NY Tax L § 1612 (2021)
2021 New York Laws TAX - Tax Article 34 - New York State Lottery for Education 1612 - Disposition of Revenues.

§  1612.  Disposition  of  revenues. a. The division shall pay into an account, to be known as the  lottery  prize  account,  under  the  joint custody  of  the comptroller and the commissioner, within one week after collection of sales receipts from a lottery game, such moneys  necessary for  the  payment  of  lottery  prizes  but  not to exceed the following percentages, plus interest earned thereon:  (1) sixty percent of the total amount for which tickets have been sold for a lawful lottery game introduced on or after the effective  date  of this paragraph, subject to the following provisions:  (A) such game shall be available only on premises occupied by licensed lottery sales agents, subject to the following provisions:  (i)  if  the  licensee  does not hold a license issued pursuant to the alcoholic  beverage  control  law  to  sell  alcoholic   beverages   for consumption  on  the  premises,  then  the  premises must have a minimum square footage greater than two thousand five hundred square feet;  (ii) notwithstanding the foregoing  provisions,  television  equipment that  automatically  displays  the  results  of  such  drawings  may  be installed and used without regard to the square footage if such premises are used as:  (I) a commercial bowling establishment, or  (II) a facility authorized under the racing, pari-mutuel wagering  and breeding law to accept pari-mutuel wagers;  (B) the rules for the operation of such game shall be as prescribed by regulations  promulgated  and adopted by the division, provided however, that such rules shall provide that no person under the age of twenty-one may participate in such games on the premises of a licensee who holds  a license  issued  pursuant  to the alcoholic beverage control law to sell alcoholic beverages for consumption  on  the  premises;  and,  provided, further,  that such regulations may be revised on an emergency basis not later than ninety days after the enactment of this paragraph in order to conform such regulations to the requirements of this paragraph; or  (2) sixty-four and one-fourth percent of the total  amount  for  which tickets  have  been  sold  for  the  "Instant  Cash"  game  in which the participant purchases a preprinted ticket on  which  dollar  amounts  or symbols  are  concealed on the face or the back of such ticket, provided however up to five new games may be  offered  during  the  fiscal  year, seventy-four  and  one-fourth  percent  of  the  total  amount for which tickets have been sold for such five  games  in  which  the  participant purchases  a  preprinted  ticket  on which dollar amounts or symbols are concealed on the face or the back of such ticket; or  (3) fifty-five percent of the total amount for which tickets have been sold for any joint, multi-jurisdiction, and out-of-state lottery  except as  otherwise provided in paragraph one of subdivision b of this section for any joint, multi-jurisdiction, out-of-state video lottery gaming; or  (4) fifty percent of the total amount for which tickets have been sold for games known as: (A) the "Daily Numbers Game" or  "Win  4",  discrete games  in  which  the  participants select no more than three or four of their own numbers to match with three  or  four  numbers  drawn  by  the commission  for purposes of determining winners of such games, (B) "Pick 10", offered no more than twice daily, in which participants select from a specified field of numbers a subset of ten numbers to match against  a subset  of  numbers  to  be  drawn  by the commission from such field of numbers for the purpose of determining winners of such game,  (C)  "Take 5",  offered no more than twice daily, in which participants select from a specified field of numbers a subset of five numbers to match against a subset of five numbers to be drawn by the commission from such field  of numbers for purposes of determining winners of such game; or  (5) forty percent of the total amount for which tickets have been sold for:  (A)  "Lotto", offered no more than twice daily, a discrete game in which all participants select a specific subset of numbers  to  match  a specific  subset  of  numbers,  as  prescribed  by rules and regulations promulgated  and adopted by the commission, from a larger specific field of numbers, as also prescribed by such rules  and  regulations  and  (B) with  the  exception  of  the  game  described  in paragraph one of this subdivision, such other state-operated lottery games that the commission may introduce, offered no more than twice daily, commencing on or  after forty-five  days  following  the  official  publication of the rules and regulations for such game.  (6) the commission shall make a report on the  revenues  derived  from the  additional lottery drawings pursuant to paragraphs four and five of this subdivision and shall submit  such  report  to  the  governor,  the speaker  of  the  assembly, and the temporary president of the senate by the first day of March two thousand twenty-two.   The moneys in the lottery prize account shall  be  paid  out  of  such account  on  the  audit  and  warrant  of  the  comptroller  on vouchers certified or approved by the director or  his  or  her  duly  designated official.   Prize  money  derived  from ticket sales receipts of a particular game and deposited in the  lottery  prize  account  in  accordance  with  the percentages  set  forth  above  may  be used to pay prizes in such game. Balances in the lottery prize account identified by individual games may be carried over from one fiscal year to the next to ensure proper payout of games.   b. 1. Notwithstanding section one  hundred  twenty-one  of  the  state finance  law,  on  or  before  the  twentieth  day  of  each  month, the commission shall pay into the state treasury, to the credit of the state lottery fund created by section ninety-two-c of the state  finance  law, not  less  than forty-five percent of the total amount for which tickets have been sold for games defined in paragraph five of subdivision  a  of this  section  during  the  preceding  month,  not  less than forty-five percent of the total amount for which tickets have  be  sold  for  games defined  in  paragraph  four of subdivision a of this section during the preceding month, not less than thirty-five percent of the  total  amount for which tickets have been sold for games defined in paragraph three of subdivision  a of this section during the preceding month, not less than twenty and three-fourths percent of the total amount for  which  tickets have  been  sold  for games defined in paragraph two of subdivision a of this section during the preceding month, provided however that for games with a prize payout of seventy-four and one-fourth percent of the  total amount  for  which  tickets have been sold, the commission shall pay not less than ten and three-fourths percent of sales into the state treasury and not less than twenty-five percent of  the  total  amount  for  which tickets have been sold for games defined in paragraph one of subdivision a  of  this  section  during the preceding month; and the balance of the total revenue after payout for prizes for games known as "video  lottery gaming," including any joint, multi-jurisdiction, and out-of-state video lottery  gaming,  * (i)  less  ten  percent of the total revenue wagered after payout for prizes to be retained by the  division  for  operation, administration,  and  procurement  purposes, provided, however, a vendor track located within Oneida county, within fifteen  miles  of  a  Native American  class III gaming facility, that has maintained at least ninety percent of full-time equivalent employees as they employed in  the  year two  thousand  sixteen,  may,  for  each  quarter  this  subparagraph is effective, withhold  up  to  seventy-five  percent  of  such  funds  for operational expenses provided such vendor track has filed an affirmation  with  the  gaming  commission  certifying that this additional amount is necessary to raise revenues to the same level  as  expenses  during  the previous quarter;   * NB Effective until June 21, 2023 * (i)  less  ten  percent  of the total revenue wagered after payout for prizes to be retained by the division for operation, administration, and procurement purposes;   * NB Effective June 21, 2023  (ii) less a vendor's fee the amount of which is to be paid for serving as a lottery agent to the track  operator  of  a  vendor  track  or  the operator  of any other video lottery gaming facility authorized pursuant to section sixteen hundred seventeen-a of this article.  The  amount  of the vendor's fee shall be calculated as follows:  (A)  when  a  vendor  track  is located within development zone one as defined by section thirteen  hundred  ten  of  the  racing,  pari-mutuel wagering and breeding law, at a rate of thirty-nine and one-half percent of the total revenue wagered at the vendor track after payout for prizes pursuant to this chapter;  (B)  when  a  vendor  track  is  located within zone two as defined by section thirteen hundred ten of the  racing,  pari-mutuel  wagering  and breeding  law, the rate of the total revenue wagered at the vendor track after payout for prizes pursuant to this chapter shall be as follows:  (1) forty-three and one-half percent for a vendor track  located  more than  fifteen  miles but less than fifty miles from a destination resort gaming facility authorized pursuant to article thirteen of  the  racing, pari-mutuel wagering and breeding law;  (2) forty-nine percent for a vendor track located within fifteen miles of  a  destination resort gaming facility authorized pursuant to article thirteen of the racing, pari-mutuel wagering and breeding law;  (3) fifty-one percent for vendor