NY Tax L § 1101 (2021)
2021 New York Laws TAX - Tax Article 28 - Sales and Compensating Use Taxes Part 1 - Definitions 1101 - Definitions.

§  1101.  Definitions. (a) When used in this article the term "person" includes an individual, partnership, limited liability company, society, association,  joint  stock  company,  corporation,   estate,   receiver, trustee,  assignee,  referee, and any other person acting in a fiduciary or representative capacity, whether appointed by a court  or  otherwise, and any combination of the foregoing.  (b) When used in this article for the purposes of the taxes imposed by subdivisions (a), (b), (c) and (d) of section eleven hundred five and by section eleven hundred ten, the following terms shall mean:  (1) Purchase at retail. A purchase by any person for any purpose other than  those  set  forth  in  clauses  (A) and (B) of subparagraph (i) of paragraph (4) of this subdivision.  (2) Purchaser. A person who purchases property or to whom are rendered services, the receipts  from  which  are  taxable  under  this  article, including a mobile telecommunications customer.   * (3)  Receipt.  The  amount of the sale price of any property and the charge for any service taxable under this article, including gas and gas service and electricity and electric service of whatever nature,  valued in  money,  whether received in money or otherwise, including any amount for which credit is allowed by the vendor to the purchaser, without  any deduction for expenses or early payment discounts and also including any charges  by  the  vendor to the purchaser for shipping or delivery, and, with respect to  gas  and  gas  service  and  electricity  and  electric service,  any  charges by the vendor for transportation, transmission or distribution, regardless of whether such charges are  separately  stated in  the  written  contract,  if  any,  or  on  the bill rendered to such purchaser and  regardless  of  whether  such  shipping  or  delivery  or transportation, transmission, or distribution is provided by such vendor or  a  third  party,  but  excluding  any  credit  for tangible personal property accepted in part payment and intended for resale.  For  special rules  governing  computation  of  receipts,  see section eleven hundred eleven.   * NB Effective until December 1, 2021   * (3) Receipt. (i) The amount of the sale price of  any  property  and the charge for any service taxable under this article, including gas and gas  service  and  electricity  and electric service of whatever nature, valued in money, whether received in money or otherwise,  including  any amount  for  which  credit  is  allowed  by the vendor to the purchaser, without any deduction for expenses or early payment discounts  and  also including  any  charges  by  the vendor to the purchaser for shipping or delivery, and, with respect to gas and gas service and  electricity  and electric   service,  any  charges  by  the  vendor  for  transportation, transmission or distribution, regardless of  whether  such  charges  are separately  stated  in  the  written  contract,  if  any, or on the bill rendered to such purchaser and regardless of whether  such  shipping  or delivery or transportation, transmission, or distribution is provided by such  vendor  or  a  third  party, but excluding any credit for tangible personal property accepted in part payment and intended for resale.  For special  rules  governing  computation  of  receipts, see section eleven hundred eleven of this article.  (ii) Receipt shall include consideration received by the  vendor  from third parties if:  (A)  The  vendor  receives  consideration  from  a third party and the consideration is directly related to a rebate, discount or similar price reduction on the sale;  (B) The vendor has an obligation to pass such consideration through to the purchaser in the  form  of  a  rebate,  discount  or  similar  price reduction;  (C)  The  amount of the consideration to be paid by the third party is fixed and determinable by the vendor at the time  of  the  sale  of  the property or service to the purchaser; and  (D) One of the following criteria is met:  (I)   the   purchaser   presents   a   coupon,  certificate  or  other documentation to the vendor to claim a rebate, discount or similar price reduction where the coupon, certificate or documentation is  authorized, distributed  or granted by a third party with the understanding that the third party shall reimburse any vendor to whom the  coupon,  certificate or documentation is presented;  (II)  the  purchaser presents identification as a member of a group or organization entitled to a rebate, discount or similar price  reduction; or  (III) the rebate, discount or similar price reduction is identified as a third party rebate, discount or similar price reduction on the invoice received  by  the  purchaser  or  on  a  coupon,  certificate  or  other documentation presented by the purchaser.  (iii) Subparagraph (ii) of this paragraph shall not apply to  rebates, discounts  or  similar  price  reductions that are reimbursed by a third party on sales of motor vehicles.  (iv) For the purposes of subclause (II) of clause (D) of  subparagraph (ii)  of  this  paragraph,  "identification  as  a  member of a group or organization entitled to a rebate, discount or similar price  reduction" shall  not  include  the  presentation  of a customer loyalty or related rewards program card.   * NB Effective December 1, 2021  (4) Retail sale. (i) A sale  of  tangible  personal  property  to  any person  for  any  purpose,  other  than  (A)  for resale as such or as a physical component part of tangible personal property, or (B) for use by that person in performing the services subject to tax  under  paragraphs (1),  (2),  (3),  (5),  (7) and (8) of subdivision (c) of section eleven hundred five where the property so sold  becomes  a  physical  component part  of the property upon which the services are performed or where the property so sold is later actually transferred to the purchaser  of  the service  in  conjunction  with the performance of the service subject to tax.  Notwithstanding the preceding provisions of this  subparagraph,  a sale of any tangible personal property to a contractor, subcontractor or repairman for use or consumption in erecting structures or buildings, or building  on,  or otherwise adding to, altering, improving, maintaining, servicing or repairing real property, property or  land,  as  the  terms real  property,  property  or  land are defined in the real property tax law, is deemed to be a retail sale regardless of  whether  the  tangible personal  property  is  to  be  resold  as  such before it is so used or consumed, except that a sale of a  new  mobile  home  to  a  contractor, subcontractor or repairman who, in such capacity, installs such property is  not  a retail sale. Notwithstanding the preceding provisions of this subparagraph, the  purchase  of  a  truck,  trailer  or  tractor-trailer combination  for  rental or lease to an authorized carrier, as described in paragraph twenty-two of subdivision (a)  of  section  eleven  hundred fifteen, shall be deemed a retail sale.  (ii)  Notwithstanding  the  provisions  of  subparagraph  (i)  of this paragraph, no motor fuel or diesel motor fuel shall be sold or  used  in this  state  without  payment,  and inclusion in the sales price of such motor fuel, of the tax on motor fuel required to be prepaid pursuant  to the  provisions  of  section  eleven  hundred two of this article except where a provision of this article relating to motor fuel or diesel motor fuel specifically provides otherwise and except in the case of a sale or use subject to tax under section eleven hundred five or  eleven  hundred  ten,  respectively,  of this article. Provided, however, except for such requirement of prepayment of tax required by section eleven hundred  two of this article, the provisions of this subparagraph shall not otherwise modify  the  meaning  of the term "retail sale" as used in this article. For purposes of this  subparagraph  and  sections  eleven  hundred  two, eleven hundred eleven, eleven hundred twenty, eleven hundred thirty-two, eleven  hundred  thirty-four, eleven hundred thirty-five, eleven hundred thirty-six, eleven hundred  forty-two,  eleven  hundred  forty-five  and eighteen  hundred  seventeen  of this chapter, the following terms shall have the following meanings:  (A) "Petroleum  products"  means  diesel  motor  fuel  as  defined  in subdivision  fourteen of section two hundred eighty-two of this chapter, other than kerosene or propane used for residential purposes,  or  motor fuel  as defined in subdivision two of section two hundred eighty-two of this chapter. The phrase "used for residential purposes" shall have  the same  meaning as it has for purposes of section eleven hundred five-A of this article.  (B) The term "distributor" shall have the same meaning as it  has  for purposes  of article twelve-A of this chapter, excluding persons who are not required pursuant to section two hundred eighty-two-a to pay the tax imposed thereby.  (C) The term "motor fuel" means motor fuel as defined  in  subdivision two of section two hundred eighty-two of this chapter.  (D) The terms "filling station", "terminal" and "owner" shall have the same  meaning  as they have for the purposes of article twelve-A of this chapter.  (E) The term "diesel motor fuel" means diesel motor fuel as defined in subdivision fourteen of section two hundred eighty-two of this chapter.  (F) The terms "highway diesel  motor  fuel"  and  "non-highway  diesel motor  fuel"  shall  have  the same meaning as they have for purposes of article twelve-A of this chapter.  (iii) Notwithstanding the  provisions  of  subparagraph  (i)  of  this paragraph,  no  cigarettes  shall  be sold or used in this state without payment, and inclusion in the sales price of such cigarettes, of the tax on cigarettes required to be  prepaid  pursuant  to  the  provisions  of section eleven hundred three of this article except where a provision of this  article relating to cigarettes specifically provides otherwise and except in the case of a sale or use subject to tax under section  eleven hundred  five  or  eleven  hundred  ten,  respectively, of this article. Provided, however, except for such  requirement  of  prepayment  of  tax required by section eleven hundred three of this article, the provisions of  this subparagraph shall not otherwise modify the meaning of the term "retail sale" as used in this article. For purposes of this subparagraph and sections eleven hundred three, eleven hundred eleven, eleven hundred fifteen, eleven  hundred  sixteen,  eleven  hundred  twenty-one,  eleven hundred   thirty-two,   eleven   hundred   thirty-four,  eleven  hundred thirty-five, eleven hundred  thirty-six,  eleven  hundred  thirty-eight, eleven  hundred  forty-two and eleven hundred forty-five of this article and eighteen hundred seventeen of this chapter, the  terms  "cigarette," "agent"  and  "package"  shall  have the same meaning that they have for purposes of article twenty of this chapter.  (iv) (A) The term retail sale does not include:  (I) The transfer of  tangible  personal  property  to  a  corporation, solely  in  consideration  for  the issuance of its stock, pursuant to a merger or consolidation effected under the law of New York or any  other jurisdiction.  (II) The distribution of property by a corporation to its stockholders as a liquidating dividend.  (III) The distribution of property by a partnership to its partners in whole or partial liquidation.  (IV)  The  transfer of property to a corporation upon its organization in consideration for the issuance of its stock.  (V) The contribution of property to a partnership in consideration for a partnership interest therein.  (B) For an exception applicable to this subparagraph, see  subdivision (q) of section eleven hundred eleven of this article.  (v)  Notwithstanding  the  provisions  of  subparagraph  (i)  of  this paragraph, the following sales of tangible personal  property  shall  be deemed  to  be  retail  sales:  (A)  a  sale  to a single member limited liability company or a subsidiary for resale to  its  member  or  owner, where  such  single  member  limited  liability company or subsidiary is disregarded as an entity separate from its owner for federal income  tax purposes  (without  reference  to  any  special  rules  related  to  the imposition of certain federal  taxes),  including  but  not  limited  to certain  employment  and  excise  taxes; (B) a sale to a partnership for resale to one or more of its partners; or (C) a sale to a trustee  of  a trust for resale to one or more beneficiaries of such trust.  (5)  Sale, selling or purchase. Any transfer of title or possession or both, exchange or barter, rental, lease or license  to  use  or  consume (including,  with  respect  to  computer  software,  merely the right to reproduce), conditional or otherwise, in any  manner  or  by  any  means whatsoever for a consideration, or any agreement therefor, including the rendering   of   any   service,   taxable  under  this  article,  for  a consideration or any agreement therefor.  (6) Tangible personal property. Corporeal  personal  property  of  any nature.  However,  except for purposes of the tax imposed by subdivision (b) of section eleven hundred five of this article, such term shall  not include  gas, electricity, refrigeration and steam. Such term shall also include pre-written  computer  software,  whether  sold  as  part  of  a package,  as  a  separate component, or otherwise, and regardless of the medium by means of which such software is conveyed to a purchaser.  Such term  shall  also  include  newspapers  and periodicals where the vendor ships or delivers the entire  edition  or  issue  of  the  newspaper  or periodical,  with  or  without  the  advertising  included  in the paper edition or issue, but not including anything,  other  than  advertising, not  in  such  paper  edition  or  issue,  to  the purchaser by means of telephony or telegraphy or other electronic media, but  only  where  the amount of the sale price to such purchaser of such newspaper or magazine or  the subscription price, in the case of a subscription to a newspaper or periodical, including any charge  by  such  vendor  for  shipping  or delivery  to  the  purchaser,  is  separately  stated to such purchaser. However, such term shall not include a modular home that is  permanently affixed  to  real  property,  provided  that, if a modular home is to be removed from the realty, whether as a whole or disassembled, it and  its component  parts shall be tangible personal property whether it is to be sold as a whole or as pieces.  (7) Use. The exercise of any right or  power  over  tangible  personal property  or  over  any  of  the services which are subject to tax under section eleven hundred ten of this article or pursuant to the  authority of  article  twenty-nine  of this chapter, by the purchaser thereof, and includes, but is not limited to, the receiving, storage or  any  keeping or  retention  for  any  length  of  time,  withdrawal from storage, any installation, any affixation  to  real  or  personal  property,  or  any consumption of such property or of any such service subject to tax under such  section  eleven  hundred  ten or pursuant to the authority of such article twenty-nine. Without limiting  the  foregoing,  use  also  shall  include  the  distribution  of  only tangible personal property, such as promotional materials, or of any such service subject to tax under  such section  eleven hundred ten or pursuant to the authority of such article twenty-nine.  (8) Vendor. (i) The term "vendor" includes:  (A)  A  person making sales of tangible personal property or services, the receipts from which are taxed by this article;  (B) A person maintaining a place of business in the state  and  making sales, whether at such place of business or elsewhere, to persons within the state of tangible personal property or services, the use of which is taxed by this article;  (C) A person who solicits business either:  (I)   by   employees,   independent   contractors,   agents  or  other representatives; or  (II) by distribution of catalogs or other advertising matter,  without regard  to  whether  such  distribution  is  the  result  of  regular or systematic solicitation, if such person has some  additional  connection with  the  state  which  satisfies  the  nexus requirement of the United States constitution; and by reason thereof  makes  sales  to  persons  within  the  state  of tangible  personal  property  or  services, the use of which is taxed by this article;  (D) A  person  who  makes  sales  of  tangible  personal  property  or services,  the  use of which is taxed by this article, and who regularly or systematically delivers such property or services in  this  state  by means other than the United States mail or common carrier;  (E) A person who regularly or systematically solicits business in this state  by  the  distribution,  without regard to the location from which such  distribution  originated,  of  catalogs,  advertising  flyers   or letters,  or  by any other means of solicitation of business, to persons in this state and by reason thereof makes sales to  persons  within  the state  of  tangible personal property, the use of which is taxed by this article, if such solicitation satisfies the  nexus  requirement  of  the United States constitution;  (F)  A  person  making sales of tangible personal property, the use of which is taxed by this article, where such person retains  an  ownership interest  in  such property and where such property is brought into this state by the person to whom such property is sold and the person to whom such property is sold becomes or is a resident or uses such property  in any  manner in carrying on in this state any employment, trade, business or profession;  (G) Any other person making sales  to  persons  within  the  state  of tangible  personal  property  or  services, the use of which is taxed by this article, who may be authorized by the commissioner of taxation  and finance to collect such tax by part IV of this article;  (H)  The  state  of  New York, any of its agencies, instrumentalities, public corporations (including a public corporation created pursuant  to agreement  or  compact  with  another  state  or  Canada)  or  political subdivisions when such entity sells  services  or  property  of  a  kind ordinarily sold by private persons; and  (I)  A  seller  of  tangible personal property or services, the use of which is taxed by this article if either (I) an affiliated  person  that is  a  vendor  as  otherwise defined in this paragraph uses in the state trademarks, service marks, or trade names that are the same as those the seller uses; or (II) an affiliated person engages in activities  in  the state  that  inure  to  the benefit of the seller, in its development or maintenance of a market for its goods or services in the state,  to  the extent  that those activities of the affiliate are sufficient to satisfy  the nexus requirement of the United States constitution. For purposes of this clause, "affiliated person" has the same meaning as in  clause  (B) of  subparagraph  (v) of this paragraph. Nothing in this clause shall be construed  to narrow the scope of any other provision in this paragraph. Notwithstanding the provisions of this clause,  the  activities  in  the state  of an affiliated person in providing accounting or legal services or advice to a seller, or in  directing  the  activities  of  a  seller, including,  but  not  limited  to,  making decisions about (a) strategic planning, (b) marketing, (c) inventory, (d) staffing, (e)  distribution, or  (f)  cash  management, will not result in making the seller a vendor under this paragraph.  (ii) (A) In addition, when in the opinion of the  commissioner  it  is necessary  for the efficient administration of this article to treat any salesman, representative, peddler or  canvasser  as  the  agent  of  the vendor,  distributor,  supervisor  or employer under whom he operates or from whom he obtains tangible personal property sold by him, or for whom he solicits business, the commissioner may,  in  his  discretion,  treat such  agent  as  the  vendor  jointly  responsible  with  his principal, distributor, supervisor or employer for the collection and payment  over of  the  tax. An unaffiliated person providing fulfillment services to a purchaser shall not be treated as a vendor  by  the  commissioner  under this  paragraph  with  respect  to  such  activity. For purposes of this clause, persons are affiliated persons with respect to each other  where one of such persons has an ownership interest of more than five percent, whether direct or indirect, in the other, or where an ownership interest of  more  than five percent, whether direct or indirect, is held in each of such persons by another person or by a group of other  persons  which are affiliated persons with respect to each other.  (B)  A  person  shall be deemed a vendor of the services enumerated in paragraph nine of subdivision (c) of section eleven hundred five of this article, liable for all the  obligations  of  a  vendor,  including  the collection,  reporting  and  remittance  of  the  tax imposed under this article and possessing all the rights of a vendor including the right to an exclusion or a credit or refund of tax as provided in subdivision (e) of section eleven hundred thirty-two of this article,  with  respect  to such  services which are provided by a vendor thereof and are subject to taxation under this article, where such person, its affiliate  or  agent bills, on behalf of such vendor, either (I) as part of, or as a schedule to,  the  statement  of such person to its purchasers or (II) separately (without regard to whether or not such person has customers of its own), such enumerated services provided by such vendor.  For  the  purpose  of this  paragraph,  "affiliate" means an entity which directly, indirectly or constructively controls a vendor of such enumerated  services  or  is controlled  by  such  vendor or is under the control of, along with such vendor, a common parent.  Provided,  however,  the  provisions  of  this clause  shall  not  in any way be construed to otherwise limit or remove the obligations and liabilities of any person with respect  to  the  tax imposed by this article.  (iii)  For  purposes  of  clause  (D)  of  subparagraph  (i)  of  this paragraph, a person shall be presumed to be regularly or  systematically delivering  property  or  services in this state if the cumulative total number of occasions such person or his agent  came  into  the  state  to deliver  property  or services exceeded twelve during the preceding four quarterly periods ending on the last day of February,  May,  August  and November, unless such person can demonstrate, to the satisfaction of the commissioner,  that  he  cannot  reasonably be expected to come into the state for such purposes on more than twelve occasions  during  the  next  succeeding  four  quarterly  periods ending on the last day of February, May, August and November.  (iv) For purposes of clause (E) of subparagraph (i) of this paragraph, a  person shall be presumed to be regularly or systematically soliciting business in this state if, for the immediately preceding four  quarterly periods  ending  on  the last day of February, May, August and November, the cumulative total of such  person's  gross  receipts  from  sales  of property  delivered  in this state exceeds five hundred thousand dollars and such person made more than one hundred sales of  property  delivered in  this  state, unless such person can demonstrate, to the satisfaction of the commissioner, that he cannot reasonably be expected to have gross receipts in excess of five hundred thousand dollars  or  more  than  one hundred  sales  of  property  delivered  in  this  state  for  the  next succeeding four quarterly periods ending on the last  day  of  February, May, August and November.  (v)  Notwithstanding any other provision of law, the term vendor shall not include:  (A) a person who is not otherwise a vendor who  purchases  fulfillment services  carried  on  in  New York by a person other than an affiliated person; or  (B) a person who is not otherwise a vendor who owns tangible  personal property  located  on  the premises of an unaffiliated person performing fulfillment services for such person.   