NY Tax L § 1105 (2021)
2021 New York Laws TAX - Tax Article 28 - Sales and Compensating Use Taxes Part 2 - Imposition of Taxes 1105 - Imposition of Sales Tax.

§  1105.  Imposition  of  sales tax. On and after June first, nineteen hundred seventy-one, there is hereby imposed and there shall be  paid  a tax of four percent upon:  (a) The receipts from every retail sale of tangible personal property, except as otherwise provided in this article.  (b)  (1) The receipts from every sale, other than sales for resale, of the following: (A) gas, electricity, refrigeration and steam,  and  gas, electric,  refrigeration and steam service of whatever nature, including the transportation, transmission or distribution of gas or  electricity, even  if sold separately; (B) telephony and telegraphy and telephone and telegraph service of whatever nature except interstate and international telephony and telegraphy and telephone and telegraph service and  except any  telecommunications  service the receipts from the sale of which are subject to tax under paragraph two of this subdivision; (C) a  telephone answering service; and (D) a prepaid telephone calling service.  (2)  The receipts from every sale of mobile telecommunications service provided by a home service provider, other than sales for  resale,  that are  voice  services,  or  any  other  services  that  are taxable under subparagraph (B) of paragraph one of this subdivision, sold for a  fixed periodic  charge (not separately stated), whether or not sold with other services.  (3) The tax  imposed  pursuant  to  this  subdivision  is  imposed  on receipts  from  charges for intrastate mobile telecommunications service of whatever  nature  in  any  state  if  the  mobile  telecommunications customer's place of primary use is in this state.  (4)  (A)  For the purpose of subparagraph (B) of paragraph one of this subdivision, receipts from the sale of telephony  or  telephone  service constituting the actual delivery of telephony or telephone service under a  prepaid  telephone calling service (for instance, when the receipt is represented by a debit to a prepaid account) shall be excluded from  the receipts subject to tax under such subparagraph; and (B) for purposes of subparagraph (B) of paragraph one and paragraph two of this subdivision, a  particular  sale  of  telephony or telephone service to a vendor that resells such telephony or telephone service as a component of a  prepaid telephone calling service shall be deemed a sale for resale of telephony or telegraph service.  (c)  The receipts from every sale, except for resale, of the following services:  (1)  The  furnishing  of  information  by  printed,  mimeographed   or multigraphed  matter  or by duplicating written or printed matter in any other  manner,  including  the  services  of  collecting,  compiling  or analyzing  information  of  any  kind  or  nature and furnishing reports thereof to other persons, but excluding the  furnishing  of  information which is personal or individual in nature and which is not or may not be substantially  incorporated  in  reports furnished to other persons, and excluding the services of advertising or other agents, or other  persons acting  in  a  representative capacity, and information services used by newspapers, electronic news services, radio broadcasters and  television broadcasters  in the collection and dissemination of news, and excluding meteorological services.  (2)  Producing,  fabricating,  processing,  printing   or   imprinting tangible  personal  property,  performed  for  a  person who directly or indirectly furnishes the tangible personal property,  not  purchased  by him for resale, upon which services are performed.  (3) Installing tangible personal property, excluding a mobile home, or maintaining,   servicing   or   repairing  tangible  personal  property, including a mobile home, not held for sale  in  the  regular  course  of business, whether or not the services are performed directly or by means  of coin-operated equipment or by any other means, and whether or not any tangible  personal  property  is  transferred  in conjunction therewith, except:  (i) such services rendered by an individual who is engaged directly by a  private home owner or lessee in or about his residence and who is not in a regular trade or business offering his services to the public; and  (ii) any receipts from laundering, dry-cleaning,  tailoring,  weaving, pressing, shoe repairing and shoe shining; and  (iii)  for  installing property which, when installed, will constitute an addition or capital improvement to real property, property  or  land, as  the  terms  real  property, property or land are defined in the real property tax  law  as  such  term  capital  improvement  is  defined  in paragraph  nine of subdivision (b) of section eleven hundred one of this chapter; and  (iv) such services rendered with respect  to  commercial  vessels  and property  used  by  or  purchased  for  the use of such vessels, as such vessels and property are specified in paragraph eight of subdivision (a) of section eleven hundred fifteen of this article; and  (v) such  services  rendered  with  respect  to  commercial  aircraft, machinery  or equipment and property used by or purchased for the use of such aircraft as such aircraft, machinery or equipment, and property are specified in paragraph twenty-one of subdivision (a) of  section  eleven hundred fifteen of this article; and  (vi) such services rendered with respect to tangible personal property for  use  or consumption predominantly either in the production for sale of tangible personal property  by  farming  or  in  a  commercial  horse boarding  operation,  or  in both, as such tangible personal property is specified in paragraph six of subdivision (a) of section eleven  hundred fifteen of this article.  (vii)  such  services  rendered  with  respect  to fishing vessels and property used by or purchased for  such  vessels  as  such  vessels  are specified  in paragraph twenty-four of subdivision (a) of section eleven hundred fifteen of this article.  (viii) such services rendered with respect to railroad  rolling  stock primarily  engaged  in  carrying  freight  in  intrastate, interstate or foreign commerce, but not  including  any  charge  for  parts  or  other tangible  personal  property whether such property has become a physical component part of the property upon which the services are performed  or has  been  transferred  to  the purchaser of the services in conjunction with the performance of the services subject to the tax.  (ix) such services rendered with respect to tangible property used  or consumed directly and predominantly in the production for sale of gas or oil  by  manufacturing,  processing,  generating,  assembling, refining, mining, or extracting.  (x) such services rendered  with  respect  to  property  described  in paragraph  twelve-a of subdivision (a) of section eleven hundred fifteen of this article.   * (xi) Such services rendered with respect to  property  described  in paragraph twelve-b of section eleven hundred fifteen of this article.   * NB Expired September 1, 2003   Provided,  however,  that  nothing  contained  in this paragraph three shall be construed to exclude from tax under  this  paragraph  or  under subdivision  (b) of this section any charge, made by a person furnishing service subject to tax  under  subdivision  (b)  of  this  section,  for installing  property  at  the  premises of a purchaser of such a taxable service for use in connection with such service.  (4) Storing all tangible personal property not held for  sale  in  the regular  course  of  business  and  the  rental of safe deposit boxes or similar space.  (5)  Maintaining,  servicing  or  repairing real property, property or land, as such terms are defined in the real property  tax  law,  whether the services are performed in or outside of a building, as distinguished from  adding  to or improving such real property, property or land, by a capital improvement as such  term  capital  improvement  is  defined  in paragraph  nine of subdivision (b) of section eleven hundred one of this article, but excluding (i) services rendered by an individual who is not in a regular trade or business offering his services to the public, (ii) services rendered directly with respect to real  property,  property  or land  used  or consumed directly and predominantly in the production for sale of gas or oil by manufacturing, processing, generating, assembling, refining, mining, or extracting, (iii) services rendered with respect to real property, property or land used or consumed predominantly either in the production of tangible personal property, for sale, by farming or in a commercial horse boarding operation, or in both and (iv)  services  of removal  of  waste  material  from  a  facility  regulated as a transfer station or construction and demolition debris processing facility by the department  of  environmental  conservation,  provided  that  the  waste material to be removed was not generated by the facility.  (6)  Providing  parking,  garaging  or  storing  for motor vehicles by persons operating a garage  (other  than  a  garage  which  is  part  of premises  occupied  solely  as  a  private  one or two family dwelling), parking lot or other place of business  engaged  in  providing  parking, garaging or storing for motor vehicles provided, however, this paragraph shall  not  apply  to  such  facilities  owned  and operated by a public corporation, as defined by section sixty-six of the general construction law, other than a public benefit corporation, as defined by such section sixty-six, created by interstate compact  or  at  least  half  of  whose members  are appointed by the governor, or any agency or instrumentality of a municipal corporation or district corporation as  defined  by  such section sixty-six. Provided, however, receipts for such services paid to a  homeowner's association by its members or receipts paid by members of a homeowner's association to a person leasing the parking facility  from the  homeowner's  association shall not be subject to the tax imposed by this  paragraph.  For  purposes  of  this   paragraph,   a   homeowner's association  is  an  association  (including  a  cooperative  housing or apartment  corporation)  (i)  the  membership  of  which  is   comprised exclusively  of  owners  or  residents  of  residential  dwelling units, including owners of units in a condominium, and  including  shareholders in  a cooperative housing or apartment corporation, where such units are located in a defined geographical area such as a housing development  or subdivision  and  (ii)  which  owns or operates a garage, parking lot or other place of  business  engaged  in  providing  parking,  garaging  or storing  for motor vehicles located in such area for use (whether or not exclusive) by such owners or residents.  (7) Interior decorating and designing services,  (whether  or  not  in conjunction  with the sale of tangible personal property), by whomsoever performed, including interior decorators and  designers,  architects  or engineers;  notwithstanding  the  foregoing,  such  services  shall  not include services which consist  of  the  practice  of  architecture,  as defined  in  section  seventy-three hundred one of the education law, or the practice of engineering, as defined in section  seventy-two  hundred one  of the education law, if the services are performed by an architect or engineer having a license or permit under the education law.  (8) Protective and detective services, including, but not limited  to, all services provided by or through alarm or protective systems of every nature,  including,  but  not  limited  to, protection against burglary, theft, fire, water damage or any malfunction of industrial processes  or any  other  malfunction  of  or damage to property or injury to persons, detective agencies, armored car services and guard, patrol and  watchman services  of every nature other than the performance of such services by a port watchman licensed  by  the  waterfront  commission  of  New  York harbor,  whether  or  not  tangible  personal property is transferred in conjunction therewith.  (9) (i) The furnishing or provision of an entertainment service or  of an  information  service  (but not an information service subject to tax under paragraph one of this subdivision), which is furnished,  provided, or  delivered  by  means  of  telephony  or  telegraphy  or telephone or telegraph service (whether intrastate or interstate) of whatever nature, such as entertainment or information services provided  through  800  or 900  numbers  or  mass  announcement services or interactive information network services. Provided, however, that in  no  event  (i)  shall  the furnishing  or  provision  of an information service be taxed under this paragraph unless  it  would  otherwise  be  subject  to  taxation  under paragraph  one  of  this  subdivision  if  it were furnished by printed, mimeographed or multigraphed matter or by duplicating written or printed matter in any other  manner  nor  (ii)  shall  the  provision  of  cable television service to customers be taxed under this paragraph.  (ii)  Notwithstanding  the  rate  and  date  set  forth in the opening undesignated paragraph of this section and notwithstanding  the  opening undesignated  paragraph  of  this  subdivision,  on  and after September first, nineteen hundred ninety-three,  in  addition  to  any  other  tax imposed  under  this  section,  and  in addition to any other tax or fee imposed under any other provision of law, there is  hereby  imposed  and there  shall  be paid an additional tax at the rate of five percent upon the receipts which are subject to tax under  subparagraph  (i)  of  this paragraph  on  the  furnishing  or  provision  of  an  entertainment  or information service which is received by the customer exclusively in  an aural manner. Such additional tax shall not be imposed by section eleven hundred  seven,  eleven  hundred  eight  or  eleven hundred nine of this article and shall not be included  among  the  taxes  authorized  to  be imposed  pursuant  to  the  authority  of  article  twenty-nine  of this chapter.  (10) Transportation service, whether  or  not  any  tangible  personal property  is  transferred  in  conjunction  therewith, and regardless of whether the charge is paid in this state or out of state so long as  the service is provided in this state.   Wages,  salaries  and  other  compensation  paid  by an employer to an employee for  performing  as  an  employee  the  services  described  in paragraphs  (1)  through  (9)  of  this subdivision (c) are not receipts subject to the taxes imposed under such subdivision.  (d) (i) The receipts from every sale, other than sales for resale,  of beer,  wine  or  other  alcoholic  beverages  or  any other drink of any nature, or from every sale, other than sales for  resale,  of  food  and drink  of  any  nature or of food alone, when sold in or by restaurants, taverns or other establishments in this state, or by caterers, including in the amount of such receipts  any  cover,  minimum,  entertainment  or other  charge  made to patrons or customers (except those receipts taxed pursuant to subdivision (f) of this section):  (1) in all instances where the sale is for consumption on the premises where sold;  (2) in those instances where the vendor or any person  whose  services are  arranged for by the vendor, after the delivery of the food or drink by or on behalf of the vendor for consumption off the  premises  of  the vendor,  serves  or  assists  in serving, cooks, heats or provides other services with respect to the food or drink; and  (3)  in  those  instances  where  the  sale  is made through a vending machine that is activated by use of coin, currency, credit card or debit card (except the sale of drinks in a heated state made  through  such  a vending  machine)  or is for consumption off the premises of the vendor, except where food (other than sandwiches) or drink or both are (A)  sold in  an  unheated  state  and,  (B)  are  of  a  type  commonly  sold for consumption off the  premises  and  in  the  same  form  and  condition, quantities  and packaging, in establishments which are food stores other than those principally engaged in selling foods prepared and ready to be eaten.  (ii) The tax imposed by this subdivision shall not apply to:  (A) food or drink which is sold to an air line for  consumption  while in flight;  (B) food or drink sold to a student of a nursery school, kindergarten, elementary  or  secondary school at a restaurant or cafeteria located on the premises of such a school, or food or drink, other than beer,  wine, or  other  alcoholic  beverages,  sold  at a restaurant, tavern or other establishment located on the premises of  a  college,  university  or  a school  (other  than  a  nursery  school,  kindergarten,  elementary  or secondary school) to a student enrolled therein who purchases such  food or  drink  under  a contractual arrangement whereby the student does not pay cash at the time he is  served,  provided  the  school,  college  or university  described  in  this  subparagraph  is  operated by an exempt organization described in subdivision  (a)  of  section  eleven  hundred sixteen,  or  is  created,  incorporated, registered, or licensed by the state legislature or pursuant to the education law or the regulations of the commissioner of education, or is incorporated by the regents of  the university of the State of New York or with their consent or the consent of  the  commissioner  of  education  as provided in section two hundred sixteen of the education law; and  (C) Sales by  a  brewery  licensed  under  section  fifty-one  of  the alcoholic beverage control law, or a farm brewery licensed under section fifty-one-a  of  such  law,  of  no  more  than four samples of beer not exceeding four fluid ounces each, and each sample shall be  a  different beer  than  the  others.  Only  a  customer's first purchase during each calendar day  at  each  licensed  entity  shall  be  exempt  under  this subparagraph.  (e)  (1) The rent for every occupancy of a room or rooms in a hotel in this state, except that  the  tax  shall  not  be  imposed  upon  (i)  a permanent  resident, or (ii) where the rent is not more than at the rate of two dollars per day.  (2) Except as provided in subdivision (r) of  section  eleven  hundred eleven   of  this  part,  when  occupancy  is  provided,  for  a  single consideration, with property, services, amusement charges, or any  other items,  the  separate  sale  of  which  is not subject to tax under this article, and the rent paid for such occupancy does not qualify  for  the exemption  in subdivision (kk) of section eleven hundred fifteen of this article, the entire consideration shall be treated as  rent  subject  to tax  under  paragraph  one  of this subdivision; provided, however, that where the amount of the rent for occupancy is stated separately from the price of such property, services, amusement charges, or other items,  on any sales slip, invoice, receipt, or other statement given the occupant, and  such  rent is reasonable in relation to the value of such property,  services, amusement charges or other items, only such separately  stated rent will be subject to tax under paragraph one of this subdivision.  (f)  (1) Any admission charge where such admission charge is in excess of ten cents to or for the use of any place of amusement in  the  state, except charges for admission to combative sports which charges are taxed under  any  other  law  of  this  state,  or  dramatic  or  musical arts performances, or live circus performances, or motion  picture  theaters, and  except  charges to a patron for admission to, or use of, facilities for sporting activities in which such patron is  to  be  a  participant, such  as  bowling  alleys  and swimming pools. For any person having the permanent use or possession of a box or seat or a lease  or  a  license, other  than  a season ticket, for the use of a box or seat at a place of amusement, the tax shall be upon the amount for which a similar  box  or seat is sold for each performance or exhibition at which the box or seat is used or reserved by the holder, licensee or lessee, and shall be paid by the holder, licensee or lessee.  (2)  (i) The dues paid to any social or athletic club in this state if the dues of an active annual member, exclusive of  the  initiation  fee, are  in excess of ten dollars per year, and on the initiation fee alone, regardless of the amount of dues, if such initiation fee is in excess of ten dollars. Where the tax  on  dues  applies  to  any  such  social  or athletic club, the tax shall be paid by all members, other than honorary members,  thereof  regardless  of the amount of their dues, and shall be paid on all dues or initiation fees for a period commencing on or  after August  first,  nineteen  hundred  sixty-five.  In  the  case  of a life membership, the tax shall be upon the amount  paid  as  life  membership dues,  however,  a life member, other than an honorary member, paying an annual sales tax, based on the dues of an active  annual  member,  shall continue  such payments until the total amount of such tax paid is equal to the amount of tax that would have otherwise been due had the tax been imposed at the time such paid life membership has been purchased and  at the then applicable rate.  (ii)  Dues  and  initiation  fees  paid  to the following shall not be subject to the tax imposed by this paragraph:  (A) A fraternal society, order  or  association  operating  under  the lodge system;  (B) Any fraternal association of students of a college or university;  (C)  A  homeowners  association.  For purposes of this subparagraph, a homeowners  association  is  an  association  (including  a  cooperative housing  or  apartment  corporation)  (I)  the  membership  of  which is comprised exclusively of owners or  residents  of  residential  dwelling units,  including  owners  of  units  in  a  condominium,  and including shareholders in a cooperative housing or  apartment  corporation,  where such  units are located in a defined geographical area such as a housing development or subdivision and (II) which operates  social  or  athletic facilities  located  in  such area for use (whether or not exclusive) by such owners or residents.  (3) The amount paid as charges of a  roof  garden,  cabaret  or  other similar place in the state.