NY Tax L § 1111 (2021)
2021 New York Laws TAX - Tax Article 28 - Sales and Compensating Use Taxes Part 2 - Imposition of Taxes 1111 - Special Rules for Computing Receipts and Consideration.

§  1111.  Special rules for computing receipts and consideration.  (a) The retail sales tax imposed under subdivision  (a)  of  section  eleven hundred  five  of  this  part and the compensating use tax imposed under section eleven hundred ten of this part, when  computed  in  respect  to tangible personal property wherever manufactured, processed or assembled and  used  by  such  manufacturer, processor or assembler in the regular course of business within this state, shall be based  on  the  price  at which  items  of the same kind of tangible personal property are offered for sale by him, except to the extent otherwise provided in this section or section eleven hundred ten of this part.  (b) Tangible personal property, which has been purchased by a resident of New York state outside of this state for use outside  of  this  state and  subsequently  becomes  subject  to the compensating use tax imposed under this article, shall be taxed on the basis of the purchase price of such property, provided, however:  (1) That where a taxpayer affirmatively shows that  the  property  was used outside such state by him for more than six months prior to its use within  this state, such property shall be taxed on the basis of current market value of the property at the time of its first  use  within  this state.  The  value  of such property, for compensating use tax purposes, may not exceed its cost.  (2) That the compensating use tax on such tangible  personal  property brought  into  this  state  (other  than for complete consumption or for incorporation into real property located in this state) and used in  the performance  of  a  contract  or  sub-contract  within  this  state by a purchaser or user for a period of less than six months may be based,  at the  option  of  the taxpayer, on the fair rental value of such property for the period of use within this state.  (c) For the amount and timing of tax in respect to property leased, or sold under a contract deferring payments,  see  section  eleven  hundred thirty-two.  For  the  amount  and  timing  of tax in respect to certain leased property, see subdivision (i) of this section.  (d) The commissioner is authorized and  empowered  to  prescribe  and, from  time  to  time,  to  amend  schedules  of  the amount of tax to be collected upon each gallon of motor fuel and diesel motor fuel  sold  at retail  and upon each gallon of such fuel subject to the tax required to be prepaid pursuant to section eleven hundred two  of  this  article  or upon  each package of cigarettes sold at retail and upon each package of cigarettes subject to the tax  required  to  be  prepaid  under  section eleven  hundred  three  of  this  article,  as  the  commissioner  shall determine  is  approximately  equal  to  the  average   rate   otherwise applicable, considering the regional average retail sales prices of such fuel,  the  amount  of  the  prepaid  tax  per  package of cigarettes in accordance with subdivision (j) of this section and, in the  case  of  a sale  at retail, the ordinary price ranges for such fuel and cigarettes, in lieu of the regular schedule based  on  total  receipts.  Such  rates shall  be  uniform  in  each  county  but  may vary as between counties, depending on the general price ranges in  effect  in  each  county,  but counties  wholly within a city shall have a uniform rate. If a political subdivision of a county imposes a retail sales  and  use  tax,  separate rates may be prescribed for it. Such schedules with reference to the tax required  to  be prepaid on motor fuel and diesel motor fuel pursuant to section eleven hundred two of this article or the  tax  required  to  be prepaid on cigarettes under section eleven hundred three of this article may fix the rate per gallon or per package of cigarettes in multiples of one-tenth  of  one  cent,  depending,  in  the case of such fuel, on the regional average retail sales prices where such fuel is, as the case may be, imported, manufactured, sold or used. Such schedules with  reference  to such fuel or cigarettes sold at retail may fix the rate per gallon or per  package,  as the case may be, in multiples of one-tenth of one cent depending on the price at which such fuel or cigarettes are sold.  Where schedules  fixing  the  rate per gallon in multiples of one-tenth of one cent have been promulgated, the price shown on any metered pump or other dispensing device from which such fuel is sold to a  purchaser  of  such fuel, to be delivered directly to a vehicle propelled by any power other than  muscular,  shall  include  the  tax  at the rate so fixed, and the commissioner may by regulation prescribe the manner in which the  amount of  tax  shall  be  shown  for  the information of customers by signs or placards on the premises where such fuel is sold. When  determining  tax required  to  be  collected  on  the retail sale of motor fuel or diesel motor fuel or cigarettes, the receipts on which tax  is  computed  shall not include the amount of tax required to be prepaid pursuant to section eleven hundred two of this article with respect to such fuel or pursuant to  section  eleven  hundred  three of this article with respect to such cigarettes.  (e) (1) There are hereby created  and  established  within  the  state three  regions for purposes of the payment of the tax imposed by section eleven hundred two of this article. (i) the first region  shall  consist of  the  localities included in the metropolitan commuter transportation district created and established  pursuant  to  section  twelve  hundred sixty-two  of  the  public  authorities  law,  excluding  all localities included in the counties of Nassau and Suffolk. (ii) The  second  region shall  consist  of the localities included in the counties of Nassau and Suffolk. (iii) The third region shall consist of the area of  the  state outside  the  regions  referred to in subparagraphs (i) and (ii) of this paragraph.  (2) (i) Where the motor fuel is imported, manufactured or sold in,  or diesel  motor  fuel  is  sold  or  used  in  the  region  referred to in subparagraph (i) of paragraph one of this subdivision, the tax  required to  be prepaid pursuant to section eleven hundred two of this article on each gallon of such fuel shall be sixteen cents.  (ii) Where motor fuel is imported, manufactured or sold in, or  diesel motor  fuel  is  sold  or used in the region referred to in subparagraph (ii) of paragraph one of  this  subdivision,  the  tax  required  to  be prepaid  pursuant  to section eleven hundred two of this article on each gallon of such fuel shall be sixteen cents.  (iii) Where motor fuel is imported, manufactured or sold in, or diesel motor fuel is sold or used in the region  referred  to  in  subparagraph (iii)  of  paragraph  one  of  this  subdivision, the tax required to be prepaid pursuant to section eleven hundred two of this article  on  each gallon of such fuel shall be fifteen cents.  (3)  When  a wholesaler of motor fuel sells motor fuel in a region, as defined in paragraph one of this subdivision, different from the  region in which such motor fuel was purchased:  (i)  if  the  region  in  which  it  sells the motor fuel has a higher prepaid rate as set forth in this subdivision than the region  in  which the  wholesaler purchased the motor fuel in, the wholesaler shall pay to the department the difference in the rates for the gallonage sold.  (ii) if the region in which it  sells  the  motor  fuel  has  a  lower prepaid  rate  as set forth in this subdivision than the region in which the wholesaler  purchased  the  motor  fuel,  the  wholesaler  shall  be entitled  to  a credit or refund for the difference in the rates for the gallonage sold.  (4) The commissioner is authorized to adjust the  rates  in  paragraph two of this subdivision and shall prescribe a schedule of such rates for  each  region  described in paragraph one of this subdivision as provided in this paragraph.  (i)  The  schedule  required  by  this  paragraph  shall  be  reviewed semiannually during the months  of  April  and  October  of  each  year, beginning  in  October,  two  thousand seventeen. The commissioner shall determine a tentative rate of tax that would be required to  be  prepaid pursuant to section eleven hundred two of this article on each gallon of motor fuel or diesel motor fuel sold or used by multiplying the regional average  retail  sales prices for such fuel for each region described in paragraph one of this subdivision  by  a  number  that  is  seventy-five percent  of  the  average  local  sales tax rate in each such region and adding to the product thereof the taxes imposed by  paragraphs  one  and two  of  subdivision  (m)  of  this section. The regional average retail sales price shall be determined for purposes of this  subdivision  using data regarding sales prices, which shall include, but not be limited to, sales  prices as compiled by government or industry surveys and sources, taking into consideration with respect to motor fuel,  the  volumes  and prices  of  unleaded  motor  fuels, including reformulated or like motor fuels, sold in this state and with respect to both motor fuel and diesel motor fuel, the volume and prices of such fuels sold at full service and self-service pumps for  such  fuels,  during  an  immediately  preceding period  of  up to twelve months ending the last day of March in the case of the April semiannual review and ending the last day of  September  in the  case  of the October semiannual review; provided, however, that the regional average retail sales prices for  both  motor  fuel  and  diesel motor  fuel  shall  represent the retail sales prices upon which the tax under this article and pursuant to the authority of article  twenty-nine of  this  chapter  is  computed (including all federal and state and any local taxes included in such price) for such period.  (ii) If upon such review, it is determined that the tentative rate  of tax  that would be required to be prepaid for motor fuel or diesel motor fuel  in  any  of  the  regions  described  in  paragraph  one  of  this subdivision  would increase or decrease the rate for such region then in effect by two or more cents per gallon, the  commissioner  shall  adjust such  rate to be equal to the tentative rate, which shall take effect on the first day of June  or  the  first  day  of  December,  respectively. Provided,  however,  the commissioner shall set the rate of tax required to be prepaid in the region described in subparagraph (ii) of  paragraph one  of this subdivision equal to the rate set forth in subparagraph (i) of such paragraph, unless the regional average retail sales price in the metropolitan commuter transportation district exceeds four  dollars  per gallon.  In  such  event,  the commissioner is authorized to establish a separate rate in the region described  in  such  subparagraph  (ii)  and shall compute such rate by multiplying the regional average retail sales prices  for  motor fuel and diesel motor fuel in such region by a number that is eighty-five percent of the average local sales tax rate in  such region and adding to the product thereof the taxes imposed by paragraphs one and two of subdivision (m) of this section.  (iii) The commissioner shall cause to be published on the department's website  the  schedule  of  rates  and the regional average retail sales prices of motor fuel and diesel motor fuel fixed  by  this  section,  no later  than  ten  days  prior  to  the  effective  date  of  such rates. Notwithstanding  any  other  provision  of  law,  the  calculation   and publication  of  the  rates  so  fixed by the provisions of this section shall not be included within paragraph (a) of subdivision two of section one hundred two of the state administrative procedure  act  relating  to the definition of a rule.  (5)  Where  a new rate of tax required to be prepaid for motor fuel or diesel motor fuel is determined by the commissioner,  (i)  if  such  new rate  is less than the rate then in effect, on the date the rate becomes effective (A) a registered distributor shall be entitled to a credit  in an  amount equal to the difference between the amount of the prepaid tax paid or incurred by him or her with respect to motor fuel  which  he  or she  imported  and which he or she has in inventory at the time such new rate becomes effective and the amount of tax which would be due on  such inventory  if  the prepaid tax were calculated based on such new average price for the region in which such motor fuel was imported and (B)  such inventory  shall then be deemed to have been taxed based on the rate and all certifications of tax payment given by the distributor with  respect to  motor  fuel  in  such inventory shall indicate a pass through of the prepaid tax based on such new price, (ii) if such new  rate  is  greater than  the existing rate, on the date such new rate becomes effective (A) such distributor shall become liable to pay an additional tax  equal  to the difference between the amount of tax which would be due with respect to  motor  fuel  which  he  or  she  imported and which he or she has in inventory at the time such new rate becomes effective if the prepaid tax on such motor fuel were calculated based on such new average  price  for the  region  in  which  such  motor  fuel was imported and the amount of prepaid tax paid or actually incurred by such distributor  with  respect to  such  motor fuel and (B) such inventory shall then be deemed to have been taxed based on the new rate and all certifications of  tax  payment given  by  the  distributor with respect to motor fuel in such inventory shall indicate a pass through of the prepaid tax based on such new rate. Such credit shall be allowed with respect to or such tax shall  be  paid with  the  return  covering the month immediately preceding the month in which such new rate becomes  effective.  Any  carryover  credit  may  be applied  to  subsequent periods. The amount to be reported as additional tax shall be paid and disposed of in the same manner as the tax required to be prepaid by section  eleven  hundred  two  of  this  article.  Such additional  tax shall be determined, assessed, collected and enforced in the same manner as the tax required to  be  prepaid  by  section  eleven hundred two of this article.  (f)  The  retail  sales  tax  imposed under subdivision (a) of section eleven hundred five and the compensating use tax imposed  under  section eleven hundred ten, when computed in respect to a new mobile home, shall be  computed  on  seventy percent of the receipts or consideration given therefor by the purchaser or user.  (g) The sale of race horses made through  claiming  races  within  the state,  shall  be  subject to sales tax but only on such portions of the total purchase price that exceed  the  highest  of  any  prior  purchase prices  paid for the same horse during the same calendar year within the state. Where no previous purchases have  been  made  within  a  calendar year,  the  full  purchase price shall be taxable. Officials of all race tracks in the state shall maintain and make available,  upon  reasonable request, accurate and detailed lists of such sales.  (h)  Receipts  subject  to tax under subdivision (a) of section eleven hundred five on retail sales of  cigarettes  and  tobacco  products  and consideration given or contracted to be given for cigarettes and tobacco products  the  uses  of  which  are  subject to tax under section eleven hundred ten shall be deemed to include any tax imposed on cigarettes and tobacco products by article twenty of this chapter and any  tax  imposed on  cigarettes by chapter thirteen of title eleven of the administrative code of the city of New York.  (i) (A) Notwithstanding any contrary provisions  of  this  article  or other  law,  with respect to any lease for a term of one year or more of  (1) a motor vehicle, as defined in section one  hundred  twenty-five  of the vehicle and traffic law, with a gross vehicle weight of ten thousand pounds  or  less,  or  (2)  a  vessel,  as defined in section twenty-two hundred  fifty  of such law (including any inboard or outboard motor and any trailer, as defined in section one hundred fifty-six  of  such  law, leased  in conjunction with such a vessel), or an option to renew such a lease  or  a  similar  contractual  provision,  all  receipts   due   or consideration  given  or  contracted to be given for such property under and for the entire period of such lease,  option  to  renew  or  similar provision,  or combination of them, shall be deemed to have been paid or given and shall be subject to  tax,  and  any  such  tax  due  shall  be collected,  as  of the date of first payment under such lease, option to renew or similar provision, or combination of them, or as of the date of registration of such property with the commissioner of  motor  vehicles, whichever  is  earlier.  Notwithstanding  any inconsistent provisions of subdivision (b) of this section or of section eleven  hundred  seventeen of this article or of other law, for purposes of such a lease, option to renew  or  similar provision originally entered into outside this state, by a lessee (1) who was a  resident  of  this  state,  and  leased  such property  for  use  outside  the  state and who subsequently brings such property into this state for use here or (2) who was a  nonresident  and subsequently  becomes a resident and brings the property into this state for use here, any remaining receipts due or consideration  to  be  given after  such lessee brings such property into this state shall be subject to tax as if the lessee had entered into or exercised such lease, option to renew or similar provision, or combination  thereof,  for  the  first time  in  this  state  and  the  relevant  provisions of sections eleven hundred ten concerning imposition and computation of tax, eleven hundred eighteen concerning exemption from use  tax  for  tax  paid  to  another jurisdiction,   eleven  hundred  thirty-two  concerning  presumption  of taxability  and  