2023 New York Laws › TAX - Tax › Article 28 - Sales and Compensating Use Taxes › Part 3 - Exemptions › 1119 - Enacted Without Section Heading.

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