track located more than fifteen miles but less than fifty miles  from  a  Native  American  class  III  gaming facility as defined in 25 U.S.C. §2703(8);  (4)  fifty-six percent for a vendor track located within fifteen miles of a Native American class III gaming facility as defined  in  25  U.S.C §2703(8);  (5)  forty-nine percent for a video lottery gaming facility authorized pursuant to paragraph five of subdivision a of section  sixteen  hundred seventeen-a of this article;  (B-1)  Notwithstanding  subparagraph  (B)  of  this paragraph, for the period commencing on April first, two thousand nineteen  and  ending  on March  thirty-first,  two  thousand  twenty,  for a vendor track that is located within Ontario County, such vendor fee shall be thirty-seven and one-half percent of the total revenue wagered at the vendor track  after payout for prizes pursuant to this chapter;  (B-2)  Notwithstanding  subparagraph  (B)  of  this paragraph, for the period commencing on April first, two thousand nineteen  and  ending  on March  thirty-first  two  thousand  twenty,  for  a vendor track that is located within Saratoga County, such vendor fee shall be thirty-nine and one-half percent of the total revenue wagered at the vendor track  after payout for prizes pursuant to this chapter;  (C) when a video lottery facility is located at Aqueduct racetrack, at a  rate  of  fifty  percent  of  the  total revenue wagered at the video lottery gaming  facility  after  payout  for  prizes  pursuant  to  this chapter;  (D)  when  a video lottery gaming facility is located in either Nassau or Suffolk  counties  and  is  operated  by  a  corporation  established pursuant to section five hundred two of the racing, pari-mutuel wagering and  breeding  law, at a rate of forty-five percent of the total revenue  wagered at the video lottery gaming facility  after  payout  for  prizes pursuant to this chapter.  (iii)  less  any  additional  vendor's  fees. Additional vendor's fees shall be calculated as follows:  (A) when a vendor track is located within region one  and  is  located within Orange county or region two of development zone two, as such zone is  defined  in  section thirteen hundred ten of the racing, pari-mutuel wagering and breeding law, or is  located  within  region  six  of  such development   zone  two  and  is  located  within  Ontario  county,  the additional vendor fee received by the vendor track shall  be  calculated pursuant  to  subclause  one  of  this  clause;  provided, however, such additional vendor fee shall not exceed ten percent.  (1) The additional vendor fee is a percentage  of  the  total  revenue wagered  at  the  vendor  track after payout for prizes pursuant to this chapter. That percentage is calculated by subtracting the effective  tax rate  on  all  taxable  gross  gaming  revenue paid by a gaming facility within the same region as the vendor track from the percentage  that  is ninety  percent  less  than  the percentage of the vendor track's vendor fee. For purposes of this clause, Seneca and  Wayne  counties  shall  be deemed to be located within region six of development zone two.  (2)  The  additional  vendor  fee  paid  pursuant to this clause shall commence with the state  fiscal  year  beginning  on  April  first,  two thousand  nineteen  and  shall  be  paid to a vendor track no later than ninety days after the close of the fiscal year.  The  additional  vendor fee  authorized  by this clause shall only be applied to revenue wagered at a vendor track while a gaming facility in the  same  region  as  that vendor  track is open and operating pursuant to an operation certificate issued pursuant to section thirteen hundred thirty-one  of  the  racing, pari-mutuel wagering and breeding law.   * (B)  for a vendor track that is located within Oneida county, within fifteen miles of a Native  American  class  III  gaming  facility,  such additional  vendor fee shall be six and four-tenths percent of the total revenue wagered at the vendor after payout for prizes pursuant  to  this chapter.  The  vendor track shall forfeit this additional vendor fee for any time period that the vendor track does not maintain at least  ninety percent  of  full-time equivalent employees as they employed in the year two thousand sixteen.   * NB Repealed March 31, 2023   1-a. (i) Notwithstanding any provision of law  to  the  contrary,  any operators  of a vendor track or the operators of any other video lottery gaming facility eligible to receive  a  capital  award  as  of  December thirty-first,  two thousand eighteen shall deposit from their vendor fee into a segregated account an amount equal to four percent of  the  first sixty-two  million  five  hundred thousand dollars of revenue wagered at the vendor track after payout for prizes pursuant to this chapter to  be used  exclusively  for  capital  investments, except for Aqueduct, which shall deposit an amount equal to four percent of all revenue wagered  at the  video  lottery  gaming facility after payout for prizes pursuant to this chapter into a segregated account for capital investments.  (ii) Vendor tracks  and  video  lottery  gaming  facilities  shall  be permitted  to  withdraw funds for projects approved by the commission to improve the facilities of the  vendor  track  or  video  lottery  gaming facility  which  enhance  or  maintain the video lottery gaming facility including,  but  not  limited  to  hotels,  other  lodging   facilities, entertainment  facilities,  retail facilities, dining facilities, events arenas, parking garages and other improvements and  amenities  customary to  a  gaming  facility,  provided, however, the vendor tracks and video lottery gaming facilities shall  be  permitted  to  withdraw  funds  for  unreimbursed capital awards approved prior to the effective date of this subparagraph.  (iii) Any proceeds from the divestiture of any assets acquired through these  capital  funds  or any prior capital award must be deposited into this segregated account, provided that if  the  vendor  track  or  video lottery  gaming facility ceases use of such asset for gaming purposes or transfers the asset to a related  party,  such  vendor  track  or  video lottery gaming facility shall deposit an amount equal to the fair market value of that asset into the account.  (iv)  In  the  event  a  vendor track or video lottery gaming facility ceases gaming operations, any balance  in  the  account  along  with  an amount  equal to the value of all remaining assets acquired through this fund or prior capital awards shall be returned to the state for  deposit into  the  state  lottery  fund  for education aid, except for Aqueduct, which shall return to the state for deposit into the state lottery  fund for  education  aid all amounts in excess of the amount needed to fund a project pursuant to an agreement  with  the  operator  to  construct  an expansion  of  the  facility, hotel, and convention and exhibition space requiring a minimum capital investment of three hundred million  dollars and any subsequent amendments to such agreement.  (v)  The  comptroller  or  his  legally  authorized  representative is authorized  to  audit  any  and  all  expenditures  made  out  of  these segregated capital accounts.  (vi)  Notwithstanding subparagraphs (i) through (v) of this paragraph, a vendor track located in Ontario county may withdraw up to two  million dollars  from this account for the purpose of constructing a turf course at the vendor track and may  withdraw  up  to  six  million  dollars  in calendar  year two thousand nineteen for the purpose of covering ongoing operating expenses.  (vii)  Notwithstanding  subparagraphs  (i)  through   (vi)   of   this paragraph, a vendor track located within Saratoga county may withdraw up to  three million dollars in calendar year two thousand nineteen for the purpose of covering ongoing operating expenses.  (viii) Any balance remaining in the capital award account of a  vendor track or operator or any other video lottery gaming facility as of March thirty-first,  two  thousand  nineteen  shall be transferred for deposit into a segregated account established by this subparagraph.   1-b. Notwithstanding any provision of law to the contrary,  free  play allowance  credits  authorized by the division pursuant to subdivision i of section sixteen hundred seventeen-a of  this  article  shall  not  be included in the calculation of the total amount wagered on video lottery games,  the total amount wagered after payout of prizes, the vendor fees payable to the  operators  of  video  lottery  gaming  facilities,  fees payable to the division's video lottery gaming equipment contractors, or racing support payments.   1-c.  Notwithstanding  any  provision  of  law  to  the  contrary, the operator of a vendor track or the operator of any  other  video  lottery gaming  facility shall fund a marketing and promotion program out of the vendor's fee. Each operator shall submit an annual  marketing  plan  for the  review  and  approval  of  the  commission  and  any other required documents  detailing  promotional  activities  as  prescribed   by   the commission.   The   commission  shall  have  the  right  to  reject  any advertisement or promotion that does not properly represent the  mission or interests of the lottery or its programs.   2.  As  consideration  for  the  operation  of  a video lottery gaming facility, the  division,  shall  cause  the  investment  in  the  racing industry  of  a portion of the vendor fee received pursuant to paragraph one of this subdivision in the manner set  forth  in  this  subdivision.  