2023 New York Laws › TAX - Tax › Article 28 - Sales and Compensating Use Taxes › Part 2 - Imposition of Taxes › 1111 - Special Rules for Computing Receipts and Consideration.

§  1111.  Special rules for computing receipts and consideration.  (a)
The retail sales tax imposed under subdivision  (a)  of  section  eleven
hundred  five  of  this  part and the compensating use tax imposed under
section eleven hundred ten of this part, when  computed  in  respect  to
tangible personal property wherever manufactured, processed or assembled
and  used  by  such  manufacturer, processor or assembler in the regular
course of business within this state, shall be based  on  the  price  at
which  items  of the same kind of tangible personal property are offered
for sale by him, except to the extent otherwise provided in this section
or section eleven hundred ten of this part.
(b) Tangible personal property, which has been purchased by a resident
of New York state outside of this state for use outside  of  this  state
and  subsequently  becomes  subject  to the compensating use tax imposed
under this article, shall be taxed on the basis of the purchase price of
such property, provided, however:
(1) That where a taxpayer affirmatively shows that  the  property  was
used outside such state by him for more than six months prior to its use
within  this state, such property shall be taxed on the basis of current
market value of the property at the time of its first  use  within  this
state.  The  value  of such property, for compensating use tax purposes,
may not exceed its cost.
(2) That the compensating use tax on such tangible  personal  property
brought  into  this  state  (other  than for complete consumption or for
incorporation into real property located in this state) and used in  the
performance  of  a  contract  or  sub-contract  within  this  state by a
purchaser or user for a period of less than six months may be based,  at
the  option  of  the taxpayer, on the fair rental value of such property
for the period of use within this state.
(c) For the amount and timing of tax in respect to property leased, or
sold under a contract deferring payments,  see  section  eleven  hundred
thirty-two.  For  the  amount  and  timing  of tax in respect to certain
leased property, see subdivision (i) of this section.
(d) The commissioner is authorized and  empowered  to  prescribe  and,
from  time  to  time,  to  amend  schedules  of  the amount of tax to be
collected upon each gallon of motor fuel and diesel motor fuel  sold  at
retail  and upon each gallon of such fuel subject to the tax required to
be prepaid pursuant to section eleven hundred two  of  this  article  or
upon  each package of cigarettes sold at retail and upon each package of
cigarettes subject to the tax  required  to  be  prepaid  under  section
eleven  hundred  three  of  this  article,  as  the  commissioner  shall
determine  is  approximately  equal  to  the  average   rate   otherwise
applicable, considering the regional average retail sales prices of such
fuel,  the  amount  of  the  prepaid  tax  per  package of cigarettes in
accordance with subdivision (j) of this section and, in the  case  of  a
sale  at retail, the ordinary price ranges for such fuel and cigarettes,
in lieu of the regular schedule based  on  total  receipts.  Such  rates
shall  be  uniform  in  each  county  but  may vary as between counties,
depending on the general price ranges in  effect  in  each  county,  but
counties  wholly within a city shall have a uniform rate. If a political
subdivision of a county imposes a retail sales  and  use  tax,  separate
rates may be prescribed for it. Such schedules with reference to the tax
required  to  be prepaid on motor fuel and diesel motor fuel pursuant to
section eleven hundred two of this article or the  tax  required  to  be
prepaid on cigarettes under section eleven hundred three of this article
may fix the rate per gallon or per package of cigarettes in multiples of
one-tenth  of  one  cent,  depending,  in  the case of such fuel, on the
regional average retail sales prices where such fuel is, as the case may
be, imported, manufactured, sold or used. Such schedules with  reference

to such fuel or cigarettes sold at retail may fix the rate per gallon or
per  package,  as the case may be, in multiples of one-tenth of one cent
depending on the price at which such fuel or cigarettes are sold.  Where
schedules  fixing  the  rate per gallon in multiples of one-tenth of one
cent have been promulgated, the price shown on any metered pump or other
dispensing device from which such fuel is sold to a  purchaser  of  such
fuel, to be delivered directly to a vehicle propelled by any power other
than  muscular,  shall  include  the  tax  at the rate so fixed, and the
commissioner may by regulation prescribe the manner in which the  amount
of  tax  shall  be  shown  for  the information of customers by signs or
placards on the premises where such fuel is sold. When  determining  tax
required  to  be  collected  on  the retail sale of motor fuel or diesel
motor fuel or cigarettes, the receipts on which tax  is  computed  shall
not include the amount of tax required to be prepaid pursuant to section
eleven hundred two of this article with respect to such fuel or pursuant
to  section  eleven  hundred  three of this article with respect to such
cigarettes.
(e) (1) There are hereby created  and  established  within  the  state
three  regions for purposes of the payment of the tax imposed by section
eleven hundred two of this article. (i) the first region  shall  consist
of  the  localities included in the metropolitan commuter transportation
district created and established  pursuant  to  section  twelve  hundred
sixty-two  of  the  public  authorities  law,  excluding  all localities
included in the counties of Nassau and Suffolk. (ii) The  second  region
shall  consist  of the localities included in the counties of Nassau and
Suffolk. (iii) The third region shall consist of the area of  the  state
outside  the  regions  referred to in subparagraphs (i) and (ii) of this
paragraph.