conditions  for   registration   and   eleven   hundred thirty-nine  concerning refunds, of this article, shall be applicable to any sales or compensating use tax paid by the lessee before  the  lessee brought the property into this state, except to the extent that any such provision  is  inconsistent  with  a  provision of this subdivision. For purposes of this subdivision, (1) a lease for a term of one year or more shall include any lease for a shorter term which includes an  option  to renew  or other like provision (or more than one of such option or other provision) where the cumulative period that the lease, with  or  without such  option or provision, may be in effect upon exercise of such option or provision is one year or more and (2) receipts due and  consideration given  or contracted to be given under any such lease or other provision for excess mileage charges shall be subject to tax as and when  paid  or due.  (B)  Notwithstanding  any inconsistent provisions of this subdivision, with respect to a lease of a motor vehicle described in paragraph (A) of this subdivision for a term of one year or more (1)  which  includes  an indeterminate  number  of  options to renew or other similar contractual provisions or which includes thirty-six or more monthly options to renew beyond the initial term, and (2) under which lease the  lessee  of  such motor  vehicle  has  certified in the writing described in clause (i) of subparagraph (C) of paragraph two of subsection (h) of section  7701  of the  internal  revenue  code of 1986, under penalty of perjury, that the lessee intends that more than fifty percent of the use of  such  vehicle is  to  be  in  a  trade  or business of the lessee, all receipts due or consideration given or contracted to be given under such lease  for  the first  thirty-two  months, or the period of the initial term if greater, of such lease shall be deemed to have been paid or given  and  shall  be  subject  to  tax  in accordance with the provisions of this subdivision. For each such option to renew, or similar provision, or  combination  of them, exercised after the first thirty-two months, or the period of such initial  term,  if longer, of any such lease, tax due under this article shall be collected  and  paid  or  paid  over  without  regard  to  this subdivision.  (C)  Any receipts due or consideration given or contracted to be given under an option to renew a lease of a motor vehicle  described  in  this subdivision  or  similar  contractual provision, or combination of them, exercised as part of any such lease between the same lessor and the same lessee with respect to the same motor vehicle or  vehicles,  where  such lease  or  any  option  to  renew  such  a  lease  or  any other similar contractual  provision  was  subject  to  tax  in  accordance  with  the provisions  of this subdivision, shall not be subject to the tax imposed under the provisions of article twenty-eight-A of this chapter.  (j) (1) The tax required to be  prepaid  pursuant  to  section  eleven hundred  three of this article shall be computed by multiplying the base retail price by a tax rate of eight  percent  and  rounding  the  result thereof to the nearest whole cent per package.  (2) For purposes of this subdivision, the base retail price shall mean for  the  period  September first, nineteen hundred ninety-five, through August thirty-first, nineteen hundred ninety-six, one  dollar  for  each package of cigarettes containing ten cigarettes or fraction thereof, and two  dollars for each package of cigarettes containing twenty cigarettes or fraction thereof in excess of ten and, if  a  package  contains  more than  twenty  cigarettes,  the  base  retail price shall be increased by fifty cents for each five cigarettes or fraction thereof  in  excess  of twenty.  Effective  for  the twelve-month period commencing on the first day of September of each year,  the  base  retail  price  for  any  such package  shall be adjusted as follows: As soon as practicable after June first of each year, the base retail price in effect for the twelve-month period commencing on the immediately preceding September first shall  be multiplied  by  a  fraction,  the numerator of which is the total of the sums of the manufacturers' list price for a  carton  of  standard  brand cigarettes  containing  ten packages of twenty cigarettes and the amount of cigarette tax imposed by subdivision  one  of  section  four  hundred seventy-one of this chapter on such a carton of cigarettes, in effect on the  first  day of each month, for each of the twelve consecutive months ending with such month of June, and the  denominator  of  which  is  the total  of the sums of the manufacturers' list price for such a carton of cigarettes and the amount of cigarette tax imposed by subdivision one of section four hundred seventy-one of this chapter on  such  a  carton  of cigarettes,  in  effect  on the first day of each month, for each of the twelve  consecutive  months  ending  with  the  month  of  June  of  the immediately  preceding  year.  Provided,  however,  for  purposes of the adjustment to any  such  base  retail  price  required  for  the  period commencing  September  first, two thousand two, the denominator shall be such total with respect to the twelve consecutive months ending with the month of June, nineteen hundred ninety-seven.  The  manufacturers'  list price  for a carton of standard brand cigarettes containing ten packages of twenty cigarettes in effect on the first day  of  a  month  shall  be determined  by  calculating  a  weighted  average  of  each of the major manufacturer's list prices for such a carton of cigarettes in effect  on the  frist  day  of  such month, as such list prices are reported to the department by such manufacturers, in the department's  determination  of the cost of cigarettes under article twenty-A of this chapter, and using the  most recently published annual national market shares of such major manufacturers. The commissioner shall  cause  to  be  published  in  the  section  for miscellaneous notices in the state register, and give other appropriate  general  notice  of,  the  base  retail  price   adjustment calculation  and  the  resulting base retail price fixed by this section for  the  period  commencing  September  first  of  each  year beginning September  first,  nineteen  hundred  ninety-six,  no  later  than   the immediately   preceding   first  day  of  August.  