For purposes of this subparagraph, persons are affiliated persons with respect to each other  where  one  of  such  persons  has  an  ownership interest  of  more than five percent, whether direct or indirect, in the other, or where an ownership interest of more than five percent, whether direct or indirect, is held in each of such persons by another person or by a group of other persons which are affiliated persons with respect to each other.  (vi) For purposes of subclause (I) of clause (C) of  subparagraph  (i) of  this  paragraph, a person making sales of tangible personal property or services taxable under this article ("seller") shall be  presumed  to be  soliciting  business  through  an  independent  contractor  or other representative if the seller enters into an agreement with a resident of this  state  under  which  the  resident,  for  a  commission  or  other consideration,   directly  or  indirectly  refers  potential  customers, whether by a link on an internet website or otherwise, to the seller, if the cumulative gross receipts from sales by the seller to  customers  in the state who are referred to the seller by all residents with this type of  an  agreement  with  the seller is in excess of ten thousand dollars during the preceding four quarterly periods ending on the  last  day  of February, May, August, and November. This presumption may be rebutted by proof  that  the  resident with whom the seller has an agreement did not engage in any solicitation in the state on behalf  of  the  seller  that would  satisfy  the  nexus requirement of the United States constitution during  the  four  quarterly  periods  in  question.  Nothing  in   this subparagraph  shall  be  construed  to  narrow  the  scope  of the terms independent contractor or other representative for purposes of subclause (I) of clause (C) of subparagraph (i) of this paragraph.  (9) Capital  improvement.  (i)  An  addition  or  alteration  to  real property which:  (A)  Substantially  adds  to  the  value  of  the  real  property,  or appreciably prolongs the useful life of the real property; and  (B) Becomes part of the real property or is permanently affixed to the real property so  that  removal  would  cause  material  damage  to  the property or article itself; and  (C) Is intended to become a permanent installation.  (ii)  A  mobile  home  shall  not  constitute  an  addition or capital improvement to real property, property or land, regardless of the nature of its installation.  (iii)  Notwithstanding  the  provisions  of  subparagraph  (i) of this paragraph: (A) Floor covering, such as carpet, carpet padding,  linoleum and  vinyl  roll  flooring,  carpet  tile, linoleum tile and vinyl tile, installed as the initial finished floor covering in new construction  or a new addition to or total reconstruction of existing construction shall constitute an addition or capital improvement to real property, property or land; and  (B) Floor covering, such as carpet, carpet padding, linoleum and vinyl roll  flooring,  carpet  tile,  linoleum  tile and vinyl tile, installed other than as described in clause (A) of  this  subparagraph  shall  not constitute an addition or capital improvement to real property, property or land.  (10) Mobile home. (i) A structure which is:  (A) A type of manufactured housing; and  (B) Not self-propelled; and  (C) Transportable in one or more sections:  (I)  that  may be folded, collapsed or telescoped when being towed and expanded later to provide additional cubic capacity, or  (II) that may be separately towable and designed to be joined into one integral structure capable of being again separated  into  the  sections for repeated towing; and  (D)  Built on a permanent chassis, comprised of frame and wheels, that is to be connected to utilities; and  (E) Designed to be used as  a  permanent  dwelling,  with  or  without permanent foundation; and  (F) Used for residential or commercial purposes.  (ii)  The  term  "mobile  home" shall also include structures commonly called "double wides".  (iii) The term "mobile home" shall not include:  (A) Structures designed and constructed primarily for temporary living quarters, recreations, camping or travel; or  (B)  Furniture,  fixtures,  furnishings,  appliances,  attachments  or similar  tangible  personal property not incorporated as component parts of a mobile home at the time of manufacture.  (11) New mobile home. A mobile home which is sold for the  first  time at retail including all components incorporated into such mobile home at the time of manufacture and remaining unchanged at the time of the first retail sale thereof.  (12)  Promotional materials. Any advertising literature, other related tangible  personal  property  (whether  or  not  personalized   by   the recipient's  name  or other information uniquely related to such person) and envelopes used exclusively to deliver the same. Such  other  related tangible  personal property includes, but is not limited to, free gifts, complimentary  maps  or  other  items  given  to  travel  club  members, applications,  order  forms  and  return  envelopes with respect to such advertising  literature,  annual  reports,   prospectuses,   promotional displays  and  Cheshire labels but does not include invoices, statements and the like. Promotional materials shall  also  include  paper  or  ink furnished  to  a printer for use in providing the services of producing, printing or imprinting promotional materials or in  producing,  printing or  imprinting  promotional materials, where such paper and ink become a physical component part of the promotional materials  and  such  printer sells  such  services  or  such  promotional materials to the person who furnished the paper and ink to such printer.  (13) Telephone answering service. A service that  consists  of  taking messages by telephone and transmitting such messages to the purchaser of the  service  or  at  the  purchaser's direction, but not including such service if it is merely an incidental element of a  different  or  other service purchased by the customer.  (14)  Pre-written  computer  software.  Computer  software  (including pre-written  upgrades  thereof)  which  is  not  software  designed  and developed  by  the  author  or  other creator to the specifications of a specific purchaser. The combining of two or  more  pre-written  computer software  programs  or  pre-written  portions thereof does not cause the combination to be other than pre-written computer software.  Pre-written software  also includes software designed and developed by the author or other creator to the specifications of a specific purchaser when  it  is sold  to  a person other than such purchaser. Where a person modifies or enhances computer software of which such person is  not  the  author  or creator, such person shall be deemed to be the author or creator only of such  person's  modifications or enhancements. Pre-written software or a pre-written portion thereof that is modified or enhanced to any  degree, where  such modification or enhancement is designed and developed to the specifications of a specific purchaser,  remains  pre-written  software; provided,  however,  that where there is a reasonable, separately stated charge or an invoice or other  statement  of  the  price  given  to  the purchaser  for  such  modification  or enhancement, such modification or enhancement shall not constitute pre-written computer software.  (15) Clothing and footwear. (i) Clothing and footwear to  be  worn  by human beings, but not including costumes or rented formal wear, and (ii) fabric,  thread,  yarn,  buttons,  snaps,  hooks, zippers and like items which are used or consumed to make or repair such clothing  (other  than such  costumes  or  rented  formal  wear)  and  which  become a physical component part of such clothing, but not including such items made  from pearls,   precious   or  semi-precious  stones,  jewels  or  metals,  or imitations thereof.  (16) Commercial vessel. A  vessel  used  primarily  (i)  to  transport persons  or  property,  for hire, (ii) by the purchaser of the vessel to transport such person's tangible personal property  in  the  conduct  of such person's business, or (iii) for both such purposes.  (17)  Commercial  aircraft.  