(2) (i) Where the motor fuel is imported, manufactured or sold in,  or
diesel  motor  fuel  is  sold  or  used  in  the  region  referred to in
subparagraph (i) of paragraph one of this subdivision, the tax  required
to  be prepaid pursuant to section eleven hundred two of this article on
each gallon of such fuel shall be sixteen cents.
(ii) Where motor fuel is imported, manufactured or sold in, or  diesel
motor  fuel  is  sold  or used in the region referred to in subparagraph
(ii) of paragraph one of  this  subdivision,  the  tax  required  to  be
prepaid  pursuant  to section eleven hundred two of this article on each
gallon of such fuel shall be sixteen cents.
(iii) Where motor fuel is imported, manufactured or sold in, or diesel
motor fuel is sold or used in the region  referred  to  in  subparagraph
(iii)  of  paragraph  one  of  this  subdivision, the tax required to be
prepaid pursuant to section eleven hundred two of this article  on  each
gallon of such fuel shall be fifteen cents.
(3)  When  a wholesaler of motor fuel sells motor fuel in a region, as
defined in paragraph one of this subdivision, different from the  region
in which such motor fuel was purchased:
(i)  if  the  region  in  which  it  sells the motor fuel has a higher
prepaid rate as set forth in this subdivision than the region  in  which
the  wholesaler purchased the motor fuel in, the wholesaler shall pay to
the department the difference in the rates for the gallonage sold.
(ii) if the region in which it  sells  the  motor  fuel  has  a  lower
prepaid  rate  as set forth in this subdivision than the region in which
the wholesaler  purchased  the  motor  fuel,  the  wholesaler  shall  be
entitled  to  a credit or refund for the difference in the rates for the
gallonage sold.
(4) The commissioner is authorized to adjust the  rates  in  paragraph
two of this subdivision and shall prescribe a schedule of such rates for

each  region  described in paragraph one of this subdivision as provided
in this paragraph.
(i)  The  schedule  required  by  this  paragraph  shall  be  reviewed
semiannually during the months  of  April  and  October  of  each  year,
beginning  in  October,  two  thousand seventeen. The commissioner shall
determine a tentative rate of tax that would be required to  be  prepaid
pursuant to section eleven hundred two of this article on each gallon of
motor fuel or diesel motor fuel sold or used by multiplying the regional
average  retail  sales prices for such fuel for each region described in
paragraph one of this subdivision  by  a  number  that  is  seventy-five
percent  of  the  average  local  sales tax rate in each such region and
adding to the product thereof the taxes imposed by  paragraphs  one  and
two  of  subdivision  (m)  of  this section. The regional average retail
sales price shall be determined for purposes of this  subdivision  using
data regarding sales prices, which shall include, but not be limited to,
sales  prices as compiled by government or industry surveys and sources,
taking into consideration with respect to motor fuel,  the  volumes  and
prices  of  unleaded  motor  fuels, including reformulated or like motor
fuels, sold in this state and with respect to both motor fuel and diesel
motor fuel, the volume and prices of such fuels sold at full service and
self-service pumps for  such  fuels,  during  an  immediately  preceding
period  of  up to twelve months ending the last day of March in the case
of the April semiannual review and ending the last day of  September  in
the  case  of the October semiannual review; provided, however, that the
regional average retail sales prices for  both  motor  fuel  and  diesel
motor  fuel  shall  represent the retail sales prices upon which the tax
under this article and pursuant to the authority of article  twenty-nine
of  this  chapter  is  computed (including all federal and state and any
local taxes included in such price) for such period.
(ii) If upon such review, it is determined that the tentative rate  of
tax  that would be required to be prepaid for motor fuel or diesel motor
fuel  in  any  of  the  regions  described  in  paragraph  one  of  this
subdivision  would increase or decrease the rate for such region then in
effect by two or more cents per gallon, the  commissioner  shall  adjust
such  rate to be equal to the tentative rate, which shall take effect on
the first day of June  or  the  first  day  of  December,  respectively.
Provided,  however,  the commissioner shall set the rate of tax required
to be prepaid in the region described in subparagraph (ii) of  paragraph
one  of this subdivision equal to the rate set forth in subparagraph (i)
of such paragraph, unless the regional average retail sales price in the
metropolitan commuter transportation district exceeds four  dollars  per
gallon.  In  such  event,  the commissioner is authorized to establish a
separate rate in the region described  in  such  subparagraph  (ii)  and
shall compute such rate by multiplying the regional average retail sales
prices  for  motor fuel and diesel motor fuel in such region by a number
that is eighty-five percent of the average local sales tax rate in  such
region and adding to the product thereof the taxes imposed by paragraphs
one and two of subdivision (m) of this section.
(iii) The commissioner shall cause to be published on the department's
website  the  schedule  of  rates  and the regional average retail sales
prices of motor fuel and diesel motor fuel fixed  by  this  section,  no
later  than  ten  days  prior  to  the  effective  date  of  such rates.
Notwithstanding  any  other  provision  of  law,  the  calculation   and
publication  of  the  rates  so  fixed by the provisions of this section
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.
