2023 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. (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.
(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  and  peer-to-peer
car sharing as described in section nine hundred of the general business
law.  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.