The  calculation  and publication of the base retail price so  fixed  by  provisions  of  this section shall not be included within the definition of "rule" as defined in  paragraph  (a)  of subdivision two of section one hundred two of the state administrative procedure act. The base  retail  prices  determined pursuant  to this paragraph shall be rounded to the nearest one-tenth of one cent for each package containing ten cigarettes or fraction thereof, for each package containing twenty cigarettes and, if packages are  sold in excess of twenty cigarettes and stamps have been issued therefor, for each such package.  (k)  Receipts  subject  to tax under subdivision (a) of section eleven hundred five of this article on retail sales of motor fuel, diesel motor fuel  and  residual  petroleum  product,  and  consideration  given   or contracted  to  be  given for motor fuel, diesel motor fuel and residual petroleum product, the uses of which are subject to  tax  under  section eleven  hundred  ten of this article, shall be deemed to include any tax imposed on or with respect to motor fuel, diesel motor fuel or  residual petroleum product under article thirteen-A of this chapter.  (l)  (1)  Receipts  from the sale of mobile telecommunications service provided by a home service provider shall include  "charges  for  mobile telecommunications  services." Such term shall mean any charge by a home service provider to  its  mobile  telecommunications  customer  for  (A) commercial mobile radio service, and shall include property and services that  are  ancillary to the provision of commercial mobile radio service (such  as  dial  tone,  voice  service,  directory   information,   call forwarding, caller-identification and call-waiting), and (B) any service and property provided therewith.  (2) With respect to services or property described in subparagraph (B) of  paragraph  one  of  this  subdivision,  internet access service, any mobile telecommunications service which  the  mobile  telecommunications customer  originates  in a foreign country to the extent included in the fixed periodic charge, any  interstate  or  international  telephony  or telegraphy or telephone or telegraph service of whatever nature which is not  a voice service, and any property or service which is not telephony or telegraphy or telephone or telegraph service of  whatever  nature,  a home  service  provider  shall  collect  and  pay over tax, and a mobile telecommunications customer shall pay such tax,  on  receipts  from  any charge  that  is  aggregated  with  and not separately stated from other charges for mobile telecommunications  service.  Provided,  however,  if such  home service provider uses an objective, reasonable and verifiable standard for identifying each of the components of the charge for mobile telecommunications  service,  then  such  home  service   provider   may separately  account  for  and quantify the amount of each such component charge. If a home service provider chooses to so separately account  for and quantify and separately sells any such property or service, then the charge  for  such  property or service shall be based upon the price for such property or service as separately sold. If a home service  provider chooses  to  so  separately  account  for  and  quantify  and  does  not separately sell such property or  service,  then  the  charge  for  such property  or  service shall be based upon the prevailing retail price of comparable property or service sold separately  by  other  home  service providers. In any case, the charge for such property or service shall be reasonable   and  proportionate  to  the  total  charge  to  the  mobile  telecommunications customer. Such charges for such services or property, as the case may be, will not constitute receipts from charges for mobile telecommunications services subject to  tax  under  subdivision  (b)  of section  eleven  hundred  five  of this article. Nothing herein shall be construed to exempt from tax or subject  to  tax  any  such  service  or property otherwise subject to tax or exempt from tax under this article.  (3) (A) Any charge for a service or property billed by or for a mobile telecommunications  customer's  home service provider shall be deemed to be provided by such mobile telecommunications  customer's  home  service provider.  (B) Charges for mobile telecommunications service that are provided or deemed  to  be  provided  by a mobile telecommunications customer's home service provider shall be sourced to the taxing jurisdiction  where  the mobile  telecommunications  customer's  place of primary use is located, regardless of where the mobile  telecommunications  service  originates, terminates or passes through.  (m) Notwithstanding any provision of law to the contrary:  (1) The sales tax imposed by subdivision (a) of section eleven hundred five  of  this  article  and the compensating use tax imposed by section eleven hundred ten of this article, in regard to retail sales  of  motor fuel and diesel motor fuel, shall be eight cents per gallon.  (2) The sales and compensating use taxes imposed by subdivision (a) of section  eleven  hundred nine of this article, in regard to retail sales of motor fuel and diesel motor fuel, shall be three-quarters of one cent per gallon.  (3) Paragraph one of this subdivision shall not apply to the sales and compensating use taxes imposed by  subdivision  (a)  of  section  eleven hundred  seven  of  this article in regard to retail sales of motor fuel and diesel motor fuel. However, the legislative body of a city in  which the taxes imposed by such section eleven hundred seven are in effect, by local  law, ordinance, or resolution in exactly the form prepared by the commissioner, may elect that such taxes, in regard to  retail  sales  of motor  fuel  and  diesel motor fuel, shall be computed, as determined by the commissioner, at a rate of cents per gallon, rounded to the  nearest cent,  equal to two or three dollars, as determined by the municipality, multiplied by the percentage rate of such taxes within the municipality.  (4) Paragraph one of this subdivision shall not apply to the sales and compensating use taxes imposed by a local law, ordinance  or  resolution of  a municipality pursuant to the authority of subpart B of part one of article twenty-nine of this chapter, in regard to retail sales of  motor fuel and diesel motor fuel. The legislative body of such a municipality, by  local  law,  ordinance or resolution in exactly the form prepared by the commissioner, may elect that its sales and compensating  use  taxes, in  regard to the retail sale of motor fuel and diesel motor fuel, shall be computed, as determined by the commissioner, at a rate of  cents  per gallon,  rounded  to the nearest cent, equal to two or three dollars, as determined by the municipality, multiplied by  the  percentage  rate  of such taxes within the municipality.  (5)(i)  Prior  to the start of any sales tax quarter, the commissioner shall apply the local percentage sales tax rate of each county  or  city that  has elected a cents per gallon rate pursuant to paragraph three or four of this subdivision to the average price of motor fuel  and  diesel motor  fuel,  not including sales tax and the motor fuel excise tax, for three consecutive months beginning four months prior to the start of any sales tax quarter. If the result of this computation is  less  than  the elected cents per gallon rate for a county or city, the cents per gallon rate  for  such  county  or  city  shall be adjusted to be equal to such computation, rounded to the  nearest  one  cent.  Such  rates  shall  be  published by the commissioner and effective in the next succeeding sales tax quarter.  (ii)  Prior  to  the  start of any sales tax quarter, the commissioner shall also adjust in a like manner the cents per gallon rates prescribed by paragraphs one and two of this subdivision based on percentage  sales tax  rates  of four percent and three-eighths of a percent respectively. Provided, however,  adjustments  made  to  the  cents  per  gallon  rate prescribed  by paragraph two of this subdivision shall be rounded to the nearest one-tenth of one cent.  (6) A local law,  ordinance  or  resolution  making  or  revoking  the election  made  pursuant  to paragraph three or four of this subdivision must go into effect in accordance with the  provisions  of  subdivisions (d) and (e) of section twelve hundred ten of this chapter.  (7)  Notwithstanding  any  foregoing  provision of this subdivision or other law to the contrary, this subdivision, subdivision (h) of  section eleven hundred nine of this part and subdivision (n) of section eighteen hundred seventeen of this chapter, section three hundred ninety-two-i of the  general  business  law  and  other provisions of law which refer or relate to this subdivision shall apply only to (A) motor fuel or  diesel motor  fuel  sold  for  use  directly and exclusively in the engine of a motor vehicle and (B) motor  fuel  or  diesel  motor  fuel,  other  than water-white kerosene sold exclusively for heating purposes in containers of  no  more  than  twenty  gallons,  sold  by a retail gas station. For purposes of this subdivision and such other provisions of  law,  "retail gas  station"  shall  mean  a  filling station where such fuel is stored primarily for sale by delivery directly  into  the  ordinary  fuel  tank connected  with  the  engine  of  a  motor vehicle to be consumed in the operation of such motor vehicle or where such fuel is  stored  primarily for sale by delivery directly into the ordinary fuel tank connected with the  engine  of a vessel to be consumed in the operation of such vessel. The commissioner is hereby authorized to require the use of certificates or other documents,  and  procedures  related  thereto,  to  effect  the purposes of this subdivision; and any such certificate or other document so required by the commissioner for a purchaser to tender to a vendor to purchase  such fuel subject to tax on the reduced base established by or pursuant to this  subdivision  is  hereby  deemed  to  be  an  exemption certificate  as  such  term is used in subdivision (c) of section eleven hundred thirty-two of this article and as  if  the  provisions  of  such subdivision  (c)  referred  to  such  a certificate or document required pursuant to this subdivision.   * (n) The sales and compensating use taxes imposed by this article and pursuant to the authority of article twenty-nine of this chapter on  B20 shall  be  imposed at eighty percent of the rate of the cents per gallon taxes described in subdivision (m) of this section. However, if a county or city does not make the cents per gallon election authorized  by  such subdivision  (m),  the  taxes of such county or city imposed pursuant to the authority of such article twenty-nine or the taxes imposed in a city of one million or more by section eleven hundred seven of  this  article shall  be imposed on eighty percent of the receipts from the retail sale of or the consideration given or contracted to be given for, or for  the use of, such B20.   * NB Repealed September 1, 2026  (o) (1) If a transportation service subject to tax under paragraph ten of  subdivision  (c)  of  section  eleven  hundred  five of this part is provided by vehicle, and the owner or lessor of the  vehicle  leases  or rents the vehicle to an unrelated person who provides the transportation service,  such  as  a  limousine  driver who drives a limousine owned by another person, then (i) the owner or lessor is deemed  to  provide  the  transportation service during the day or other period that the unrelated person uses the vehicle to provide the service, (ii) the owner or lessor is  deemed  to  be  the  vendor of the service provided by the unrelated person,  (iii)  the  tax  imposed  by such paragraph ten is deemed to be imposed on the unrelated person, (iv) the owner or  lessor,  as  vendor, must  collect  the  tax  from  the  unrelated person, based on the local jurisdiction where the driver takes delivery of the vehicle and pay over such tax required to be collected with its returns required to be  filed under  this  article,  and (v) the receipts subject to the tax equal two hundred percent of the amount that  the  owner  or  lessor  charges  the unrelated  person  for  the  use  of the vehicle during the day or other period, including any charge related to insurance, maintenance, repairs, fuel, the use, rental or economic  value  of  any  vehicle  or  business license,  and  any  other  charge  made  by  the  owner or lessor to the unrelated person for the day or other period, regardless of whether  the unrelated  person  transported, carried or conveyed any person or earned any fares with that vehicle during that day or other period.  (2) Notwithstanding any law to the contrary:  (i)  Any  municipality  or  public  corporation  that  establishes  or regulates  black  car,  limousine  or  other  vehicle service fares must adjust those fares to include therein the tax imposed by  paragraph  ten of  subdivision  (c) of section eleven hundred five of this part and the taxes imposed by other  sections  of  this  part  and  pursuant  to  the authority  of  article twenty-nine of this chapter on the services taxed by such paragraph ten and must require that any meters or other  devices in  the  vehicles or otherwise that measure fares be adjusted to include these taxes, as the same are from time to time imposed and as the  rates of those taxes may change.  (ii)  Any person that sells the services described in paragraph one of this subdivision must adjust any meters or other devices in the vehicles or otherwise that measure fares so that they timely reflect  any  change in  the  rates  of  the  taxes  described  in  subparagraph  (i) of this paragraph.  Neither  the  failure  of  a  municipal  or   other   public corporation  to adjust fares nor the failure of any person to adjust the meters or devices will relieve any person from the obligation to collect and pay or pay over such taxes timely, at the correct combined rate.  (3) For purposes of  this  subdivision,  "unrelated  person"  means  a person  other  than  a related person as defined for purposes of section fourteen of this chapter.  (p) Notwithstanding any contrary provision of law: (1) The  sales  tax imposed  by  subdivision (a) of section eleven hundred five of this part on receipts from the retail sale of a new modular home module  shall  be computed  on  the sum of (i) sixty percent of the vendor's receipts from the sale of the module, excluding any  charges  by  the  vendor  to  the purchaser  for  shipping or delivery, as described in paragraph three of subdivision (b) of section eleven hundred one of this article  and  (ii) one  hundred  percent  of any charges by the vendor to the purchaser for shipping or delivery of the modules as described in such paragraph three of subdivision (b) of section eleven hundred one.  (2) The compensating use tax imposed by clause (A) of subdivision  (a) of  section  eleven hundred ten of this part on the use of a new modular home module by its purchaser shall be computed on the sum of  (i)  sixty percent  of  the  amount  described  in  subdivision (b) of such section eleven hundred ten, excluding any charges for shipping  or  delivery  as described  in  paragraph  three  of  subdivision  (b)  of section eleven hundred one of this article, and (ii) one hundred percent of any charges for shipping or  delivery  as  described  in  such  paragraph  three  of subdivision (b) of section eleven hundred one.  (3)  The  compensating  use  tax  imposed  by subclause (i) or (ii) of clause (B) of subdivision (a) of section eleven hundred ten of this part on the use of modular home modules by their manufacturer to be installed at a building site to  construct  a  modular  home  that  constitutes  a capital improvement shall be computed on the sum of (i) sixty percent of the  consideration  for  which the manufacturer conveys those modules to the  modular  home  buyer  on  an   installed   basis,   excluding   any consideration  for  shipping or delivery as described in paragraph three of subdivision (b) of section eleven hundred one of  this  article,  and excluding the consideration for the installation of those modules at the building  site  as  a  modular  home  if  such  installation  charge  is reasonable and stated separately from every other charge, and  (ii)  one hundred  percent of any charges for shipping or delivery as described in such paragraph three of subdivision (b) of section eleven hundred one.  (q)  (1)  The  exclusions  from  the  definition  of  retail  sale  in subparagraph (iv) of paragraph four of subdivision (b) of section eleven hundred one of this article shall not apply to transfers, distributions, or contributions of a vessel, except where, in the case of the exclusion in  subclause  (I)  of  clause  (A)  of  such subparagraph (iv), the two corporations to be merged or consolidated  are  not  affiliated  persons with   respect   to  each  other.  For  purposes  of  this  subdivision, corporations are affiliated persons with respect to each other where (i) more than five percent of their combined shares are owned by members  of the  same  family,  as  defined  by  paragraph four of subsection (c) of section two hundred sixty-seven of the internal revenue code of nineteen hundred eighty-six; (ii)  one  of  the  corporations  has  an  ownership interest  of  more than five percent, whether direct or indirect, in the other; or (iii) another person or a group  of  other  persons  that  are affiliated persons with respect to each other hold an ownership interest of  more  than  five percent, whether direct or indirect, in each of the corporations.  (2) Notwithstanding any contrary provision of law, in relation to  any transfer,  distribution, or contribution of a vessel that qualifies as a retail sale as a result of paragraph one of this subdivision, the  sales tax  imposed  by  subdivision (a) of section eleven hundred five of this part shall be computed based on the price at which the seller  purchased the  tangible  personal  property,  provided  that  where  the seller or purchaser affirmatively shows that the seller owned the property for six months prior  to  making  the  transfer,  distribution  or  contribution covered by paragraph one of this subdivision, such vessel shall be taxed on  the  basis  of the current market value of the vessel at the time of that transfer, distribution, or contribution. For the  purposes  of  the prior  sentence, "current market value" shall not exceed the cost of the vessel. See subdivision (b) of this section for a similar  rule  on  the computation of any compensating use tax due under section eleven hundred ten of this part on such transfers, distributions, or contributions.  (3)  A  purchaser  of  a  vessel  covered  by  paragraph  one  of this subdivision will be entitled to a refund or credit against the sales  or compensating  use  tax  due  as a result of a transfer, distribution, or contribution of such vessel in the amount of any sales or use  tax  paid to  this state or any other state on the seller's purchase or use of the vessel so transferred, distributed or contributed, but not to exceed the tax due on the transfer, distribution, or contribution of the vessel  or on  the  purchaser's  use  in  the  state  of the vessel so transferred, distributed or contributed. An application for a refund or credit  under this  subdivision  must  be  filed  and  shall  be  in  such form as the commissioner may prescribe. Where an application  for  credit  has  been filed,  the  applicant  may  immediately  take such credit on the return  which is due coincident with or immediately subsequent to the  time  the application  for  credit  is filed. However, the taking of the credit on the return shall be deemed to be part of  the  application  for  credit. Provided  that  the  commissioner  may,  in  his  or  her discretion and notwithstanding any other law, waive the application requirement for any or all classes of persons where the amount of the credit  or  refund  is equal to the amount of the tax due from the purchaser. The provisions of subdivisions  (a), (b), and (c) of section eleven hundred thirty-nine of this article shall apply to applications for refund or credit under this subdivision. No interest shall be allowed or paid on any refund made  or credit  allowed  under  this  subdivision.  If  a refund is granted or a credit allowed under this paragraph, the seller or purchaser  shall  not be  eligible  for  a  refund  or credit pursuant to subdivision seven of section eleven hundred eighteen of this article with regard to the  same purchase or use.  (r)  (1)  In  regard  to the collection of sales tax on occupancies by room remarketers, when occupancy is provided for a single  consideration with  property, services, amusement charges, or any other items, whether or  not  such  other  items  are  taxable,  the  rent  portion  of   the consideration  for such transaction shall be computed as follows: either the total consideration received by the room remarketer multiplied by  a fraction,  the numerator of which shall be the consideration payable for the occupancy by the room remarketer and the denominator of which  shall be  such  consideration payable for the occupancy plus the consideration payable by the remarketer for the other items  being  sold,  or  by  any other  method  as  may  be  authorized  by the commissioner. If the room remarketer fails to separately state the tax on the rent so computed  on a sales slip, invoice, receipt, or other statement given to the occupant in  the  manner prescribed by paragraph two of this subdivision or fails to maintain records of the prices of all  components  of  a  transaction covered  by this paragraph, the entire consideration shall be treated as rent subject to tax under paragraph one of subdivision  (e)  of  section eleven  hundred  five of this part. Nothing herein shall be construed to subject to tax or exempt from tax any service or property  or  amusement charge  or other items otherwise subject to tax or exempt from tax under this article or pursuant to the authority of article twenty-nine of this chapter. A room remarketer's records of the  consideration  payable  for all  components  of  a transaction covered by this paragraph are records required to be maintained for purposes of  subdivision  (a)  of  section eleven hundred thirty-five of this article.  (2)  In  regard  to the collection of sales tax on occupancies by room remarketers, including a transaction described in paragraph one of  this subdivision, the requirements of the second sentence of paragraph one of subdivision  (a)  of  section  eleven hundred thirty-two of this article shall be deemed satisfied if the remarketer gives the customer  a  sales slip,  invoice,  receipt,  or  other  statement of the price ("invoice") prior to the customer's completion of his or her occupancy, on which the amount of tax due under this article and pursuant to  the  authority  of article  twenty-nine of this chapter is stated. The room remarketer must keep either a copy of the invoice as  required  by  subdivision  (a)  of section  eleven  hundred  thirty-five  of  this  article,  or electronic records that accurately reflect the information that is on  the  invoice provided to the customer.  (3)  In regard to the reporting and the payment to the commissioner by room remarketers of sales tax due on  occupancies,  subdivision  (a)  of section  eleven  hundred  thirty-seven  of this article shall be read to require a room remarketer to report such sales  tax  due,  including  in regard  to a transaction described in paragraph one of this subdivision,  on the return due for the filing period in which the occupancy ends and, at the time of filing such return, to pay to the commissioner the  total amount described by such subdivision (a).