With  the  exception  of  Aqueduct  racetrack,  a  video  lottery gaming facility authorized pursuant to  paragraph  five  of  subdivision  a  of section sixteen hundred seventeen-a of this article or a facility in the county  of  Nassau  or  Suffolk  operated  by  a corporation established pursuant to section five hundred two of the racing, pari-mutuel wagering and breeding law, each such track shall dedicate a portion of its vendor fees, received pursuant to clause (A), (B), (B-1), (B-2), (C), or (D) of subparagraph (ii) of paragraph one of this subdivision, for the  purpose of  enhancing  purses  at  such  track,  in an amount equal to eight and three-quarters percent of the total revenue wagered at the vendor  track after  pay  out  for  prizes. One percent of the gross purse enhancement amount, as required by this subdivision, shall be  paid  to  the  gaming commission  to  be  used exclusively to promote and ensure equine health and safety in New York. Any  portion  of  such  funding  to  the  gaming commission  unused  during  a fiscal year shall be returned to the video lottery gaming operators on a pro rata  basis  in  accordance  with  the amounts  originally  contributed  by each operator and shall be used for the purpose of enhancing purses at such track. One and one-half  percent of  the  gross  purse  enhancement  amount  at  a thoroughbred track, as required by this subdivision, shall be paid to  an  account  established pursuant  to section two hundred twenty-one-a of the racing, pari-mutuel wagering and breeding law to  be  used  exclusively  to  provide  health insurance  for  jockeys.  In  addition,  with  the exception of Aqueduct racetrack, a  video  lottery  gaming  facility  authorized  pursuant  to paragraph  five  of subdivision a of section sixteen hundred seventeen-a of this article or a  facility  in  the  county  of  Nassau  or  Suffolk operated  by  a corporation established pursuant to section five hundred two of the racing,  pari-mutuel  wagering  and  breeding  law,  one  and one-quarter  percent  of total revenue wagered at the vendor track after pay out for prizes, received pursuant to clause (A), (B), (B-1),  (B-2), (C),  or  (D) of subparagraph (ii) of paragraph one of this subdivision, shall be distributed to the appropriate breeding fund for the manner  of racing conducted by such track.   Provided,  further,  that nothing in this paragraph shall prevent each track from entering into an agreement, not to exceed  five  years,  with the  organization  authorized  to  represent its horsemen to increase or decrease the portion of its vendor fee dedicated to enhancing purses  at such  track  during the years of participation by such track, or to race fewer dates than required herein.   3. Nothing in paragraph two  of  this  subdivision  shall  affect  any agreement  in  effect on or before the effective date of this paragraph, except that the obligation to pay funds  to  the  gaming  commission  to promote  and  ensure  equine health and safety and the obligation to pay funds  to  an  account  established  pursuant  to  section  two  hundred twenty-one-a  of the racing, pari-mutuel wagering and breeding law to be used exclusively to provide health insurance for jockeys shall supersede any provision to the contrary in any such agreement.   c. 1. The specifications  for  video  lottery  gaming,  including  any joint,  multi-jurisdiction, and out-of-state video lottery gaming, shall be designed in such a manner as to pay prizes that average no less  than ninety percent of sales.   2.  Of  the  ten  percent  retained by the division for administrative purposes, any amounts beyond that which are necessary for the  operation and  administration  of  this  pilot  program  shall be deposited in the lottery education account.   d. Notwithstanding any law, rule or regulation to  the  contrary,  any successor  to  the New York Racing Association, Inc. with respect to the operation and maintenance of video lottery gaming at Aqueduct  racetrack  shall  be  deemed the successor to the New York Racing Association, Inc. for purposes of being subject to existing contracts and loan agreements, if any, entered into by the New York Racing Association,  Inc.  directly related  to  the construction, operation, management and distribution of revenues of the video lottery gaming facility at Aqueduct racetrack.   e. The video lottery gaming  operator  selected  to  operate  a  video lottery terminal facility at Aqueduct will be subject to a memorandum of understanding  between  the  governor, temporary president of the senate and the speaker of the assembly.  