Aircraft  used primarily (i) to transport persons or property, for hire, (ii) by the purchaser of the aircraft  to transport  such  person's  tangible  personal property in the conduct of such person's business, or (iii) for both  such  purposes.  Transporting persons  for  hire  does  not  include  transporting  agents, employees, officers,  members,  partners,  managers  or  directors  of   affiliated persons. Persons are affiliated persons with respect to each other where one  of the persons has an ownership interest of more than five percent, whether direct or indirect, in the other, or where an ownership interest of more than five percent, whether direct or indirect, is held  in  each of the persons by another person or by a group of other persons that are affiliated  persons  with respect to each other. For an exception to the exclusions from the definition of "retail sale" applicable to  aircraft, see subdivision (q) of section eleven hundred eleven of this article.   18.  Fulfillment  services. Any of the following services performed by an entity on its premises on behalf of a purchaser:  (i) the acceptance of orders electronically  or  by  mail,  telephone, telefax or internet;  (ii) responses to consumer correspondence and inquiries electronically or by mail, telephone, telefax or internet;  (iii) billing and collection activities; or  (iv)  the shipment of orders from an inventory of products offered for sale by the purchaser.  (19)  Farming.  The term "farming" includes agriculture, floriculture, horticulture,  aquaculture  and  silviculture;  stock,  dairy,  poultry, fruit,  fur  bearing  animal, graping, truck and tree farming; ranching; operating nurseries, greenhouses, vineyard trellises  or  other  similar structures   used   primarily   for   the   raising   of   agricultural, horticultural,    vinicultural,    viticultural,    floricultural     or silvicultural  commodities;  operating  orchards;  raising,  growing and harvesting crops,  livestock  and  livestock  products,  as  defined  in subdivision  two  of  section  three  hundred one of the agriculture and markets law; and raising,  growing  and  harvesting  woodland  products, including, but not limited to, timber, logs, lumber, pulpwood, posts and firewood.  (20)  Commercial  horse boarding operation. "Commercial horse boarding operation" shall have the same meaning that such term has in subdivision thirteen of section three hundred one of  the  agriculture  and  markets law.  (22)  (A)  "Prepaid  telephone  calling  service"  means  the right to exclusively purchase telecommunication services, that must be  paid  for in  advance  and  enable  the  origination  of  one  or more intrastate, interstate or international telephone calls using an access number (such as a toll free network access number) and/or authorization code, whether manually or electronically dialed, for which payment to a vendor must be made in advance, whether  or  not  that  right  is  represented  by  the transfer  by the vendor to the purchaser of an item of tangible personal property. Such term, except with respect to the tax imposed  by  section one  hundred  eighty-six-e  of  article nine of this chapter, includes a prepaid mobile  calling  service.  In  no  event  shall  a  credit  card constitute  a prepaid telephone calling service. If the sale or recharge of a prepaid telephone calling  service  does  not  take  place  at  the vendor's  place of business, it shall be conclusively determined to take place at the purchaser's shipping  address  or,  if  there  is  no  item shipped,  at  the purchaser's billing address or the location associated with the purchaser's mobile telephone number, or, if the vendor does not have the address or the location associated with the  customer's  mobile telephone number, at such address, as approved by the commissioner, that reasonably  reflects  the customer's location at the time of the sale or recharge.  (B) "Prepaid  mobile  calling  service"  means  the  right  to  use  a commercial mobile radio service, whether or not sold with other property or services, that must be paid for in advance and is sold for use over a specified  period  of  time  or  in  predetermined units or dollars that decline with use in a  known  amount,  whether  or  not  that  right  is represented  by  or includes the transfer to the purchaser of an item of tangible personal property.  (23) Qualified empire zone enterprise. The term "qualified empire zone enterprise" shall have the same meaning that such term  has  in  section fourteen  of  this  chapter  for  purposes  of  this article and article twenty-nine of this chapter.  (24) "Mobile telecommunications service" shall mean commercial  mobile radio  service.  "Mobile  telecommunications  service"  does not include prepaid telephone calling service or air-ground radio telephone  service as  defined  in  section  22.99  of  title  47  of  the  code of federal regulations as in effect on June first, nineteen hundred ninety-nine.  (25) "Commercial mobile radio service" and "mobile service" shall have the same meanings as in section 20.3 of title 47 of the code of  federal  regulations  in  effect  on June first, nineteen hundred ninety-nine, to wit:  (i)  "Commercial  mobile  radio  service."  A  mobile service that is: (A)(I)  provided  for  profit,  i.e.,  with  the  intent  of   receiving compensation or monetary gain; (II) an interconnected service; and (III) available  to  the public, or to such classes of eligible users as to be effectively available to a substantial portion of the public; or (B) the functional equivalent of such a mobile service described in  clause  (A) of this subparagraph.  (ii)  "Mobile  service."  A  radio  communications  service carried on between mobile stations or receivers and land stations,  and  by  mobile stations  communicating among themselves, and includes: (A) both one-way and two-way radio communications services; (B) a  mobile  service  which provides  a  regularly  interacting group of base, mobile, portable, and associated  control  and  relay  stations  (whether   licensed   on   an individual,  cooperative,  or  multiple  basis)  for  private one-way or two-way  land  mobile  radio  communications  by  eligible  users   over designated  areas  of operation; and (C) any service for which a license is required in a personal communications service under part 24 of  title 47  of the code of federal regulations in effect on June first, nineteen hundred ninety-nine.  (26)  "Place  of  primary  use"  shall   mean   the   street   address representative  of  where  a mobile telecommunications customer's use of the mobile telecommunications service primarily occurs, and must be: (i) the residential street address or the primary business street address of the mobile telecommunications customer  and  (ii)  within  the  licensed service area of the home service provider.  (27)(i)  "Mobile  telecommunications customer" shall mean either (A) a person or entity that contracts with a home service provider for  mobile telecommunications   services;   or  (B)  if  the  end  user  of  mobile telecommunications services is not the contracting party, the  end  user of  the  mobile  telecommunications service, but this clause (B) applies only for the purpose of determining the place of  primary  use.  "Mobile telecommunications  customer"  does not include either (A) a reseller of mobile telecommunications service; or (B) a  serving  carrier  under  an arrangement  to  serve  a mobile telecommunications customer outside the home service provider's licensed service area.  (ii) "Home service provider" shall mean a facilities-based carrier  or reseller  as  defined in subparagraph (iv) of this paragraph, with which the mobile telecommunications customer contracts for  the  provision  of mobile telecommunications service.  (iii)  "Licensed service area" shall mean the geographic area in which a home service provider is authorized by  law  or  contract  to  provide mobile   telecommunications   service  to  a  mobile  telecommunications customer.  (iv) "Reseller" shall mean a provider who purchases telecommunications service  from  another  telecommunications  service  provider  and  then resells,  uses  as  a  component  part  of,  or integrates the purchased services into a mobile telecommunications service. "Reseller"  does  not include  a  serving  carrier with which a home service provider arranges for the services to its mobile telecommunications customers outside  the home service provider's licensed service area.  (v)  "Serving carrier" shall mean a facilities-based carrier providing mobile  telecommunications  service  to  a   mobile   telecommunications customer  outside  the  home  service  provider's or reseller's licensed service area.  (28) "Taxing jurisdiction" shall mean any of the several  states,  the District  of  Columbia,  or  any  territory  or possession of the United  States, any municipality, city, county, township, parish, transportation district, or assessment jurisdiction, or any other political subdivision within the territorial limits of the United States with the authority to impose a tax, charge, or fee.   * (29)  "E85" shall have the same meaning as in subdivision twenty-two of section two hundred eighty-two of this chapter.   * NB Repealed September 1, 2026   * (30)  "B20"  shall  have  the  same  meaning   as   in   subdivision twenty-three of section two hundred eighty-two of this chapter.   * NB Repealed September 1, 2026   * (31) "CNG" shall have the same meaning as in subdivision twenty-four of section two hundred eighty-two of this chapter.   * NB Repealed September 1, 2026   * (32)  "Hydrogen"  shall  have  the  same  meaning  as in subdivision twenty-five of section two hundred eighty-two of this chapter.   * NB Repealed September 1, 2026  (33) Modular  home.  A  one-  to  three-family  residential  structure constructed  at  the  building site from modular home modules, where the modules are connected and such  structure  is  finished  using  building materials or other tangible personal property at the building site, such modular home conforms to the building and other codes applicable to one- to three-family site-built homes in the jurisdiction where such building site  is  located,  and such finished modular home constitutes a capital improvement. "Modular home" shall not include (i) a structure or portion of a  structure  built  on-site,  whether  built  by  the  modular  home installer  or  another person, using building materials delivered to the site, even if some of such materials  were  manufactured,  produced,  or assembled  off-site,  such  as,  by  way  of  example  and not by way of limitation, concrete blocks, windows, door units, wall or  roof  panels, trusses  and  dormers; (ii) a shed, gazebo, any unattached garage or the like (even if made or built by a manufacturer of modular home  modules); or (iii) a mobile home.  (34)  Transportation service. The service of transporting, carrying or conveying a person or persons by livery service;  whether  to  a  single destination  or  to  multiple destinations; and whether the compensation paid by or on behalf of the passenger is based on  mileage,  trip,  time consumed  or  any  other  basis.  A service that begins and ends in this state is deemed intra-state even if it passes outside this state  during a  portion of the trip. However, transportation service does not include transportation of persons in connection  with  funerals.  Transportation service  includes  transporting,  carrying, or conveying property of the person being transported, whether owned  by  or  in  the  care  of  such person.  Notwithstanding the foregoing, transportation service shall not include a TNC prearranged trip, as  that  term  is  defined  in  article forty-four-B  of  the  vehicle  and  traffic law, that is subject to tax under article twenty-nine-B of this chapter.  In  addition  to  what  is included  in  the  definition  of  "receipt"  in paragraph three of this subdivision, receipts from the sale of transportation service subject to tax  include  any  handling,   carrying,   baggage,   booking   service, administrative,  mark-up,  additional,  or  other charge, of any nature, made in conjunction with  the  transportation  service.  Livery  service means  service  provided by limousine, black car or other motor vehicle, with a driver, but excluding (i) a taxicab, (ii) a bus, and (iii), in  a city of one million or more in this state, an affiliated livery vehicle, and  excluding any scheduled public service. Limousine means any vehicle with a seating capacity of up to fourteen persons, excluding the driver, and any vehicle with a seating capacity of between  fifteen  and  twenty persons,  excluding  the driver, that has only two axles and four tires.  "Bus" means any motor vehicle  with  a  seating  capacity  of  at  least fifteen  persons,  excluding the driver, that does not otherwise qualify as a limousine. Black car means a for-hire  vehicle  dispatched  from  a central  facility.  "Affiliated  livery  vehicle" means a for-hire motor vehicle with a seating capacity of up  to  six  persons,  including  the driver,  other  than a black car or luxury limousine, that is authorized and licensed by the taxi and limousine  commission  of  a  city  of  one million  or  more  to  be dispatched by a base station located in such a city and regulated by  such  taxi  and  limousine  commission;  and  the charges  for service provided by an affiliated livery vehicle are on the basis of flat rate, time, mileage, or zones  and  not  on  a  garage  to garage basis.  (35)  Modular  home  modules.  The  component  sections  that  will be installed on-site to construct a modular home, each of which sections is (i) engineered and manufactured in a factory, (ii) shipped or  delivered to the building site on a truck or other vehicle, (iii) installed at the site,  on a permanent foundation, to become part of the modular home and (iv) not by itself suitable for occupancy. Every group of  modules  that will be installed in this state as a modular home, or, if a modular home is to be built from a single module, that single module, shall, prior to shipment  from the place where it is made, bear the insignia of approval issued by the department of state pursuant to the authority  of  article eighteen  of  the  executive  law  and  regulations  thereunder; and the department of state shall cooperate with the  commissioner  and  furnish such  information as the commissioner requests to carry out this article and its purposes. A modular home module shall include tangible  personal property  shipped  or  delivered with the module from the factory by the manufacturer at the same time the module is shipped or  delivered,  such as  exterior  siding,  roof  shingles,  roof  vent  pipes, interior trim pieces, paint, and interior doors, and supplies  required  and  used  to install  them,  but only if that property (i) was engineered or designed to be an integral component part of the  module,  (ii)  matches,  or  is essential  to the functioning of, the module, (iii) was not installed in the module at the time the module was made  only  because  it  would  be damaged during, or interfere with, shipping or delivery of the module to the  building  site, (iv) will be permanently installed in the module at the building site by the manufacturer or by the purchaser of the  module or  by  the  contractor  of either of them, (v) is listed in full on the contract, bill of sale, invoice or other memorandum of  price  given  to the  purchaser or buyer, or in an addendum thereto, true copies of which the manufacturer shall retain as part of the records required to be kept by this article and make available on request, and (vi) is  included  in the  sale  price of the module, without any additional charge. A modular home module shall not  include  (i)  furniture,  fixtures,  furnishings, appliances,  attachments  or  similar  tangible  personal  property  not incorporated as component parts  of  the  module  at  the  time  of  its manufacture  or  (ii)  building  materials  or  other  tangible personal property used to connect the modules or finish the modular home  at  the building site.  (36) New modular home module. A modular home module sold for the first time at retail.  (37)  Electronic  news  service. (i) A service delivered, furnished or provided to or accessed by the  purchaser  electronically  or  digitally that meets all of the following conditions:  (A)  The  service's  predominant  purpose  is the presentation of news content, which it prominently features;  (B) The service's news content  (I)  includes  general  news  that  is accessible  without use of a search function; (II) is newly published or  updated at least daily unless the service specifies some other interval, provided, however, that the  news  content  must  be  newly  updated  or published  within a twenty-four hour period that precedes or immediately follows  a time when the non-news content is newly published or updated; and (III) is predominantly purchased from contracted  wire  services  or written  or produced by the employees or engaged independent contractors of the person providing the service,  including,  but  not  limited  to, employees  or  engaged  independent contractors of any affiliate of such person;  (C) The service is available to the public;  (D) The service holds itself out as  a  "news  service,"  "newspaper," "magazine,"  "periodical," "journal," "post," or words of similar import and does not hold itself out as something other than one of  such  terms or a term of similar import.  (E)  The service has continuity as to its title and the general nature of its content over time;  (F) The service is not, in whole or in substantial  part,  a  listing, catalog, database, or compilation;  (G)   The   only   search   function  the  service  offers  without  a separately-stated, reasonable charge is a search of the service's or  of any of its affiliates' present or past news content. Provided, a service that  satisfies  all the clauses of this subparagraph except this clause may still qualify as an electronic news service  for  purposes  of  this paragraph  if  the  provider  of  the service can show that the non-news content available through the search function is  merely  an  incidental part of the service, including, for example, by showing that the cost to the  person  providing  the  service  of  any non-news content available through the search function is less than the  cost  to  that  person  of providing  the  news  content  available  through the service. Provided, further, that a purchaser's access to the service's search function  for which  there  is a separately-stated, reasonable charge to the purchaser shall be treated separately and is  not  relevant  as  to  whether  this clause is satisfied.  (ii)  The  following  definitions  apply  to  subparagraph (i) of this paragraph and subdivision (gg) of section eleven hundred fifteen of this article:  (A) "News content" means the  articles,  photographs,  and  video  and audio  material concerning general news or specialized news and does not include listings, advertisements, catalogs, compilations, databases,  or the like.  (B) "Non-news content" means any information other than news content.  (C)  "Article"  means  a  prose  composition,  including commentaries, reviews, editorials, op-eds, letters to the editor, and reader  comments on  articles.  The  term  does  not  include  listings,  advertisements, catalogs, compilations, databases, or the like.  (D) "General news" means matters of general interest  and  reports  of current events.  (E)  "Specialized  news" means matters of a specialized interest, such as  legal,  mercantile,  financial,  theatrical,   entertainment   news, political, religious, or sporting matters.  (F) "Cap amount" means three hundred percent of the annualized average daily  newsstand  price  of  the three newspapers with the largest total paid national daily circulation. The commissioner  shall  determine  the cap  amount  annually  and  shall  cause  it  to  be  published  on  the department's website and give other appropriate general notice  thereof. The  commissioner shall determine and publish the cap amount annually by April first based on prices charged during the first week of January  of that  year, which cap amount shall apply for the succeeding twelve-month  period  commencing  June  first  and  ending   May   thirty-first.   The calculation  and  publication  of the cap amount under this clause 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.  (G) "Affiliate" means, with respect to any person,  any  other  person that,  directly  or  indirectly  through  one  or  more  intermediaries, controls, or is controlled by, or is under  common  control  with,  such person,  and the term "control" (including the terms "controlled by" and "under  common  control  with")  means  the  possession,   directly   or indirectly,  of  the  power  to  direct  or  cause  the direction of the management and policies of such person,  whether  through  ownership  of voting securities, by contract or otherwise.  (38)  Electronic periodical. (i) A publication delivered, furnished or provided to or accessed by the  purchaser  electronically  or  digitally that meets all of the following conditions:  (A)  The publication's predominant purpose is the presentation of news content, which it prominently features;  (B) The publication is published at  stated  intervals,  at  least  as frequently  as four times a year but no more frequently than weekly, and is not updated between issues.  However,  the  incidental  provision  of additional  news content between issues will not prevent the requirement in this clause from being satisfied. In  determining  whether  the  news content  added  between  issues  is  incidental,  among  the factors the commissioner is to consider is the amount  of  the  news  content  added between  issues relative to the news content in preceding issues and the frequency of the provision of additional news  content  between  issues. Provided  that  the  display of reader comments or letters to the editor between issues does not affect whether this clause is satisfied.  (C) The publication's news content is purchased from  contracted  wire services  or  written  or  produced  by  multiple  employees  or engaged independent  contractors  of  the  person  providing  the   publication, including,   but  not  limited  to,  employees  or  engaged  independent contractors of any affiliate of such person;  (D) The publication is available to the public;  (E) The publication holds itself out as a "magazine," "periodical"  or words  of similar import and does not hold itself out as something other than a "magazine," "periodical," or words of similar import;  (F) The publication has continuity as to its  title  and  the  general nature of its content over time;  (G)  The  publication  is  not,  in  whole  or  in substantial part, a listing, catalog, database, or compilation; and  (H)  The  only  search  function  the  publication  offers  without  a separately-stated, reasonable charge is a search of the publication's or of  an  affiliate's  present  or  past  news  content.  However: (I) the publication's provision of access, at no additional charge, to a  search engine  that,  apart  from  the  service,  is otherwise available to the public for free is not relevant as to whether this clause is  satisfied; and  (II) the publication's provision of access to a search function for which there is a separately-stated, reasonable charge to  the  purchaser shall  be  treated  separately  and  is  not relevant as to whether this clause is satisfied.  (ii) For purposes of  subparagraph  (i)  of  this  paragraph  and  the exemption  provided  for  electronic  periodicals in subdivision (gg) of section eleven hundred fifteen of this article, "articles" has the  same meaning as in subparagraph (ii) of paragraph thirty-seven of subdivision (b)  of this section and "news content" means articles, photographs, and video and audio material devoted to literature, the sciences, the  arts,  news,  an  industry,  profession,  sport or other field of endeavor, and does  not  include  listings,  advertisements,  catalogs,  compilations, databases, or the like.  (c)  When  used  in  this  article for the purposes of the tax imposed under subdivision (e) of section  eleven  hundred  five,  the  following terms shall mean:  (1)  Hotel.  A  building  or portion of it which is regularly used and kept open as such for the lodging of guests. The term  "hotel"  includes an  apartment  hotel,  a  motel,  boarding house or club, whether or not meals are served.  (2) Occupancy. The use or possession, or  the  right  to  the  use  or possession,  of  any  room  in a hotel. "Right to the use or possession" includes the rights of a room remarketer as described in paragraph eight of this subdivision.  (3) Occupant. A person who, for a consideration, uses,  possesses,  or has  the  right  to use or possess, any room in a hotel under any lease, concession, permit, right of access, license to use or other  agreement, or  otherwise.  "Right  to use or possess" includes the rights of a room remarketer as described in paragraph eight of this subdivision.  (4) Operator. Any person operating a hotel. Such term shall include  a room  remarketer  and  such room remarketer shall be deemed to operate a hotel, or portion thereof, with respect to which  such  person  has  the rights of a room remarketer.  (5)  Permanent  resident. Any occupant of any room or rooms in a hotel for at least ninety consecutive days shall  be  considered  a  permanent resident with regard to the period of such occupancy.  (6)  Rent.  The  consideration  received  for occupancy, including any service or other charge or amount required to be paid as a condition for occupancy, valued in money, whether received in money or  otherwise  and whether  received by the operator or a room remarketer or another person on behalf of either of them.  (7) Room. Any room or rooms of any kind in any part or  portion  of  a hotel,  which  is  available for or let out for any purpose other than a place of assembly.  (8) Room remarketer. A person who reserves, arranges for, conveys,  or furnishes  occupancy, whether directly or indirectly, to an occupant for rent in an  amount  determined  by  the  room  remarketer,  directly  or indirectly,  whether  pursuant  to  a  written  or other agreement. Such person's ability or  authority  to  reserve,  arrange  for,  convey,  or furnish  occupancy,  directly  or  indirectly,  and  to  determine  rent therefor, shall be the "rights of a room remarketer". A room  remarketer is not a permanent resident with respect to a room for which such person has the rights of a room remarketer.  (d)  When  used  in this article for purposes of the tax imposed under subdivision (f) of section eleven  hundred  five,  the  following  terms shall mean:  (1)  Active  annual  member. A member who is not a life member but who enjoys full club privileges as distinguished from the privileges enjoyed by a person holding a nonresident membership, an  associate  membership, or other partial or restricted membership.  (2)  Admission  charge.  The  amount paid for admission, including any service charge and any charge for entertainment or amusement or for  the use of facilities therefor.  (3)  Amusement  charge.  Any  admission charge, dues or charge of roof garden, cabaret or other similar place.  (4) Charge of a roof garden,  cabaret  or  other  similar  place.  Any charge  made  for  admission,  refreshment, service, or merchandise at a roof garden, cabaret or other similar place.  (5) Dramatic or musical arts admission charge.  Any  admission  charge paid for admission to a theatre, opera house, concert hall or other hall or  place  of  assembly  for  a  live dramatic, choreographic or musical performance.  (6)  Dues.  Any  dues  or  membership  fee  including  any assessment, irrespective of the purpose for which made, and any charges  for  social or sports privileges or facilities, except charges for sports privileges or facilities offered to members' guests which would otherwise be exempt if paid directly by such guests.  (7)  Initiation fee. Any payment, contribution, or loan, required as a condition  precedent  to  membership,  whether  or  not  such   payment, contribution  or  loan  is  evidenced  by  a  certificate of interest or indebtedness or share of  stock,  and  irrespective  of  the  person  or organization to whom paid, contributed or loaned.  (8)  Lessor.  Any  person  who is the owner, licensee or lessee of any place of amusement or roof garden, cabaret or other similar place  which he  leases,  subleases  or  grants a license to use to other persons who make amusement charges or admission charges.  (9) Patron. Any  person  who  pays  an  amusement  charge  or  who  is otherwise  required to pay the tax imposed under such subdivision (f) of section eleven hundred five.  (10)  Place  of  amusement.  Any  place  where  any   facilities   for entertainment, amusement, or sports are provided.  (11) Recipient. Any person who collects or receives or is under a duty to collect an amusement charge.  (12)  Roof  garden,  cabaret  or other similar place. Any roof garden, cabaret or other similar place which furnishes a public performance  for profit,  but not including a place where merely live dramatic or musical arts performances are offered in conjunction with the serving or selling of food, refreshment or merchandise, so long as such serving or  selling of  food,  refreshment  or  merchandise  is  merely  incidental  to such performances.  (13) Social or athletic club. Any club  or  organization  of  which  a material purpose or activity is social or athletic.  (14)  Honorary  member.  A  membership granted in a social or athletic club without payment of dues which may  provide  full  or  partial  club privileges.  (e)  When  used  in this article for the purposes of the taxes imposed under subdivision (a) of section eleven hundred five of this article and by section eleven hundred ten of this article, the following terms shall mean:  (1) Marketplace provider. A person who, pursuant to an agreement  with a marketplace seller, facilitates sales of tangible personal property by such  marketplace  seller  or  sellers.  A person "facilitates a sale of tangible personal property" for purposes  of  this  paragraph  when  the person  meets both of the following conditions: (A) such person provides the forum in which, or by means of which, the sale takes  place  or  the offer  of  sale  is  accepted,  including  a  shop,  store, or booth, an internet website, catalog, or similar forum; and (B) such person  or  an affiliate  of  such person collects the receipts paid by a customer to a marketplace  seller  for  a  sale  of  tangible  personal  property,  or contracts  with  a third party to collect such receipts. For purposes of this paragraph, a "sale of tangible personal property" shall not include the rental of a passenger car as described  in  section  eleven  hundred sixty of this chapter but shall include a lease described in subdivision (i)  of  section  eleven hundred eleven of this article. For purposes of this paragraph, persons are affiliated if one person  has  an  ownership interest  of  more  than  five  percent,  whether direct or indirect, in  another, or where an ownership  interest  of  more  than  five  percent, whether  direct  or indirect, is held in each of such persons by another person or by a group of other persons that are affiliated  persons  with respect  to  each  other.  Notwithstanding anything in this paragraph, a person who is  not  otherwise  registered  pursuant  to  section  eleven hundred  thirty  four  of  this article is not a marketplace provider if such  person  has  no  physical  presence  in  New  York  and,  for  the immediately  preceding  four quarterly periods ending on the last day of February, May, August and November, can show that the  cumulative  total gross receipts of sales it has made or facilitated of property delivered in this state does not exceed five hundred thousand dollars or that such person  has  not  made  or  facilitated  more  than one hundred sales of property delivered in this state. However,  such  person  may  elect  to register  as  a  marketplace  provider,  and,  once  registered, will be subject to the provisions of this article.  (2) Marketplace seller. Any person, whether  or  not  such  person  is required  to  obtain  a  certificate  of  authority under section eleven hundred thirty-four of  this  article,  who  has  an  agreement  with  a marketplace   provider   under   which  the  marketplace  provider  will facilitate sales of tangible personal property by such person within the meaning of paragraph one of this subdivision.