2023 New York Laws › GMU - General Municipal › Article 18-A - Industrial Development › Title 1 - Agencies, Organization and Powers › 875 - Special Provisions Applicable to State Sales and Compensating Use Taxes and Certain Types of Facilities.

§  875.  Special provisions applicable to state sales and compensating
use taxes and certain types of  facilities.  1.  For  purposes  of  this
section:    "state sales and use taxes" means sales and compensating use
taxes and fees imposed by article twenty-eight or twenty-eight-A of  the
tax  law  but  excluding  such taxes imposed in a city by section eleven
hundred seven or eleven hundred  eight  of  such  article  twenty-eight.
"IDA" means an industrial development agency established by this article
or an industrial development authority created by the public authorities
law.  "Commissioner" means the commissioner of taxation and finance.
2.  An  IDA  shall keep records of the amount of state and local sales
and use tax exemption benefits provided to each project and  each  agent
or  project  operator  and  shall  make  such  records  available to the
commissioner upon request. Such IDA shall also, within  thirty  days  of
providing  financial assistance to a project that includes any amount of
state sales and use tax exemption benefits, report to  the  commissioner
the  amount of such benefits for such project, the project to which they
are being provided,  together  with  such  other  information  and  such
specificity  and  detail  as the commissioner may prescribe. This report
may be made in conjunction with the statement  required  by  subdivision
nine  of  section  eight hundred seventy-four of this title or it may be
made as a separate report, at the discretion of the commissioner. An IDA
that fails to make such records available to the commissioner or to file
such reports shall be prohibited from providing state sales and use  tax
exemption  benefits for any project unless and until such IDA comes into
compliance with all such requirements.
3. (a) An  IDA  shall  include  within  its  resolutions  and  project
documents  establishing  any  project  or appointing an agent or project
operator for any project the terms and conditions in  this  subdivision,
and  every  agent, project operator or other person or entity that shall
enjoy state sales and use tax exemption  benefits  provided  by  an  IDA
shall  agree  to  such  terms  as  a condition precedent to receiving or
benefiting from such state sales and use exemptions benefits.
(b) The IDA shall recover, recapture,  receive,  or  otherwise  obtain
from  an  agent,  project operator or other person or entity state sales
and use exemptions benefits taken or purported to be taken by  any  such
person to which the person is not entitled or which are in excess of the
amounts  authorized or which are for property or services not authorized
or taken in cases where such agent or project operator, or other  person
or  entity  failed  to  comply  with a material term or condition to use
property or services in the manner required by  the  person's  agreement
with the IDA.  Such agent or project operator, or other person or entity
shall  cooperate  with  the  IDA  in  its efforts to recover, recapture,
receive, or  otherwise  obtain  such  state  sales  and  use  exemptions
benefits and shall promptly pay over any such amounts to the IDA that it
requests.  The  failure  to  pay  over  such amounts to the IDA shall be
grounds for the commissioner to assess and determine state sales and use
taxes due from the person under article twenty-eight  of  the  tax  law,
together with any relevant penalties and interest due on such amounts.
(c)  If  an  IDA recovers, recaptures, receives, or otherwise obtains,
any amount of state sales and use tax exemption benefits from an  agent,
project operator or other person or entity, the IDA shall, within thirty
days  of  coming  into  possession  of  such  amount,  remit  it  to the
commissioner,  together  with  such  information  and  report  that  the
commissioner  deems necessary to administer payment over of such amount.
An IDA shall  join  the  commissioner  as  a  party  in  any  action  or
proceeding  that  the  IDA  commences  to recover, recapture, obtain, or
otherwise seek the return of, state sales and use tax exemption benefits
from an agent, project operator or other person or entity.
(d) An IDA shall prepare an annual  compliance  report  detailing  its
terms  and conditions described in paragraph (a) of this subdivision and
its activities and efforts to recover, recapture, receive, or  otherwise
obtain  state  sales  and use exemptions benefits described in paragraph
(b)  of  this  subdivision,  together with such other information as the
commissioner and the commissioner of economic development  may  require.
The  report  required  by  this  subdivision  shall  be  filed  with the
commissioner,  the  director  of  the  division  of  the   budget,   the
commissioner   of  economic  development,  the  state  comptroller,  the
governing body of the municipality for  whose  benefit  the  agency  was
created,  and  may  be  included  with  the  annual  financial statement
required by paragraph (b) of subdivision one of  section  eight  hundred
fifty-nine of this title. Such report required by this subdivision shall
be  filed  regardless  of  whether  the  IDA  is  required  to file such
financial statement described by such paragraph (b) of  subdivision  one
of   section   eight   hundred   fifty-nine.  The  failure  to  file  or
substantially complete the report required by this subdivision shall  be
deemed to be the failure to file or substantially complete the statement
required  by such paragraph (b) of subdivision one of such section eight
hundred fifty-nine, and the consequences shall be the same  as  provided
in  paragraph  (e)  of  subdivision  one  of  such section eight hundred
fifty-nine.