(5)  Where  a new rate of tax required to be prepaid for motor fuel or
diesel motor fuel is determined by the commissioner,  (i)  if  such  new
rate  is less than the rate then in effect, on the date the rate becomes
effective (A) a registered distributor shall be entitled to a credit  in
an  amount equal to the difference between the amount of the prepaid tax
paid or incurred by him or her with respect to motor fuel  which  he  or
she  imported  and which he or she has in inventory at the time such new
rate becomes effective and the amount of tax which would be due on  such
inventory  if  the prepaid tax were calculated based on such new average
price for the region in which such motor fuel was imported and (B)  such
inventory  shall then be deemed to have been taxed based on the rate and
all certifications of tax payment given by the distributor with  respect
to  motor  fuel  in  such inventory shall indicate a pass through of the
prepaid tax based on such new price, (ii) if such new  rate  is  greater
than  the existing rate, on the date such new rate becomes effective (A)
such distributor shall become liable to pay an additional tax  equal  to
the difference between the amount of tax which would be due with respect
to  motor  fuel  which  he  or  she  imported and which he or she has in
inventory at the time such new rate becomes effective if the prepaid tax
on such motor fuel were calculated based on such new average  price  for
the  region  in  which  such  motor  fuel was imported and the amount of
prepaid tax paid or actually incurred by such distributor  with  respect
to  such  motor fuel and (B) such inventory shall then be deemed to have
been taxed based on the new rate and all certifications of  tax  payment
given  by  the  distributor with respect to motor fuel in such inventory
shall indicate a pass through of the prepaid tax based on such new rate.
Such credit shall be allowed with respect to or such tax shall  be  paid
with  the  return  covering the month immediately preceding the month in
which such new rate becomes  effective.  Any  carryover  credit  may  be
applied  to  subsequent periods. The amount to be reported as additional
tax shall be paid and disposed of in the same manner as the tax required
to be prepaid by section  eleven  hundred  two  of  this  article.  Such
additional  tax shall be determined, assessed, collected and enforced in
the same manner as the tax required to  be  prepaid  by  section  eleven
hundred two of this article.
(f)  The  retail  sales  tax  imposed under subdivision (a) of section
eleven hundred five and the compensating use tax imposed  under  section
eleven hundred ten, when computed in respect to a new mobile home, shall
be  computed  on  seventy percent of the receipts or consideration given
therefor by the purchaser or user.
(g) The sale of race horses made through  claiming  races  within  the
state,  shall  be  subject to sales tax but only on such portions of the
total purchase price that exceed  the  highest  of  any  prior  purchase
prices  paid for the same horse during the same calendar year within the
state. Where no previous purchases have  been  made  within  a  calendar
year,  the  full  purchase price shall be taxable. Officials of all race
tracks in the state shall maintain and make available,  upon  reasonable
request, accurate and detailed lists of such sales.
(h)  Receipts  subject  to tax under subdivision (a) of section eleven
hundred five on retail sales of  cigarettes  and  tobacco  products  and
consideration given or contracted to be given for cigarettes and tobacco
products  the  uses  of  which  are  subject to tax under section eleven
hundred ten shall be deemed to include any tax imposed on cigarettes and
tobacco products by article twenty of this chapter and any  tax  imposed
on  cigarettes by chapter thirteen of title eleven of the administrative
code of the city of New York.
(i) (A) Notwithstanding any contrary provisions  of  this  article  or
other  law,  with respect to any lease for a term of one year or more of

(1) a motor vehicle, as defined in section one  hundred  twenty-five  of
the vehicle and traffic law, with a gross vehicle weight of ten thousand
pounds  or  less,  or  (2)  a  vessel,  as defined in section twenty-two
hundred  fifty  of such law (including any inboard or outboard motor and
any trailer, as defined in section one hundred fifty-six  of  such  law,
leased  in conjunction with such a vessel), or an option to renew such a
lease  or  a  similar  contractual  provision,  all  receipts   due   or
consideration  given  or  contracted to be given for such property under
and for the entire period of such lease,  option  to  renew  or  similar
provision,  or combination of them, shall be deemed to have been paid or
given and shall be subject to  tax,  and  any  such  tax  due  shall  be
collected,  as  of the date of first payment under such lease, option to
renew or similar provision, or combination of them, or as of the date of
registration of such property with the commissioner of  motor  vehicles,
whichever  is  earlier.  Notwithstanding  any inconsistent provisions of
subdivision (b) of this section or of section eleven  hundred  seventeen
of this article or of other law, for purposes of such a lease, option to
renew  or  similar provision originally entered into outside this state,
by a lessee (1) who was a  resident  of  this  state,  and  leased  such
property  for  use  outside  the  state and who subsequently brings such
property into this state for use here or (2) who was a  nonresident  and
subsequently  becomes a resident and brings the property into this state
for use here, any remaining receipts due or consideration  to  be  given
after  such lessee brings such property into this state shall be subject
to tax as if the lessee had entered into or exercised such lease, option
to renew or similar provision, or combination  thereof,  for  the  first
time  in  this  state  and  the  relevant  provisions of sections eleven
hundred ten concerning imposition and computation of tax, eleven hundred
eighteen concerning exemption from use  tax  for  tax  paid  to  another
jurisdiction,   eleven  hundred  thirty-two  concerning  presumption  of
taxability  and  conditions  for   registration   and   eleven   hundred
thirty-nine  concerning refunds, of this article, shall be applicable to
any sales or compensating use tax paid by the lessee before  the  lessee
brought the property into this state, except to the extent that any such
provision  is  inconsistent  with  a  provision of this subdivision. For
purposes of this subdivision, (1) a lease for a term of one year or more
shall include any lease for a shorter term which includes an  option  to
renew  or other like provision (or more than one of such option or other
provision) where the cumulative period that the lease, with  or  without
such  option or provision, may be in effect upon exercise of such option
or provision is one year or more and (2) receipts due and  consideration
given  or contracted to be given under any such lease or other provision
for excess mileage charges shall be subject to tax as and when  paid  or
due.
