of any private shareholder or individual, and which are described in paragraph four of subdivision (a) of  section  eleven  hundred  sixteen  of  this   chapter   where   such organization  resells such gas or electricity or gas or electric service as landlord to its tenants in buildings owned by such organization;  and excepting  a  corporation  organized  and  operated  exclusively for the purpose of leasing from a  city  in  this  state  a  water-works  system designed  to supply water at cost to users thereof for discharge, either before or after industrial use, into a river within such city  in  order to improve the flow and condition of such river and thereby to provide a means to relieve such river from pollution;  (c)  the words "gross income" mean and include receipts received in or by  reason  of  any  sale,  conditional  or  otherwise,  (except   sales hereinafter  referred  to  with  respect  to  which  it is provided that profits from the sale shall be included in gross income) made or service rendered for ultimate consumption or use by the purchaser in this state, including cash, credits and property of any kind or nature  (whether  or not  such  sale is made or such service is rendered for profit), without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or services or other  costs,  interest  or discount paid, or any other expense whatsoever.  (1)   Provided,   however,   that  all  receipts  from  sales  of  the transportation, transmission or distribution of gas  or  electricity  by means  of  conduits, mains, pipes, wires, lines or the like, rendered or  performed in this state,  shall  be  included  in  gross  income  except receipts   from   (i)  sales  of  the  transportation,  transmission  or distribution of gas or electricity to (A) a utility (excluding a  public authority)  which  is  supervised  by this state or another jurisdiction (where an element of such supervision includes rate regulation and,  for a  utility supervised by another jurisdiction, such supervision includes rate regulation and such gas or electricity is  delivered  for  ultimate consumption  or  use  outside this state), (B) a municipality which owns and operates  facilities  which  are  used  to  generate  or  distribute electricity  or  distribute  gas  and  which  distributes and sells such electricity or gas  solely  at  retail,  solely  within  its  respective jurisdiction,  or (C) a public authority of this state where such public authority is primarily engaged in the  generation  and  transmission  or distribution  of  electricity  or the distribution of electricity or gas and at least ninety-five percent of the assets of which are so  devoted, provided, that, if the service area or district of the authority is less than the entire state, the excluded receipt shall be limited to receipts derived from the sale of transportation, transmission or distribution of gas  or  electricity,  which  electricity  or  gas  will be sold by such authority at retail within its service area or district; where,  as  the case  may  be, such utility or authority purchasing such transportation, transmission or distribution sells  the  gas  or  electricity  being  so transported,   transmitted   or   distributed,   (ii)   sales   of   the transportation,  transmission  or  distribution  of  electricity  to   a municipality  where the electricity being transported has been purchased by such municipality and has been  generated  solely  by  and  purchased solely  from  the state or a public authority of the state (except where the electricity being  transported  constitutes  temporary  substitution power  being  supplied  during outages or periods of reduced output) and where such municipality purchasing such transportation, transmission  or distribution,  sells  solely  at  retail,  solely  within its respective jurisdiction, the  electricity  being  so  transported,  transmitted  or distributed,   (iii)   sales  of  the  transportation,  transmission  or distribution of gas or  electricity  to  corporations  and  associations which  are  organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures  to the  benefit  of  any  private  shareholder or individual, and which are described in paragraph four of subdivision (a) of section eleven hundred sixteen  of  this  chapter  where   such   organization   resells   such transportation, transmission or distribution as part of a bundled gas or electric  service  as landlord to its tenants in buildings owned by such organization, or (iv)  sales  of  the  transportation,  transmission  or distribution   of   gas  or  electricity,  not  otherwise  excluded,  to nonresidential customers, but only  in  accordance  with  the  following schedule:  for  the sales during the calendar years two thousand and two thousand one, zero percent of the receipts  from  such  sales  shall  be excluded;  for  the  sales  during  the  calendar year two thousand two, twenty-five percent of the receipts from such sales shall  be  excluded; for  sales during the calendar year two thousand three, fifty percent of the receipts from such sales shall be excluded;  for  sales  during  the calendar  year  two  thousand four, seventy-five percent of the receipts from such sales shall be excluded; and for sales thereafter, one hundred percent of such sales shall  be  excluded.  For  the  purposes  of  this clause,  the term "nonresidential customers" means those customers whose use of gas or electricity, or gas or electric service does  not  qualify for  the  reduced  rate  of  sales  and  compensating  use  tax  on gas, electricity, or gas or electric service  under  section  eleven  hundred five-A of article twenty-eight of this chapter.  (2)  Provided,  further,  receipts  received  from  the  sale  of  the transportation, transmission or distribution of gas or electricity shall mean the receipts received from customers representing the  noncommodity charges for gas or electric service.  (3)  Provided,  further,  gross  income  with respect to a provider of telecommunication services shall not include receipts from the  sale  of telecommunication  services  as such services are defined in section one hundred eighty-six-e of this article.  (4) Provided, further, sales of  gas,  electricity,  steam,  water  or refrigeration  or gas, electric, steam, water or refrigerator service to a landlord that is a person as defined in this subdivision for resale by such landlord to a tenant, for consumption by such tenant as an incident to such landlord's activity of renting premises to such tenant, shall be subject to the tax imposed under this section even though such sales are not for  ultimate  consumption  by  such  landlord.  Provided,  further, receipts   derived   by  a  landlord  from  the  resale  for  such  gas, electricity, steam, water or refrigeration or furnishing gas,  electric, steam,   water   or   refrigerator  service  to  such  tenant  shall  be conclusively presumed to be equal to such landlord's cost of  the  same, and,  if  the  tax  under  this  section was imposed on the sale to such landlord, no additional tax under this section shall  be  owing  on  the sale  by  such  landlord to such tenant. If, however, the tax under this section was not imposed on such sale to the landlord, then such landlord on the sale to its tenant shall file a return hereunder  based  on  such landlord's  cost  (including any associated transportation cost) of such gas, electricity, steam, water or refrigeration or gas, electric, steam, water or refrigerator service.  (5) "Gross income" also includes profits from the sale of  securities; also profits from the sale of real property growing out of the ownership or  use  of  or  interest in such property; also profit from the sale of personal property (other than property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the period for which  a  return  is  made);  also  receipts  from  interest, dividends,  and  royalties, derived from sources within this state other than such as are received from a corporation a majority of whose  voting stock is owned by the taxpaying utility, without any deduction therefrom for  any  expenses  whatsoever  incurred  in connection with the receipt thereof, also profits from any transaction (except sales for resale  and rentals) within this state whatsoever;  (d)  the  words  "gross  operating  income"  mean and include receipts received in or by reason of any sale, conditional or otherwise, made for ultimate consumption or use by the purchaser of gas, electricity, steam, water or refrigeration, or in or by reason of the  furnishing  for  such consumption  or  use  of  gas,  electric,  steam,  water or refrigerator service in this state, including cash, credits and property of any  kind or nature, without any deduction therefrom on account of the cost of the property  sold,  the  cost of materials used, labor or services or other costs, interest or discount paid,  or  any  other  expenses  whatsoever. Provided,  however,  there shall be excluded from gross operating income receipts representing  the  amount  received  from  the  resale  of  the transportation,  transmission  or  distribution of gas or electricity in this state where such transportation, transmission or distribution being resold is provided by a utility subject to tax under  paragraph  (b)  of subdivision  one  of  this section; the receipts representing the amount received  from  resale   of   such   transportation,   transmission   or distribution  shall  be  the  amount  received  for such transportation, transmission or distribution by such utility  which  initially  provided such  transportation,  transmission or distributions. Provided, further,  sales of  gas,  electricity,  steam,  water  or  refrigeration  or  gas, electric,  steam,  water or refrigerator service to a landlord that is a person as defined in this subdivision for resale by such landlord  to  a tenant, for consumption by such tenant as an incident to such landlord's activity of renting premises to such tenant, shall be subject to the tax imposed  under  this section even though such sales are not for ultimate consumption by such landlord. Provided, further, receipts derived  by  a landlord  from  the  resale  of  such  gas, electricity, steam, water or refrigeration or furnishing gas, electric, steam, water or  refrigerator service  to  such  tenant  shall be conclusively presumed to be equal to such landlord's cost of the same, and, if the tax under this section was imposed on the sale to such  landlord,  no  additional  tax  under  this section  shall  be owing on the sale by such landlord to such tenant. If the tax under this section was not imposed on such sale to the landlord, then such landlord on the  sale  to  its  tenant  shall  file  a  return hereunder  based  on  such  landlord's  cost  (including  any associated transportation  cost)  of  such  gas,  electricity,  steam,   water   or refrigeration or gas, electric, steam, water or refrigerator service;  (e)  the term "telecommunication services" shall have the same meaning as such term is defined in section  one  hundred  eighty-six-e  of  this article;  (f)  The  word "premises" means and includes any real property or part thereof, and any structure thereon or space therein; and  (g) the word "tenant" means and includes a person paying, or  required to   pay,  rent  for  premises  as  a  lessee,  sublessee,  licensee  or concessionaire.   2-a. Tax adjustment for utilities with financial  resource  asset  for taxable  years  commencing  on and after January first, nineteen hundred ninety-two.  Notwithstanding  any  provision  of  this  section  to  the contrary,  in  the  event  that  a  utility  which is taxable under this section is an electric corporation, as defined in  subdivision  thirteen of  section  two  of  the  public  service  law, which, on or before the effective date of this subdivision, has been  permitted  by  the  public service  commission  to  establish  for  ratemaking purposes a financial resource asset (which asset shall represent, in an  amount  approved  by the  public  service  commission on or before the effective date of this subdivision, the present value of a stream of future cash flows,  rather than  actual  land,  land  rights,  physical structures, improvements or other physical items, franchises or intangible plant), such an  electric corporation  shall be allowed an adjustment by way of the allowance of a deduction from its gross income subject to tax under subdivision one  of this  section  equal  to  the  amount by which (a) that portion of gross income received in any year  after  nineteen  hundred  ninety-one  which represents  the total return authorized by the public service commission to be recovered in rates on  the  financial  resource  asset,  including amortization,  exceeds  (b) that portion of gross income received in the twelve-month  period  immediately  preceding  the  month  in  which  the financial resource asset is established pursuant to authorization of the public  service  commission  and  which represents (i) the total revenue derived from any financial  stability  adjustment  and  (ii)  the  total return  on  interest-bearing  construction  work in progress in the rate base permitted by the public service commission. No electric corporation shall be allowed the tax adjustment authorized by this subdivision until it shall file, together with the return required to be filed pursuant to subdivision four of this section, a certificate for the  period  covered by  the  return from the department of public service verifying that the calculation of such tax adjustment complies with this  subdivision.  