NY Tax L § 1119 (2021)
2021 New York Laws TAX - Tax Article 28 - Sales and Compensating Use Taxes Part 3 - Exemptions 1119 - Enacted Without Section Heading.

§  1119.  (a)  Subject  to the conditions and limitations provided for herein, a refund or credit shall be allowed for a tax paid  pursuant  to subdivision (a) of section eleven hundred five or section eleven hundred ten  (1)  on  the  sale  or  use  of  tangible  personal property if the purchaser or user, in the performance of a contract, later  incorporates that  tangible personal property into real property located outside this state, (2) on the sale or use of tangible personal property purchased in bulk, or any portion thereof, which  is  stored  and  not  used  by  the purchaser  or  user  within  this state if that property is subsequently reshipped by such purchaser or user to a point outside  this  state  for use  outside  this  state,  (3) on the sale to or use by a contractor or subcontractor of tangible personal property if that property is used  by him  solely  in the performance of a pre-existing lump sum or unit price construction contract, (4) on the sale  or  use  within  this  state  of tangible personal property, not purchased for resale, if the use of such property  in  this  state  is  restricted  to  fabricating such property (including incorporating it into or assembling it  with  other  tangible personal property), processing, printing or imprinting such property and such  property  is  then  shipped  to a point outside this state for use outside this state, or (6) on the sale  of  tangible  personal  property purchased   for   use   in  constructing,  expanding  or  rehabilitating industrial or commercial real property (other than property used  or  to be  used exclusively by one or more registered vendors primarily engaged in the retail sale of tangible personal property)  located  in  an  area designated  as  an  empire  zone  pursuant  to article eighteen-B of the general municipal law, but only to the extent that such property becomes an integral component part of the real property.  (For  the  purpose  of clause (3) of the preceding sentence, the term "pre-existing lump sum or unit  price  construction  contract"  shall  mean  a  contract  for  the construction of improvements to real property  under  which  the  amount payable  to  the  contractor or subcontractor is fixed without regard to the costs incurred by him in the performance thereof, and which (i)  was irrevocably  entered  into  prior  to  the date of the enactment of this article or the enactment of a law increasing the  rate  of  tax  imposed under   this  article,  or  (ii)  resulted  from  the  acceptance  by  a governmental agency of a bid accompanied by a bond or other  performance guaranty  which was irrevocably submitted prior to such date.) Where the tax on the sale or use of such tangible personal property has been  paid to  the  vendor,  to  qualify  for  such refund or credit, such tangible personal property must be incorporated into real property as required in clause (1) above, reshipped as required in clause (2) above, used in the manner described in clauses (3), (4) and (6) above  within  three  years after  the date such tax was payable to the tax commission by the vendor pursuant to section eleven hundred thirty-seven. Where the  tax  on  the sale or use of such tangible personal property was paid by the applicant for  the credit or refund directly to the tax commission, to qualify for such  refund  or  credit,  such  tangible  personal  property  must   be incorporated  into  real  property  as  required  in  clause  (1) above, reshipped as required in clause (2) above, used in the manner  described in clauses (3), (4) and (6) above within three years after the date such tax was payable to the tax commission by such applicant pursuant to this article.  An application for a refund or credit pursuant to this section must  be  filed  with  such  commission  within  the  time  provided  by subdivision  (a) of section eleven hundred thirty-nine. Such application shall be in such form as the tax  commission  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 that he files his application for  credit. However, the taking of the credit on the return shall be  deemed to  be  part  of  the application for credit and shall be subject to the provisions in respect to  applications  for  credit  in  section  eleven hundred thirty-nine as provided in subdivision (e) of such section. With respect  to  a  sale  or  use  described  in  clause  (3)  above where a pre-existing  lump  sum  or  unit  price   construction   contract   was irrevocably  entered  into  prior  to  the date of the enactment of this article  or  the  bid  accompanied  by  the  performance  guaranty   was irrevocably submitted to the governmental agency prior to such date, the purchaser  or  user  shall be entitled to a refund or credit only of the amount by which the tax on such sale or use imposed under  this  article plus  any tax imposed under the authority of article twenty-nine exceeds the amount computed by applying against such sale or use the local  rate of  tax, if any, in effect at the time such contract was entered into or such bid was submitted.   