(B)   (1)   Notwithstanding   any   inconsistent  provisions  of  this
subdivision, with respect to a lease of a  motor  vehicle  described  in
paragraph  (A)  of this subdivision for a term of one year or more which
includes an indeterminate number of options to renew  or  other  similar
contractual  provisions  or  which  includes  thirty-six or more monthly
options to renew beyond the initial term,  and  under  which  lease  the
lessee  of  such motor vehicle has certified in the writing described in
clause (i) of subparagraph (C) of paragraph two  of  subsection  (h)  of
section  7701  of  the  internal  revenue code of 1986, under penalty of
perjury, that the lessee intends that more than fifty percent of the use
of such vehicle is to be in a trade  or  business  of  the  lessee,  all
receipts due or consideration given or contracted to be given under such
lease for the first thirty-two months, or the period of the initial term
if greater, of such lease shall be deemed to have been paid or given and

shall  be  subject  to  tax  in  accordance  with the provisions of this
subdivision.
For each such option to renew, or similar provision, or combination of
them, exercised after the first thirty-two months, or the period of such
initial  term,  if longer, of any such lease, tax due under this article
shall be collected  and  paid  or  paid  over  without  regard  to  this
subdivision.
(2)  If at the termination of a lease described in subparagraph one of
this  paragraph  the  lessor  refunds  a  portion  of  the  receipt   or
consideration  to the lessee as required by a terminal rental adjustment
clause of such lease, either: (i) the  lessee  may  claim  a  refund  or
credit   for  the  sales  tax  it  paid  on  such  refunded  receipt  or
consideration; or (ii) the lessor may claim a refund or  credit  of  the
sales  tax  paid by the lessee on such refunded receipt or consideration
if it has demonstrated to the satisfaction of the commissioner  that  it
first refunded such tax to the lessee. Notwithstanding the provisions of
subdivision  (c)  of section eleven hundred thirty-nine of this article,
such claim for refund or credit shall be considered timely if it is made
within three years  after  the  tax  was  paid  by  the  lessor  to  the
commissioner  or  one  year  after  such  receipt  or  consideration was
refunded to the lessee, whichever is later; provided, however,  that  no
interest  shall  be  paid  on  a  refund or credit made pursuant to this
subparagraph.
(C) Any receipts due or consideration given or contracted to be  given
under  an  option  to renew a lease of a motor vehicle described in this
subdivision or similar contractual provision, or  combination  of  them,
exercised as part of any such lease between the same lessor and the same
lessee  with  respect  to the same motor vehicle or vehicles, where such
lease or any  option  to  renew  such  a  lease  or  any  other  similar
contractual  provision  was  subject  to  tax  in  accordance  with  the
provisions of this subdivision, shall not be subject to the tax  imposed
under the provisions of article twenty-eight-A of this chapter.
(j)  (1)  The  tax  required  to be prepaid pursuant to section eleven
hundred three of this article shall be computed by multiplying the  base
retail  price  by  a  tax  rate of eight percent and rounding the result
thereof to the nearest whole cent per package.
(2) For purposes of this subdivision, the base retail price shall mean
for the period September first, nineteen  hundred  ninety-five,  through
August  thirty-first,  nineteen  hundred ninety-six, one dollar for each
package of cigarettes containing ten cigarettes or fraction thereof, and
two dollars for each package of cigarettes containing twenty  cigarettes
or  fraction  thereof  in  excess of ten and, if a package contains more
than twenty cigarettes, the base retail  price  shall  be  increased  by
fifty  cents  for  each five cigarettes or fraction thereof in excess of
twenty. Effective for the twelve-month period commencing  on  the  first
day  of  September  of  each  year,  the  base retail price for any such
package shall be adjusted as follows: As soon as practicable after  June
first of each year, the base retail price in effect for the twelve-month
period  commencing on the immediately preceding September first shall be
multiplied by a fraction, the numerator of which is  the  total  of  the
sums  of  the  manufacturers'  list price for a carton of standard brand
cigarettes containing ten packages of twenty cigarettes and  the  amount
of  cigarette  tax  imposed  by  subdivision one of section four hundred
seventy-one of this chapter on such a carton of cigarettes, in effect on
the first day of each month, for each of the twelve  consecutive  months
ending  with  such  month  of  June, and the denominator of which is the
total of the sums of the manufacturers' list price for such a carton  of
cigarettes and the amount of cigarette tax imposed by subdivision one of

section  four  hundred  seventy-one  of this chapter on such a carton of
cigarettes, in effect on the first day of each month, for  each  of  the
twelve  consecutive  months  ending  with  the  month  of  June  of  the
immediately  preceding  year.  Provided,  however,  for  purposes of the
adjustment to any  such  base  retail  price  required  for  the  period
commencing  September  first, two thousand two, the denominator shall be
such total with respect to the twelve consecutive months ending with the
month of June, nineteen hundred ninety-seven.  The  manufacturers'  list
price  for a carton of standard brand cigarettes containing ten packages
of twenty cigarettes in effect on the first day  of  a  month  shall  be
determined  by  calculating  a  weighted  average  of  each of the major
manufacturer's list prices for such a carton of cigarettes in effect  on
the  frist  day  of  such month, as such list prices are reported to the
department by such manufacturers, in the department's  determination  of
the cost of cigarettes under article twenty-A of this chapter, and using
the  most recently published annual national market shares of such major
manufacturers. The commissioner shall  cause  to  be  published  in  the
section  for miscellaneous notices in the state register, and give other
appropriate  general  notice  of,  the  base  retail  price   adjustment
calculation  and  the  resulting base retail price fixed by this section
for the  period  commencing  September  first  of  each  year  beginning
September   first,  nineteen  hundred  ninety-six,  no  later  than  the
immediately  preceding  first  day  of  August.  The   calculation   and
publication  of  the  base  retail  price so fixed by provisions of this
section shall not be included within the definition of "rule" as defined
in paragraph (a) of subdivision two of section one hundred  two  of  the
state  administrative  procedure  act. The base retail prices determined
pursuant to this paragraph shall be rounded to the nearest one-tenth  of
one cent for each package containing ten cigarettes or fraction thereof,
for  each package containing twenty cigarettes and, if packages are sold
in excess of twenty cigarettes and stamps have been issued therefor, for
each such package.