Notwithstanding  subparagraph  (i)  of paragraph  a  of  subdivision eight of section two hundred twelve of the racing, pari-mutuel wagering and breeding law, the state, pursuant to an agreement with the video lottery gaming  operator  to  operate  a  video lottery  terminal  facility  at Aqueduct, may authorize, as part of such agreement or in conjunction with  such  agreement  at  the  time  it  is executed,  additional  development  at the Aqueduct racing facility. The selection will be made in consultation with the franchised  corporation, but  is  not  subject  to  such  corporation's  approval. The franchised corporation shall not be eligible to compete to operate or to operate  a video lottery terminal facility at Aqueduct. The state will use its best efforts  to  ensure that the video lottery terminal facility at Aqueduct is opened as soon as is practicable and will, if practicable, pursue the construction of a temporary video lottery terminal facility at  Aqueduct subject  to  staying  within  an  agreed  budget  for such video lottery terminal facility and subject to such temporary facility not  having  an adverse  impact  on  opening  of  the permanent facility at Aqueduct. To facilitate the opening of the video lottery gaming facility at  Aqueduct as  soon  as  is practicable, the division of the lottery may extend the term of any existing contract related to the video lottery system.   f. As consideration for the operation  of  the  video  lottery  gaming facility  at Aqueduct racetrack, the division shall cause the investment in the racing industry of the following percentages of the vendor fee to be deposited or paid, as follows:   1. Six and one-half percent of  the  total  wagered  after  payout  of prizes  for  the  first  year  of  operation  of video lottery gaming at Aqueduct racetrack, seven percent of the total wagered after  payout  of prizes  for the second year of operation, and seven and one-half percent of the total wagered after payout  of  prizes  for  the  third  year  of operation  and  thereafter,  for  the  purpose  of  enhancing  purses at Aqueduct racetrack, Belmont Park racetrack and Saratoga race course. One percent of the gross purse  enhancement  amount,  as  required  by  this subdivision,  shall  be  paid  to  the  gaming  commission  to  be  used exclusively to promote and ensure equine health and safety in New  York. Any  portion  of  such  funding to the gaming commission unused during a fiscal year shall be returned on a pro rata basis in accordance with the amounts originally contributed and shall be  used  for  the  purpose  of enhancing  purses  at such tracks. One and one-half percent of the gross purse enhancement amount, as required by this subdivision, shall be paid to an account established pursuant to section two  hundred  twenty-one-a of  the  racing,  pari-mutuel  wagering  and  breeding  law  to  be used exclusively to provide health insurance for jockeys.   2. One percent of the total wagered after payout  of  prizes  for  the first  year  of operation of video lottery gaming at Aqueduct racetrack, one and one-quarter percent of the total wagered after payout of  prizes for  the  second  year of operation, and one and one-half percent of the total wagered after payout of prizes for the third year of operation and thereafter, for an appropriate breeding fund for the  manner  of  racing conducted  at  Aqueduct  racetrack,  Belmont Park racetrack and Saratoga race course.    3. Four percent of the total revenue wagered after payout of prizes to be deposited into an account of the franchised  corporation  established pursuant  to section two hundred six of the racing, pari-mutuel wagering and breeding law to be used for capital expenditures in maintaining  and upgrading  Aqueduct  racetrack, Belmont Park racetrack and Saratoga race course. Capital expenditures may include funding the construction of and initially equipping a  state-based  equine  drug  testing  and  research laboratory  to  be  used  pursuant  to subdivision seven of section nine hundred two of the racing, pari-mutuel wagering and breeding law.   4. Three percent of the total revenue wagered after payout for  prizes to   be   deposited  into  an  account  of  the  franchised  corporation established  pursuant  to  section  two  hundred  six  of  the   racing, pari-mutuel   wagering   and   breeding  law  to  be  used  for  general thoroughbred racing  operations  at  Aqueduct  racetrack,  Belmont  Park racetrack and Saratoga race course.   5.  Paragraphs  one,  two, three and four of this subdivision shall be known collectively as the "racing support payments".   f-1. As consideration for operation of video lottery  gaming  facility located in the county of Nassau or Suffolk and operated by a corporation established  pursuant  to  section  five  hundred  two  of  the  racing, pari-mutuel wagering and breeding law,  the  division  shall  cause  the investment  in  the  racing industry of the following percentages of the vendor fee to be deposited or paid as follows:   1. Two and three tenths percent of the total wagered after  payout  of prizes  for  the  purpose  of  enhancing  purses  at Aqueduct racetrack, Belmont Park racetrack and Saratoga race course, provided, however, that any amount that is in excess of the amount necessary to  maintain  purse support  from  video  lottery gaming at Aqueduct racetrack, Belmont Park racetrack and Saratoga race course at the same  level  realized  in  two thousand  thirteen,  to  be adjusted by the consumer price index for all urban consumers, as published annually by the United  States  department of  labor,  bureau of labor statistics, shall instead be returned to the commission.   