In the case of the enactment of a  law  increasing  the  rate  of  tax imposed by this article, the purchaser or user shall be entitled only to a refund or credit of the amount by which the increased tax on such sale or  use  imposed  under  this  article  plus  any  tax imposed under the authority of article twenty-nine exceeds the amount computed by applying against such sale or use the state and local rates of tax in  effect  at the time such contract was entered into or such bid was submitted.  (b)  Subject  to  the  conditions and limitations provided for in this subdivision, a refund or credit shall be allowed for a tax paid pursuant to subdivision (a) and paragraph three of  subdivision  (c)  of  section eleven  hundred  five, or section eleven hundred ten of this article and any tax imposed pursuant to the authority of article twenty-nine of this chapter on the sale to or use by an omnibus carrier  described  in  this subdivision  of  any omnibus, and of parts, equipment, lubricants, motor fuel, diesel motor fuel, maintenance, servicing or repair purchased  and used in the operation of any such omnibus by such carrier or on the sale to or use by a vessel operator described in this subdivision of a vessel with  a  seating  capacity  of  more than twenty passengers used for the transportation on water of passengers for hire, and of parts, equipment, lubricants,  diesel  motor  fuel,  maintenance,  servicing   or   repair purchased and used in the operation of any such vessel by such operator. Any  such  omnibus carrier or vessel operator must provide local transit service in this state and operate pursuant to a  certificate  of  public convenience  and  necessity issued by the commissioner of transportation of this state or by a like officer or agency of  the  United  States  or pursuant  to  the contract, franchise or consent between such carrier or operator and a city  having  a  population  of  more  than  one  million inhabitants,  or  any  agency of such city. The amount of such refund or credit shall be determined by first computing the local transit  service percentage  which  shall  be  the proportion that, in the case of such a carrier, such carrier's vehicle mileage or,  in  the  case  of  such  an operator,  such operator's vessel hours in local transit service in this state in  the  calendar  year  immediately  preceding  the  end  of  the quarterly return period, prescribed by section eleven hundred thirty-six of  this  article,  to which such refund or credit relates bears to such carrier's total mileage operated in this state  in  such  year  or  such operator's  total hours operated in this state in such year, as the case may be. An omnibus carrier or vessel operator which was not  engaged  in local  transit  service  in  the preceding calendar year shall determine such percentage with respect to its first four quarterly  returns  filed pursuant  to section eleven hundred thirty-six of this article, by using the proportion that such carrier's vehicle mileage  or  such  operator's vessel  hours  in local transit service in this state in the first three  months of such operation bears to such carrier's total mileage  or  such operator's total hours operated in this state in such period. The amount of  the  refund  or credit allowable on the combined state and local tax paid  on  such  purchases or uses then shall be determined in accordance with the following table:  If the local transit service          The refund or credit is:   percentage is: Less than 10 percent                  None 10 percent                            10 percent of such combined tax Greater than 10 percent but less      10 percent plus (the product of   than 70 percent                       1.5 times each whole percent                                         in excess of 10 percent) of                                         such combined tax 70 percent or more                    100 percent of such combined tax  For  purposes  of  this  subdivision,  local  transit  service,  vehicle mileage,  vessel  hours, total mileage operated and total hours operated shall be defined by rule or regulation of the commissioner  and  records satisfactory  to  the commissioner shall be maintained by the carrier or operator. An application  for  a  refund  or  credit  pursuant  to  this subdivision must be filed with the commissioner within the time provided by  subdivision  (a)  of  section  eleven  hundred  thirty-nine  of this article. Such application 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 that the applicant files  the application  for credit. However, the taking of the credit on the return shall be deemed to be part of the application for credit  and  shall  be subject  to  the  provisions  in  respect  to applications for credit in section eleven hundred  thirty-nine  of  this  article  as  provided  in subdivision (e) of such section.  (c)  A  refund  or credit equal to the amount of sales or compensating use tax imposed by this article and pursuant to the authority of article twenty-nine, and paid on the sale or use of tangible personal  property, shall  be allowed the purchaser where such property is later used by the purchaser in performing a service subject to tax  under  paragraph  (1), (2),  (3),  (5), (7) or (8) of subdivision (c) of section eleven hundred five or under section eleven hundred ten and such property has become  a physical  component  part  of  the  property  upon  which the service is performed or has been transferred to the purchaser  of  the  service  in conjunction  with  the performance of the service subject to tax or if a contractor,  subcontractor  or  repairman  purchases  tangible  personal property  and  later  makes  a  retail  sale  of  such tangible personal property, the acquisition of which would not have been a sale at  retail to  him  but  for  the  second  to  last sentence of subparagraph (i) of paragraph (4) of subdivision (b)  of  section  eleven  hundred  one.  An application  for  the refund or credit provided for herein must be filed with the commissioner of taxation and finance within the  time  provided by   subdivision   (a)  of  section  eleven  hundred  thirty-nine.  Such application 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 that he files his application for credit. However, the taking of the credit on the return shall be  deemed to  be part of the application for credit. The procedure for granting or denying such applications for  refund  or  credit  and  review  of  such  determinations shall be as provided in subdivision (e) of section eleven hundred thirty-nine.  (d) (1) Subject to the conditions and limitations provided for in this section,  a  refund  or  credit will be allowed for taxes imposed on the retail sale of tangible personal property described in  subdivision  (a) of  section  eleven  hundred  five of this article, and on every sale of services described in subdivisions (b) and  (c)  of  such  section,  and consideration  given  or  contracted to be given for, or for the use of, such  tangible  personal  property  or  services,  where  such  tangible personal  property  or  services  are  sold  to  a qualified empire zone enterprise or to a qualified entity that is also a tenant in or part  of a New York state innovation hot spot as provided in section thirty-eight of  this chapter or to a business located in a tax-free NY area approved pursuant to article twenty-one of the economic development law, provided that (A) such tangible personal property or tangible  personal  property upon which such a service has been performed or such service (other than a service described in subdivision (b) of section eleven hundred five of this article) is directly and predominantly, or such a service described in clause (A) or (D) of paragraph one of such subdivision (b) of section eleven hundred five of this article is directly and exclusively, used or consumed  by  (i)  such  qualified  empire  zone  enterprise  in an area designated as an empire zone  pursuant  to  article  eighteen-B  of  the general municipal law with respect to which such enterprise is certified pursuant  to  such  article eighteen-B, or (ii) such qualified entity at its location in or as part of a New York state innovation hot  spot,  or (iii)  such  business  at  its location in such tax-free NY area, or (B) such a service described in clause  (B)  or  (C)  of  paragraph  one  of subdivision  (b)  of  section  eleven  hundred  five  of this article is delivered and billed to (i) such enterprise at an address in such empire zone or (ii) such qualified entity at its location in or as part of  the New  York  state  innovation  hot  spot,  or  (iii) such business at its location in such tax-free NY area, or  (C)  the  enterprise's  place  of primary   use  of  the  service  described  in  paragraph  two  of  such subdivision (b) of section eleven hundred five is at an address in  such empire  zone  or  at  its  location  in  or  as part of a New York state innovation hot spot, or at  its  location  in  such  tax-free  NY  area; provided,  further,  that,  in  order for a motor vehicle, as defined in subdivision (c) of section eleven hundred seventeen of this article,  or tangible  personal  property related to such a motor vehicle to be found to be used predominantly in such a zone, at least fifty percent of  such motor  vehicle's  use  shall be exclusively within such zone or at least fifty percent of  such  motor  vehicle's  use  shall  be  in  activities originating  or  terminating  in  such zone, or both; and either or both such usages shall be computed either on the basis of mileage or hours of use, at  the  discretion  of  such  enterprise.  For  purposes  of  this subdivision,  tangible personal property related to such a motor vehicle shall  include  a  battery,  diesel  motor  fuel,  an   engine,   engine components,  motor  fuel, a muffler, tires and similar tangible personal property used in or on such a motor vehicle.  (2) Subject to the conditions and limitations  provided  for  in  this section,  a  refund  or  credit will be allowed for taxes imposed on the retail sale of, and consideration given or contracted to be  given  for, or  for  the  use  of,  tangible personal property sold to a contractor, subcontractor or repairman for  use  in  (A)  erecting  a  structure  or building  of a qualified empire zone enterprise or a business located in a tax-free NY area  approved  pursuant  to  article  twenty-one  of  the economic  development  law,  (B)  adding  to, altering or improving real property, property or land of such an enterprise or  such  business,  or  (C)  maintaining, servicing or repairing real property, property or land of such an enterprise or of such business, as the terms  real  property, property  or  land  are  defined in the real property tax law; provided, however, no credit or refund will be allowed under this paragraph unless such  tangible personal property is to become an integral component part of such structure, building, real property, property or land located  in an  area  designated as an empire zone pursuant to article eighteen-B of the general municipal law in, and with respect to which such  enterprise is certified pursuant to such article eighteen-B, or in an area approved as  a  tax-free  NY  area pursuant to article twenty-one of the economic development law where such business is located.  (3) Except as otherwise provided by law, the refund or credit provided for in this subdivision will not apply to taxes imposed by paragraph ten of subdivision (c) of section eleven hundred  five  and  eleven  hundred seven  of  this article or to taxes imposed pursuant to the authority of article twenty-nine of this chapter.  (4) In those instances when  the  provisions  of  subdivision  (w)  of section  nine  hundred  fifty-nine  of  the  general  municipal  law are applicable, no refund or credit will be allowed under  this  subdivision unless  the  qualified  empire zone enterprise has been issued an empire zone retention certificate.  (5) A taxpayer may not  apply  for  a  credit  or  refund  under  this subdivision  more  frequently than once a sales tax quarter, pursuant to subdivision (b) of section eleven hundred thirty-six of this article.  (6) Any reference in this chapter or in any local  law,  ordinance  or resolution  enacted  pursuant to the authority of article twenty-nine of this chapter to former subdivision (z) of section eleven hundred fifteen of this article will be deemed to be a reference  to  this  subdivision, and  any  such  local  law,  ordinance  or resolution which provides the exemptions described in former subdivision (z) of  such  section  eleven hundred  fifteen  shall  be  deemed  instead  to provide the refunds and credits described in this subdivision.  (7) Notwithstanding any  other  provision  in  this  article,  article twenty-nine  of this chapter, or any other law to the contrary, a credit or refund for any sale or use under this section shall not be allowed to a person that is first certified under article eighteen-B of the general municipal law on or after April first, two thousand  nine,  unless  that sale  or  use  is  eligible for a credit or refund of the county or city sales and compensating use taxes imposed pursuant to  the  authority  of subpart b of part I of article twenty-nine of this chapter.  (e)   Subject   to   conditions   and  limitations  provided  in  this subdivision, a room remarketer shall  be  allowed  a  refund  or  credit against  the  amount  of tax collected and required to be remitted under section eleven hundred thirty-seven of this article in the amount of the tax it paid to an operator of a hotel under section eleven hundred  four of this article, where applicable, and subdivision (e) of section eleven hundred  five  of  this  article.  Provided,  however, that, in order to qualify for a refund or credit under this subdivision for any sales  tax quarterly  period,  the  room  remarketer must, for that quarter, (1) be registered  for  sales  tax  purposes  under  section   eleven   hundred thirty-four  of  this  article; (2) collect the taxes imposed by section eleven hundred four of this article, where applicable,  and  subdivision (e)  of section eleven hundred five of this article; and (3) furnish the certificate of authority number of the operator to  whom  the  applicant paid the tax in its application for refund or credit if required on that form  or upon request. Provided that if the room remarketer requests the operator's certificate of authority number and is not provided with that number, the room remarketer may satisfy this  requirement  by  providing  the operator's name, business address, telephone number, and the address of  the  hotel where the occupancy took place. An application for refund or credit under this subdivision must be  filed  with  the  commissioner within  the  time  provided by subdivision (a) of section eleven hundred thirty-nine of this  article.  The  application  must  be  in  the  form prescribed by the commissioner. Where an application for credit has been filed,  the applicant may immediately take the credit on the return that is due coincident with or immediately subsequent to the  time  that  the applicant  files  the application for credit. However, the taking of the credit on the return is deemed to be part of the application for credit. The procedure for granting or denying the  applications  for  refund  or credit  and  review  of  those  determinations  shall  be as provided in subdivision (e) of section eleven hundred thirty-nine of  this  article. An  operator,  including  a  room  remarketer, who is paid tax by a room remarketer must upon request provide the remarketer with its certificate of authority number, provided that the operator's failure to do so  does not  change  the  requirement  set  forth  in  paragraph  three  of this subdivision.   * (f)(1) Subject to the conditions and  limitations  provided  for  in this  section,  a  refund  will  be  allowed  for  tax  paid pursuant to subdivision (a) of  section  eleven  hundred  five,  or  section  eleven hundred ten of this article, on the purchase or use of tangible personal property  sold  to  a  participant  who  has  received  a certificate of eligibility in the economic transformation  and  facility  redevelopment program;  provided that such tangible personal property has been used in constructing, expanding or rehabilitating industrial or commercial  real property  located  in  an  area designated as an economic transformation area pursuant to article eighteen of the economic development  law,  but only  to  the  extent  that  such  tangible personal property becomes an integral component part of such real property.  Such  tangible  personal property  must  be  purchased,  or contracted to be purchased, after the participant receives its  certificate  of  eligibility  and  before  the issuance  of  a certificate of occupancy and it must be used in a manner consistent with the  participant's  application  for  such  constructed, expanded, or rehabilitated real property.  (2)  Subject  to  the  conditions and limitations provided for in this section, a refund will be allowed for taxes imposed on receipts from the retail sale of, and consideration given or contracted to be  given  for, or  for  the  use  of,  tangible personal property sold to a contractor, subcontractor or repairman for  use  in  (A)  erecting  a  structure  or building of a participant who has received a certificate of eligibility, or  (B) adding to, altering or improving real property, property or land of such a participant, as the terms real property, property or land  are defined  in the real property tax law; provided, however, no refund will be allowed under this paragraph unless such tangible  personal  property has  become an integral component part of such structure, building, real property, property or land located  within  an  economic  transformation area  as defined by article eighteen of the economic development law in, and with respect to which such participant has been issued a certificate of eligibility pursuant to such article eighteen and only to the  extent that such property is used in a manner consistent with the participant's application. Such tangible personal property must be in the contractor's inventory  on  or after the day the participant receives its certificate of eligibility, or be purchased or contracted to be purchased after  the participant  receives  its certificate of eligibility, but such property must meet the conditions of the preceding sentence and  be  used  before the  issuance  of  a  certificate  of  occupancy  for  such constructed, expanded, or rehabilitated real property.  (3) Notwithstanding any other provision of law,  the  refund  provided for  in this subdivision shall not apply to the taxes imposed by section eleven hundred seven or eleven hundred nine of this article  or  to  any tax  imposed  pursuant  to  the authority of article twenty-nine of this chapter.  (4)  Notwithstanding  any other provision of law, where the tax on the sale or use of such tangible personal property  has  been  paid  to  the vendor, to qualify for such refund, such tangible personal property must be  incorporated  into  real property and used as required in paragraphs one and two of this subdivision within three years after the  date  such tax  was  payable  to the commissioner by the vendor pursuant to section eleven hundred thirty-seven of this article. Where the tax on  the  sale or  use of such tangible personal property was paid by the applicant for the refund directly to the commissioner, to  qualify  for  such  refund, such  tangible personal property must be incorporated into real property and used in the manner described in  paragraphs  one  and  two  of  this subdivision  within  three  years after the date such tax was payable to the  commissioner  by  such  applicant  pursuant  to  this  article.  An application for a refund pursuant to this section must be filed with the commissioner  within  the  time  provided  by subdivision (a) of section eleven hundred thirty-nine of this article. Such application shall be in such form as the commissioner may prescribe. This  application  will  be the  only  means of applying for the refund allowed by this section; the applicant may not take this refund in any other  manner,  including  the taking  of a credit on any return due pursuant to section eleven hundred thirty-six of this article. A taxpayer may not apply for a refund  under this  subdivision more frequently than once a sales tax quarterly period as described in subdivision (b) of section eleven hundred thirty-six  of this article.  (5)  The  terms  "participant",  "economic  transformation  area", and "certificate of eligibility" shall have the same meaning as those  terms have in section four hundred of the economic development law.   * NB Repealed December 31, 2026