(k) Receipts subject to tax under subdivision (a)  of  section  eleven
hundred five of this article on retail sales of motor fuel, diesel motor
fuel   and  residual  petroleum  product,  and  consideration  given  or
contracted to be given for motor fuel, diesel motor  fuel  and  residual
petroleum  product,  the  uses of which are subject to tax under section
eleven hundred ten of this article, shall be deemed to include  any  tax
imposed  on or with respect to motor fuel, diesel motor fuel or residual
petroleum product under article thirteen-A of this chapter.
(l) (1) Receipts from the sale of  mobile  telecommunications  service
provided  by  a  home service provider shall include "charges for mobile
telecommunications services." Such term shall mean any charge by a  home
service  provider  to  its  mobile  telecommunications  customer for (A)
commercial mobile radio service, and shall include property and services
that are ancillary to the provision of commercial mobile  radio  service
(such   as   dial  tone,  voice  service,  directory  information,  call
forwarding, caller-identification and call-waiting), and (B) any service
and property provided therewith.
(2) With respect to services or property described in subparagraph (B)
of paragraph one of  this  subdivision,  internet  access  service,  any
mobile  telecommunications  service  which the mobile telecommunications
customer originates in a foreign country to the extent included  in  the
fixed  periodic  charge,  any  interstate  or international telephony or
telegraphy or telephone or telegraph service of whatever nature which is
not a voice service, and any property or service which is not  telephony
or  telegraphy  or  telephone or telegraph service of whatever nature, a
home service provider shall collect and  pay  over  tax,  and  a  mobile

telecommunications  customer  shall  pay  such tax, on receipts from any
charge that is aggregated with and  not  separately  stated  from  other
charges  for  mobile  telecommunications  service. Provided, however, if
such  home service provider uses an objective, reasonable and verifiable
standard for identifying each of the components of the charge for mobile
telecommunications  service,  then  such  home  service   provider   may
separately  account  for  and quantify the amount of each such component
charge. If a home service provider chooses to so separately account  for
and quantify and separately sells any such property or service, then the
charge  for  such  property or service shall be based upon the price for
such property or service as separately sold. If a home service  provider
chooses  to  so  separately  account  for  and  quantify  and  does  not
separately sell such property or  service,  then  the  charge  for  such
property  or  service shall be based upon the prevailing retail price of
comparable property or service sold separately  by  other  home  service
providers. In any case, the charge for such property or service shall be
reasonable   and  proportionate  to  the  total  charge  to  the  mobile
telecommunications customer. Such charges for such services or property,
as the case may be, will not constitute receipts from charges for mobile
telecommunications services subject to  tax  under  subdivision  (b)  of
section  eleven  hundred  five  of this article. Nothing herein shall be
construed to exempt from tax or subject  to  tax  any  such  service  or
property otherwise subject to tax or exempt from tax under this article.
(3) (A) Any charge for a service or property billed by or for a mobile
telecommunications  customer's  home service provider shall be deemed to
be provided by such mobile telecommunications  customer's  home  service
provider.
(B) Charges for mobile telecommunications service that are provided or
deemed  to  be  provided  by a mobile telecommunications customer's home
service provider shall be sourced to the taxing jurisdiction  where  the
mobile  telecommunications  customer's  place of primary use is located,
regardless of where the mobile  telecommunications  service  originates,
terminates or passes through.
(m) Notwithstanding any provision of law to the contrary:
(1) The sales tax imposed by subdivision (a) of section eleven hundred
five  of  this  article  and the compensating use tax imposed by section
eleven hundred ten of this article, in regard to retail sales  of  motor
fuel and diesel motor fuel, shall be eight cents per gallon.
(2) The sales and compensating use taxes imposed by subdivision (a) of
section  eleven  hundred nine of this article, in regard to retail sales
of motor fuel and diesel motor fuel, shall be three-quarters of one cent
per gallon.
