2023 New York Laws › TAX - Tax › Article 1 - Short Title; Definitions; Miscellaneous › 5-A - Certification of Registration to Collect Sales and Compensating Use Taxes by Certain Contractors, Affiliates and Subcontractors.

§ 5-a. Certification of registration to collect sales and compensating
use  taxes by certain contractors, affiliates and subcontractors. 1. For
purposes of this section, the following terms shall have  the  specified
meanings:
(a)   "Affiliate"   means  a  person  which  directly,  indirectly  or
constructively
(1) controls another person;
(2) is controlled by another person; or
(3) is, along with another person,  under  the  control  of  a  common
parent.
"Control"  means  possession  of  the  power  to  direct, or cause the
direction of, the management and policies of another person.
(b) "Commodities" means commodities as defined in  article  eleven  of
the state finance law.
(c)  (1)  "Contract"  means  an  agreement  between a contractor and a
covered agency for the purchase  by  the  covered  agency,  pursuant  to
article  eleven  of  the  state  finance law, of commodities or services
having a value in excess of one hundred thousand dollars.
The term "contract" shall also  include  a  centralized  contract,  as
defined  in  article  eleven  of  the state finance law, with a value in
excess of one hundred thousand dollars.
(2) The term "contract" shall not include:
(A) a purchase by a covered agency of commodities or services  with  a
value  in  excess  of  one  hundred thousand dollars based upon a formal
mini-bid solicitation pursuant to a centralized contract;
(B) a grant or an intergovernmental agreement; or
(C) a purchase of commodities or services from a  "preferred  source,"
as such term is defined in article eleven of the state finance law.
(3)  Multiple purchases of commodities or services by a covered agency
from the same contractor  during  a  state  fiscal  year  shall  not  be
aggregated  for  purposes  of  determining  whether the greater than one
hundred thousand dollar threshold described in this subdivision has been
met.
(d) "Contractor" means a person awarded a contract.
(e) "Covered agency" means a "state agency" for  purposes  of  article
eleven  of  the  state finance law, the legislature, the judiciary, or a
public authority or public benefit corporation at  least  one  of  whose
members is appointed by the governor.
(f) "Department" means the department of taxation and finance.
(g)  "Person"  means  an  individual,  partnership,  limited liability
company, society, association,  joint  stock  company,  or  corporation;
provided,   however,  that  a  "person"  shall  not  include  a  "public
corporation" or an "education corporation," as such terms are defined in
section sixty-six of the  general  construction  law,  a  not-for-profit
corporation  whose  contracts are subject to approval in accordance with
article eleven-B of the  state  finance  law,  a  board  of  cooperative
educational  services created pursuant to article forty of the education
law, or a soil and  water  conservation  district  created  pursuant  to
section five of the soil and water conservation districts law.
(h) "Sales and compensating use taxes" means state and local sales and
compensating  use  taxes imposed by article twenty-eight and pursuant to
the  authority  of  article  twenty-nine  of  this  chapter,  which  are
administered by the commissioner.
(i)  "Sales  tax  quarter" means a quarterly period ending on the last
day of February, May, August or November.
(j) "Services" means services as defined  in  article  eleven  of  the
state finance law.
(k)  "Subcontractor" means a person engaged by a contractor or another
subcontractor to perform a portion of the contractor's obligations under
a contract.
(l) "State" means the state of New York.
(m)  "Taxable  services" means services, the receipts from the sale of
which are taxable by article twenty-eight or article twenty-nine of this
chapter.
(n) The terms "receipts," "sale,"  "tangible  personal  property"  and
"vendor"  have  the  meanings  given  in  article  twenty-eight  of this
chapter.
2. (a) Notwithstanding any provision of law to the contrary, before  a
contract   may   take  effect,  the  contractor  must  comply  with  the
requirements of subparagraphs one and two of this paragraph.
(1)  The  contractor  must  file  a  written  certification  with  the
department, made under penalty of perjury, stating that:
(A)  if  the contractor made sales delivered by any means to locations
within the state of  tangible  personal  property  or  taxable  services
having  a  value  in excess of three hundred thousand dollars during the
immediately  preceding  consecutive  four  sales   tax   quarters,   the
contractor  is  registered  for  sales and compensating use tax purposes
with the department under sections eleven hundred thirty-four and twelve
hundred fifty-three of this chapter. If  the  contractor  did  not  make
sales  delivered  by any means to locations within the state of tangible
personal property or taxable services having a value in excess of  three
hundred  thousand  dollars during such four sales tax quarters, then the
contractor shall so certify;
(B) if any affiliate of the contractor made  sales  delivered  by  any
means  to  locations  within  the state of tangible personal property or
taxable services having a value in  excess  of  three  hundred  thousand
dollars  during  the  immediately  preceding  consecutive four sales tax
quarters, to the best of the contractor's knowledge, each such affiliate
is registered for sales and  compensating  use  tax  purposes  with  the
department  under sections eleven hundred thirty-four and twelve hundred
fifty-three of this  chapter.  If  the  contractor  does  not  have  any
affiliates,  or  does not have any affiliates which made sales delivered
by any means to locations within the state of tangible personal property
or taxable services having a value in excess of three  hundred  thousand
dollars  during  such four sales tax quarters, then the contractor shall
so certify; and
(C) if  any  subcontractor  made  sales  delivered  by  any  means  to
locations  within  the  state  of  tangible personal property or taxable
services having a value in excess  of  three  hundred  thousand  dollars
during the immediately preceding consecutive four sales tax quarters, to
the  best  of  the  contractor's  knowledge,  each such subcontractor is
registered  for  sales  and  compensating  use  tax  purposes  with  the
department  under sections eleven hundred thirty-four and twelve hundred
fifty-three of this  chapter.  If  the  contractor  does  not  have  any
subcontractors,   or  there  are  no  subcontractors  which  made  sales
delivered by any  means  to  locations  within  the  state  of  tangible
personal  property or taxable services having a value in excess of three
hundred thousand dollars during such four sales tax quarters,  then  the
contractor shall so certify.
(D) The certification required by this subparagraph shall include such
additional  information as the department deems necessary for the proper
administration of this section.
(E) The certification required by this subparagraph need only be filed
with the department once and, once filed, shall be deemed to satisfy the
requirements  of  this  subparagraph  for  purposes  of  any  subsequent