The adjustment  to  gross  income  allowed  by this subdivision shall not be  applicable in calculating any other tax  imposed  or  authorized  to  be imposed  by  this  chapter  or  any  other  law,  and  the amount of tax surcharge equal to seventeen per centum imposed pursuant to section  one hundred  eighty-six-c  of  this  article,  and  the  amount  of  the tax surcharge  imposed  under  section  one  hundred  eighty-eight  of  this article,  shall  be calculated and payable as if the adjustment provided in this subdivision were not allowed.   3. Every utility subject to tax under this  section  shall  keep  such records  of  its  business  and  in  such form as the tax commission may require, and such records shall be  preserved  for  a  period  of  three years,  except  that the tax commission may consent to their destruction within that period or may require that they be kept longer.   4. Every utility subject to tax hereunder shall  file,  on  or  before March  fifteenth  of  each  year,  a  return  for  the year ended on the preceding December thirty-first,  for  taxable  years  beginning  before January  first,  two  thousand  sixteen,  except  that the year ended on December thirty-first, nineteen hundred seventy-six shall be deemed, for the purposes of this subdivision,  to  have  commenced  on  June  first, nineteen  hundred  seventy-six,  and  shall  file,  on  or  before April fifteenth of each year, a return for the year  ended  on  the  preceding December  thirty-first,  for taxable years beginning on or after January first, two thousand sixteen, including any  period  for  which  the  tax imposed  hereby  or  by any amendment hereof is effective, each of which returns shall state the gross income or gross operating income  for  the period  covered  by  each  such  return. Returns shall be filed with the commissioner of taxation and finance on a form to be  furnished  by  the commissioner  for  such  purpose  and  shall  contain  such  other data, information or matter as the commissioner may  require  to  be  included therein.  Notwithstanding  the foregoing provisions of this subdivision, the commissioner may require any utility to file an annual return, which shall contain any data specified  by  the  commissioner,  regardless  of whether  the  utility  is  subject  to  tax  under this section; and the commissioner may require a landlord selling to a tenant  gas,  electric, steam,  water or refrigeration or furnishing gas, electric, steam, water or refrigerator service, where the same has been subjected to tax  under this  section  on  the  sale to such landlord, to file, on or before the fifteenth day of March of each year, for taxable years beginning  before January  first, two thousand sixteen, and on or before the fifteenth day of April of each year, for taxable years beginning on or  after  January first, two thousand sixteen, an information return for the year ended on the preceding December thirty-first, covering such year in such form and containing such data as the commissioner may specify. Every return shall have  annexed  thereto a certification by the head of the utility making the same, or of the owner or of a co-partner thereof, or of a  principal officer  of  the  corporation,  if  such  business  be  conducted  by  a corporation, to the effect that the  statements  contained  therein  are true.   5. If any provision of this section conflicts with any other provision contained  in this article, the provision of this section shall control, but the provisions of this  article  which  do  not  conflict  with  the provisions  of  this section shall apply with respect to the taxes under this section, so far as they are, or may be made applicable.   6. The tax imposed by this section shall be  charged  against  and  be paid  by  the  utility  and  may  be  added  as a separate item to bills rendered by the utility to customers. Upon  request  the  utility  shall furnish  a statement of the amount of tax imposed by this section to its customers for bills rendered on or after January first, two thousand.    7. Notwithstanding any other provision contained in this or any  other law,  in the event the city of New York shall enact a local law imposing a tax on utilities, such as it imposed by this section, except as to the rate of tax, the tax commission, in its discretion, may arrange with the chief  fiscal  officer of said city for the collection by him of the tax imposed by this section with respect to items that enter  into  the  tax base  for both the tax imposed by said city and that imposed pursuant to this section, and for the remittance by him of the tax imposed  by  this section  to  the  tax  commission  for  disposition  as  in this article provided. If such an arrangement be made,  all  the  provisions  of  the local  law  of said city imposing the local tax shall apply with respect to the tax imposed by this section in the same manner as  if  the  local tax rate had included the tax imposed by this section.   9.  Notwithstanding  any  other provision contained in this chapter or any other  law,  any  surcharge  collected  or  any  administrative  fee retained  by  any telephone corporation acting as collection agent for a municipality pursuant to the provisions of article six of the county law shall not be considered as nor included in the  determination  of  gross income or gross operating income of or by such corporation.