(3) Paragraph one of this subdivision shall not apply to the sales and
compensating use taxes imposed by  subdivision  (a)  of  section  eleven
hundred  seven  of  this article in regard to retail sales of motor fuel
and diesel motor fuel. However, the legislative body of a city in  which
the taxes imposed by such section eleven hundred seven are in effect, by
local  law, ordinance, or resolution in exactly the form prepared by the
commissioner, may elect that such taxes, in regard to  retail  sales  of
motor  fuel  and  diesel motor fuel, shall be computed, as determined by
the commissioner, at a rate of cents per gallon, rounded to the  nearest
cent,  equal to two or three dollars, as determined by the municipality,
multiplied by the percentage rate of such taxes within the municipality.
(4) Paragraph one of this subdivision shall not apply to the sales and
compensating use taxes imposed by a local law, ordinance  or  resolution
of  a municipality pursuant to the authority of subpart B of part one of
article twenty-nine of this chapter, in regard to retail sales of  motor
fuel and diesel motor fuel. The legislative body of such a municipality,

by  local  law,  ordinance or resolution in exactly the form prepared by
the commissioner, may elect that its sales and compensating  use  taxes,
in  regard to the retail sale of motor fuel and diesel motor fuel, shall
be  computed,  as determined by the commissioner, at a rate of cents per
gallon, rounded to the  nearest  cent,  equal  to  two,  three  or  four
dollars, as determined by the municipality, multiplied by the percentage
rate of such taxes within the municipality.
(5)(i)  Prior  to the start of any sales tax quarter, the commissioner
shall apply the local percentage sales tax rate of each county  or  city
that  has elected a cents per gallon rate pursuant to paragraph three or
four of this subdivision to the average price of motor fuel  and  diesel
motor  fuel,  not including sales tax and the motor fuel excise tax, for
three consecutive months beginning four months prior to the start of any
sales tax quarter. If the result of this computation is  less  than  the
elected cents per gallon rate for a county or city, the cents per gallon
rate  for  such  county  or  city  shall be adjusted to be equal to such
computation, rounded to the  nearest  one  cent.  Such  rates  shall  be
published by the commissioner and effective in the next succeeding sales
tax quarter.
(ii)  Prior  to  the  start of any sales tax quarter, the commissioner
shall also adjust in a like manner the cents per gallon rates prescribed
by paragraphs one and two of this subdivision based on percentage  sales
tax  rates  of four percent and three-eighths of a percent respectively.
Provided, however,  adjustments  made  to  the  cents  per  gallon  rate
prescribed  by paragraph two of this subdivision shall be rounded to the
nearest one-tenth of one cent.
(6) A local law,  ordinance  or  resolution  making  or  revoking  the
election  made  pursuant  to paragraph three or four of this subdivision
must go into effect in accordance with the  provisions  of  subdivisions
(d) and (e) of section twelve hundred ten of this chapter.
(7)  Notwithstanding  any  foregoing  provision of this subdivision or
other law to the contrary, this subdivision, subdivision (h) of  section
eleven hundred nine of this part and subdivision (n) of section eighteen
hundred seventeen of this chapter, section three hundred ninety-two-i of
the  general  business  law  and  other provisions of law which refer or
relate to this subdivision shall apply only to (A) motor fuel or  diesel
motor  fuel  sold  for  use  directly and exclusively in the engine of a
motor vehicle and (B) motor  fuel  or  diesel  motor  fuel,  other  than
water-white kerosene sold exclusively for heating purposes in containers
of  no  more  than  twenty  gallons,  sold  by a retail gas station. For
purposes of this subdivision and such other provisions of  law,  "retail
gas  station"  shall  mean  a  filling station where such fuel is stored
primarily for sale by delivery directly  into  the  ordinary  fuel  tank
connected  with  the  engine  of  a  motor vehicle to be consumed in the
operation of such motor vehicle or where such fuel is  stored  primarily
for sale by delivery directly into the ordinary fuel tank connected with
the  engine  of a vessel to be consumed in the operation of such vessel.
The commissioner is hereby authorized to require the use of certificates
or other documents,  and  procedures  related  thereto,  to  effect  the
purposes of this subdivision; and any such certificate or other document
so required by the commissioner for a purchaser to tender to a vendor to
purchase  such fuel subject to tax on the reduced base established by or
pursuant to this  subdivision  is  hereby  deemed  to  be  an  exemption
certificate  as  such  term is used in subdivision (c) of section eleven
hundred thirty-two of this article and as  if  the  provisions  of  such
subdivision  (c)  referred  to  such  a certificate or document required
pursuant to this subdivision.
* (n) The sales and compensating use taxes imposed by this article and
pursuant to the authority of article twenty-nine of this chapter on  B20
shall  be  imposed at eighty percent of the rate of the cents per gallon
taxes described in subdivision (m) of this section. However, if a county
or  city  does not make the cents per gallon election authorized by such
subdivision (m), the taxes of such county or city  imposed  pursuant  to
the authority of such article twenty-nine or the taxes imposed in a city
of  one  million or more by section eleven hundred seven of this article
shall be imposed on eighty percent of the receipts from the retail  sale
of  or the consideration given or contracted to be given for, or for the
use of, such B20.