(e) This subdivision shall apply to any amounts of state sales and use
tax exemption benefits that an IDA recovers,  recaptures,  receives,  or
otherwise  obtains,  regardless of whether the IDA or the agent, project
operator  or  other  person  or  entity  characterizes   such   benefits
recovered,  recaptured, received, or otherwise obtained, as a penalty or
liquidated or contract damages or  otherwise.  The  provisions  of  this
subdivision  shall  also  apply  to any interest or penalty that the IDA
imposes on any such amounts or that  are  imposed  on  such  amounts  by
operation  of law or by judicial order or otherwise. Any such amounts or
payments that  an  IDA  recovers,  recaptures,  receives,  or  otherwise
obtains,  together  with  any  interest  or  penalties thereon, shall be
deemed to be state sales and use taxes and the  IDA  shall  receive  any
such  amounts  or  payments,  whether  as  a  result  of court action or
otherwise, as trustee for and on account of the state.
4. The commissioner shall deposit and dispose of  any  amount  of  any
payments  or  moneys  received from or paid over by an IDA or from or by
any person or entity, or received pursuant to an  action  or  proceeding
commenced  by  an  IDA, together with any interest or penalties thereon,
pursuant to subdivision three of this section, as state  sales  and  use
taxes  in  accord with the provisions of article twenty-eight of the tax
law. The amount of any  such  payments  or  moneys,  together  with  any
interest  or penalties thereon, shall be attributed to the taxes imposed
by sections eleven hundred five and eleven hundred ten, on the one hand,
and section eleven hundred nine of the tax law, on the other hand, or to
any like taxes or fees imposed by such article, based on the  proportion
that the rates of such taxes or fees bear to each other, unless there is
evidence  to  show  that only one or the other of such taxes or fees was
imposed or received or paid over.
5. The statement that an  IDA  is  required  by  subdivision  nine  of
section  eight  hundred  seventy-four  of  this article to file with the
commissioner shall not be considered an exemption or  other  certificate
or  document  under  article twenty-eight or twenty-nine of the tax law.
The IDA shall not represent to any agent,  project  operator,  or  other
person  or  entity that a copy of such statement may serve as a sales or
use tax exemption certificate or document. No agent or project  operator
may  tender  a  copy of such statement to any person required to collect

sales or use taxes as the basis to make any purchase exempt from tax. No
such person required to collect sales or use taxes  may  accept  such  a
statement  in  lieu  of collecting any tax required to be collected. The
civil  and  criminal penalties for misuse of a copy of such statement as
an exemption certificate or document or for failure to  pay  or  collect
tax  shall be as provided in the tax law. In addition, the use by an IDA
or agent, project operator, or other person or entity of such statement,
or the IDA's recommendation of the use or tendering of  such  statement,
as  such  an  exemption  certificate  or document shall be deemed to be,
under articles  twenty-eight  and  thirty-seven  of  the  tax  law,  the
issuance of a false or fraudulent exemption certificate or document with
intent to evade tax.
6.  The  commissioner  is  hereby  authorized  to  audit  the records,
actions, and proceedings of  an  IDA  and  of  its  agents  and  project
operators  to  ensure  that the IDA and its agents and project operators
comply with all the requirements of this section.  Any  information  the
commissioner  finds  in  the  course  of  such  audit may be used by the
commissioner to assess and determine state and local taxes of the  IDA's
agent or project operator.
7.  In  addition  to any other reporting or filing requirements an IDA
has under this article or other law, an IDA shall also report  and  make
available on the internet, without charge, copies of its resolutions and
agreements  appointing an agent or project operator or otherwise related
to any project it establishes. It shall also  provide,  without  charge,
copies  of  all such reports and information to a person who asks for it
in writing or in person. The IDA may, at the request  of  its  agent  or
project  operator  delete from any such copies posted on the internet or
provided to a person described in the prior  sentence  portions  of  its
records that are specifically exempted from disclosure under article six
of the public officers law.
8.  In consultation with the commissioner of economic development, the
commissioner of taxation and finance is hereby authorized to adopt rules
and  regulations  and  to  issue   publications   and   other   guidance
implementing the provisions of this section and of the other sections of
this  article relating to any state or local tax or fee, or exemption or
exclusion therefrom, that the commissioner administers and that  may  be
affected  by  any  provision  of  this  article,  and any such rules and
regulations of the commissioner shall have the  same  force  and  effect
with  respect  to such taxes and fees, or amounts measured in respect of
them, as if they had been adopted by the commissioner  pursuant  to  the
authority of the tax law.
9.  To  the  extent  that a provision of this section conflicts with a
provision of any other section of this article, the provisions  of  this
section shall control.