contract  to which the contractor is a party; provided, however, that if
the contractor, or an affiliate or subcontractor, is  not  certified  as
registered  with  the  department  for  sales  and  compensating use tax
purposes   on   the   contractor's   original  certification,  and  such
contractor, affiliate or subcontractor  makes  sales  delivered  by  any
means  to  locations  within  the state of tangible personal property or
taxable services having a value in  excess  of  three  hundred  thousand
dollars  during any consecutive four sales tax quarters which follow the
sales tax quarter in which the contractor's original  certification  was
made,  then  the  contractor  shall,  as  soon  as  possible  after such
occurrence, file an amended written certification with  the  department,
made   under  penalty  of  perjury,  indicating  that  such  contractor,
affiliate or  subcontractor,  as  applicable,  is  registered  with  the
department for sales and compensating use tax purposes.
(2)  The  contractor  shall  also provide the procuring covered agency
with a written certification, made under  penalty  of  perjury,  stating
that:
(A)  the  contractor  has  filed  the certification prescribed by this
section with the department, and that such certification is correct  and
complete, or
(B)   such  certification  is  not  required  to  be  filed  with  the
department, and explaining the reasons for such determination.
(C) the certification required by this subparagraph shall be  included
in  the procurement record (as such term is defined in article eleven of
the  state  finance  law),  or  similar  documentation  if   the   state
comptroller is not required by law to approve the contract.
(D)  any  question  as to the accuracy of the contractor certification
described in clause (B) of this subparagraph shall be  resolved  by  the
contracting  covered  agency,  in  consultation,  as necessary, with the
state comptroller and the department.
(b) A contractor, affiliate of the contractor, or subcontractor  which
registers  for  sales  and  compensating use tax purposes under sections
eleven hundred  thirty-four  and  twelve  hundred  fifty-three  of  this
chapter in order to comply with the provisions of this subdivision shall
be  a  vendor  and shall comply with and be subject to the provisions of
articles twenty-eight and twenty-nine of this chapter.
(c) The certification requirements prescribed by this  subdivision  in
order  for  a  contract to take effect shall be in addition to any other
requirements prescribed by law relating to the formation of contracts to
which a covered agency is a party.
3. (a) If a contract has taken effect, and the terms of such  contract
provide  that  it  may  be  renewed  upon  expiration  of  an initial or
subsequent term, then the contractor shall, no later than the day  prior
to  the commencement date of the applicable renewal term, certify to the
contracting covered agency in writing, and  under  penalty  of  perjury,
that:
(1)  the  contractor  has  filed  the certification prescribed by this
section with the department, and that such certification is correct  and
complete, or
(2)  that  such  certification  is  not  required to be filed with the
department, and explains the reasons for such determination.
(3) Any question as to the accuracy of  the  contractor  certification
described in subparagraph two of this paragraph shall be resolved by the
contracting  covered  agency,  in  consultation,  as necessary, with the
state comptroller and the department.
(b) The certification required by paragraph (a)  of  this  subdivision
shall  be made a part of the procurement record (as such term is defined

in article eleven of the state finance law), or similar documentation if
the state comptroller is not required by law to approve the contract.
(c)  If  the  contractor  fails  to make the certification required by
paragraph (a) of this  subdivision,  or  if,  during  the  term  of  the
contract,  the  department  or  the  covered  agency discovers that such
certification is false, then such failure or false  certification  shall
be  a material breach of the contract, and the contract shall be subject
to termination if the covered agency determines that such action  is  in
the best interests of the state.
(d)  A contractor, affiliate of the contractor, or subcontractor which
registers for sales and compensating use  tax  purposes  under  sections
eleven  hundred  thirty-four  and  twelve  hundred  fifty-three  of this
chapter in order to comply with the provisions of paragraph (a) of  this
subdivision  shall  be  a vendor and shall comply with and be subject to
the provisions of articles twenty-eight and twenty-nine of this chapter.
4. The provisions of this section shall not apply to a contract if the
procuring covered agency and the state comptroller, or  other  approving
authority  if  the  state  comptroller  is  not  required to approve the
contract, find in writing that the contract is necessary to  address  an
"emergency,"  within  the meaning of article eleven of the state finance
law, or to ensure the public health, safety  or  welfare.  Such  written
finding shall explain the reasons supporting such determination.