* NB Repealed September 1, 2026
(o) (1) If a transportation service subject to tax under paragraph ten
of subdivision (c) of section  eleven  hundred  five  of  this  part  is
provided  by  vehicle,  and the owner or lessor of the vehicle leases or
rents the vehicle to an unrelated person who provides the transportation
service, such as a limousine driver who  drives  a  limousine  owned  by
another  person,  then  (i) the owner or lessor is deemed to provide the
transportation service during the day or other period that the unrelated
person uses the vehicle to provide the service, (ii) the owner or lessor
is deemed to be the vendor of the  service  provided  by  the  unrelated
person,  (iii)  the  tax  imposed  by such paragraph ten is deemed to be
imposed on the unrelated person, (iv) the owner or  lessor,  as  vendor,
must  collect  the  tax  from  the  unrelated person, based on the local
jurisdiction where the driver takes delivery of the vehicle and pay over
such tax required to be collected with its returns required to be  filed
under  this  article,  and (v) the receipts subject to the tax equal two
hundred percent of the amount that  the  owner  or  lessor  charges  the
unrelated  person  for  the  use  of the vehicle during the day or other
period, including any charge related to insurance, maintenance, repairs,
fuel, the use, rental or economic  value  of  any  vehicle  or  business
license,  and  any  other  charge  made  by  the  owner or lessor to the
unrelated person for the day or other period, regardless of whether  the
unrelated  person  transported, carried or conveyed any person or earned
any fares with that vehicle during that day or other period.
(2) Notwithstanding any law to the contrary:
(i)  Any  municipality  or  public  corporation  that  establishes  or
regulates  black  car,  limousine  or  other  vehicle service fares must
adjust those fares to include therein the tax imposed by  paragraph  ten
of  subdivision  (c) of section eleven hundred five of this part and the
taxes imposed by other  sections  of  this  part  and  pursuant  to  the
authority  of  article twenty-nine of this chapter on the services taxed
by such paragraph ten and must require that any meters or other  devices
in  the  vehicles or otherwise that measure fares be adjusted to include
these taxes, as the same are from time to time imposed and as the  rates
of those taxes may change.
(ii)  Any person that sells the services described in paragraph one of
this subdivision must adjust any meters or other devices in the vehicles
or otherwise that measure fares so that they timely reflect  any  change
in  the  rates  of  the  taxes  described  in  subparagraph  (i) of this
paragraph.  Neither  the  failure  of  a  municipal  or   other   public
corporation  to adjust fares nor the failure of any person to adjust the
meters or devices will relieve any person from the obligation to collect
and pay or pay over such taxes timely, at the correct combined rate.
(3) For purposes of  this  subdivision,  "unrelated  person"  means  a
person  other  than  a related person as defined for purposes of section
fourteen of this chapter.
(p) Notwithstanding any contrary provision of law: (1) The  sales  tax
imposed  by  subdivision (a) of section eleven hundred five of this part
on receipts from the retail sale of a new modular home module  shall  be
computed  on  the sum of (i) sixty percent of the vendor's receipts from
the  sale  of  the  module,  excluding  any charges by the vendor to the
purchaser for shipping or delivery, as described in paragraph  three  of
subdivision  (b)  of section eleven hundred one of this article and (ii)
one hundred percent of any charges by the vendor to  the  purchaser  for
shipping or delivery of the modules as described in such paragraph three
of subdivision (b) of section eleven hundred one.
(2)  The compensating use tax imposed by clause (A) of subdivision (a)
of section eleven hundred ten of this part on the use of a  new  modular
home  module  by its purchaser shall be computed on the sum of (i) sixty
percent of the amount described  in  subdivision  (b)  of  such  section
eleven  hundred  ten,  excluding any charges for shipping or delivery as
described in paragraph  three  of  subdivision  (b)  of  section  eleven
hundred one of this article, and (ii) one hundred percent of any charges
for  shipping  or  delivery  as  described  in  such  paragraph three of
subdivision (b) of section eleven hundred one.
(3) The compensating use tax imposed  by  subclause  (i)  or  (ii)  of
clause (B) of subdivision (a) of section eleven hundred ten of this part
on the use of modular home modules by their manufacturer to be installed
at  a  building  site  to  construct  a  modular home that constitutes a
capital improvement shall be computed on the sum of (i) sixty percent of
the consideration for which the manufacturer conveys  those  modules  to
the   modular   home   buyer   on  an  installed  basis,  excluding  any
consideration for shipping or delivery as described in  paragraph  three
of  subdivision  (b)  of section eleven hundred one of this article, and
excluding the consideration for the installation of those modules at the
building  site  as  a  modular  home  if  such  installation  charge  is
reasonable  and  stated separately from every other charge, and (ii) one
hundred percent of any charges for shipping or delivery as described  in
such paragraph three of subdivision (b) of section eleven hundred one.