2. five tenths percent of the total wagered after payout of prizes for the appropriate breeding fund for  the  manner  of  racing  at  Aqueduct racetrack,  Belmont  Park  racetrack and Saratoga race course, provided, however, that any amount that is in excess of the  amount  necessary  to maintain payments from video lottery gaming at Aqueduct racetrack at the same  level  realized  in  two  thousand thirteen, to be adjusted by the consumer price index for all urban consumers, as published  annually  by the United States department of labor, bureau of labor statistics, shall instead be returned to the commission.   3.  one  and  three  tenths percent of the total revenue wagered after payout of prizes to be deposited  into  an  account  of  the  franchised corporation  established  pursuant  to  section  two  hundred six of the racing, pari-mutuel wagering and breeding law to  be  used  for  capital expenditures  in  maintaining  and upgrading Aqueduct racetrack, Belmont Park racetrack and Saratoga race course,  provided,  however,  that  any amount  that  is  in excess of the amount necessary to maintain payments for capital expenditures from video lottery gaming at Aqueduct racetrack at the same level realized in two thousand thirteen, to be  adjusted  by the  consumer price index for all urban consumers, as published annually by the United States department of labor, bureau  of  labor  statistics, shall instead be returned to the commission.   4.  Nine  tenths percent of the total revenue wagered after payout for prizes to be deposited into an account  of  the  franchised  corporation established   pursuant  to  section  two  hundred  six  of  the  racing, pari-mutuel  wagering  and  breeding  law  to  be   used   for   general  thoroughbred  racing  operations  at  Aqueduct  racetrack,  Belmont Park racetrack and Saratoga race course, provided, however, that  any  amount that  is  in  excess  of  the  amount necessary to maintain payments for general  thoroughbred  racing  operations  from  video lottery gaming at Aqueduct racetrack at the same level realized in two thousand  thirteen, to  be  adjusted by the consumer price index for all urban consumers, as published annually by the United States department of labor,  bureau  of labor statistics, shall instead be returned to the commission.   g. In the event the state elects to construct a video lottery terminal facility  at the Aqueduct racetrack, all video lottery terminal revenues payable to the video lottery gaming operator at the  Aqueduct  racetrack remaining  after  payment  of the racing support payments shall first be used to repay the state's advances for (i) confirmation of  the  chapter eleven  plan  of  reorganization  and  cash  advances for the franchised corporation's operations following confirmation of  the  chapter  eleven plan  of  reorganization  and  (ii)  the amount expended by the state to construct such video lottery terminal  facility  at  Aqueduct  racetrack pursuant  to  an agreement with the state. Subparagraphs (i) and (ii) of this paragraph shall be defined as the  state  advance  amount  and  the amounts payable to the division of the lottery.   h.  As  consideration  for  the  operation  of  a video lottery gaming facility  located  in  Orange  county,  the  division  shall  cause  the investment  in  the  racing  industry  at  the following amount from the vendor fee to be paid as follows:   As amount to the horsemen  for  purses  at  a  licensed  racetrack  in Sullivan  county  in an amount equal to eight and three-quarters percent of the total revenue wagered at the video lottery gaming facility, after pay out for prizes. The facility located in Orange county, as defined in paragraph five of subdivision a of section sixteen  hundred  seventeen-a of  this  article  shall  pay to the horsemen at a licensed racetrack at Yonkers racetrack an amount to maintain purses for such horsemen at  the same  dollar levels realized in two thousand eighteen, to be adjusted by the consumer price index for all urban consumers, as published  annually by  the United States department of labor bureau of labor statistics. In addition, one and one-quarter percent of total revenue  wagered  at  the video  lottery  gaming  facility  after  pay  out  for  prizes, received pursuant to  clause  (B)  of  subparagraph  (ii)  of  paragraph  one  of subdivision  b  of this section, shall be distributed to the appropriate breeding fund for the manner of racing conducted by such  track.  In  no circumstance  shall  net proceeds of the lottery, including the proceeds from video lottery gaming,  be  used  for  the  payment  of  non-lottery expenses of the gaming commission, administrative or otherwise.