(q)  (1)  The  exclusions  from  the  definition  of  retail  sale  in
subparagraph (iv) of paragraph four of subdivision (b) of section eleven
hundred one of this article shall not apply to transfers, distributions,
or contributions of a vessel, except where, in the case of the exclusion
in subclause (I) of clause  (A)  of  such  subparagraph  (iv),  the  two
corporations  to  be  merged  or consolidated are not affiliated persons
with  respect  to  each  other.  For  purposes  of   this   subdivision,
corporations are affiliated persons with respect to each other where (i)
more  than five percent of their combined shares are owned by members of
the same family, as defined by  paragraph  four  of  subsection  (c)  of
section two hundred sixty-seven of the internal revenue code of nineteen
hundred  eighty-six;  (ii)  one  of  the  corporations  has an ownership
interest of more than five percent, whether direct or indirect,  in  the
other;  or  (iii)  another  person  or a group of other persons that are
affiliated persons with respect to each other hold an ownership interest
of more than five percent, whether direct or indirect, in  each  of  the
corporations.
(2)  Notwithstanding any contrary provision of law, in relation to any
transfer, distribution, or contribution of a vessel that qualifies as  a
retail  sale as a result of paragraph one of this subdivision, the sales
tax imposed by subdivision (a) of section eleven hundred  five  of  this
part  shall be computed based on the price at which the seller purchased
the tangible personal  property,  provided  that  where  the  seller  or
purchaser affirmatively shows that the seller owned the property for six
months  prior  to  making  the  transfer,  distribution  or contribution

covered by paragraph one of this subdivision, such vessel shall be taxed
on the basis of the current market value of the vessel at  the  time  of
that  transfer,  distribution,  or contribution. For the purposes of the
prior  sentence, "current market value" shall not exceed the cost of the
vessel. See subdivision (b) of this section for a similar  rule  on  the
computation of any compensating use tax due under section eleven hundred
ten of this part on such transfers, distributions, or contributions.
(3)  A  purchaser  of  a  vessel  covered  by  paragraph  one  of this
subdivision will be entitled to a refund or credit against the sales  or
compensating  use  tax  due  as a result of a transfer, distribution, or
contribution of such vessel in the amount of any sales or use  tax  paid
to  this state or any other state on the seller's purchase or use of the
vessel so transferred, distributed or contributed, but not to exceed the
tax due on the transfer, distribution, or contribution of the vessel  or
on  the  purchaser's  use  in  the  state  of the vessel so transferred,
distributed or contributed. An application for a refund or credit  under
this  subdivision  must  be  filed  and  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  the
application  for  credit  is filed. However, the taking of the credit on
the return shall be deemed to be part of  the  application  for  credit.
Provided  that  the  commissioner  may,  in  his  or  her discretion and
notwithstanding any other law, waive the application requirement for any
or all classes of persons where the amount of the credit  or  refund  is
equal to the amount of the tax due from the purchaser. The provisions of
subdivisions  (a), (b), and (c) of section eleven hundred thirty-nine of
this article shall apply to applications for refund or credit under this
subdivision. No interest shall be allowed or paid on any refund made  or
credit  allowed  under  this  subdivision.  If  a refund is granted or a
credit allowed under this paragraph, the seller or purchaser  shall  not
be  eligible  for  a  refund  or credit pursuant to subdivision seven of
section eleven hundred eighteen of this article with regard to the  same
purchase or use.
(r)  (1)  In  regard  to the collection of sales tax on occupancies by
room remarketers, when occupancy is provided for a single  consideration
with  property, services, amusement charges, or any other items, whether
or  not  such  other  items  are  taxable,  the  rent  portion  of   the
consideration  for such transaction shall be computed as follows: either
the total consideration received by the room remarketer multiplied by  a
fraction,  the numerator of which shall be the consideration payable for
the occupancy by the room remarketer and the denominator of which  shall
be  such  consideration payable for the occupancy plus the consideration
payable by the remarketer for the other items  being  sold,  or  by  any
other  method  as  may  be  authorized  by the commissioner. If the room
remarketer fails to separately state the tax on the rent so computed  on
a sales slip, invoice, receipt, or other statement given to the occupant
in  the  manner prescribed by paragraph two of this subdivision or fails
to maintain records of the prices of all  components  of  a  transaction
covered  by this paragraph, the entire consideration shall be treated as
rent subject to tax under paragraph one of subdivision  (e)  of  section
eleven  hundred  five of this part. Nothing herein shall be construed to
subject to tax or exempt from tax any service or property  or  amusement
charge  or other items otherwise subject to tax or exempt from tax under
this article or pursuant to the authority of article twenty-nine of this
chapter. A room remarketer's records of the  consideration  payable  for
all  components  of  a transaction covered by this paragraph are records

required to be maintained for purposes of  subdivision  (a)  of  section
eleven hundred thirty-five of this article.
(2)  In  regard  to the collection of sales tax on occupancies by room
remarketers, including a transaction described in paragraph one of  this
subdivision, the requirements of the second sentence of paragraph one of
subdivision  (a)  of  section  eleven hundred thirty-two of this article
shall be deemed satisfied if the remarketer gives the customer  a  sales
slip,  invoice,  receipt,  or  other  statement of the price ("invoice")
prior to the customer's completion of his or her occupancy, on which the
amount of tax due under this article and pursuant to  the  authority  of
article  twenty-nine of this chapter is stated. The room remarketer must
keep either a copy of the invoice as  required  by  subdivision  (a)  of
section  eleven  hundred  thirty-five  of  this  article,  or electronic
records that accurately reflect the information that is on  the  invoice
provided to the customer.
(3)  In regard to the reporting and the payment to the commissioner by
room remarketers of sales tax due on  occupancies,  subdivision  (a)  of
section  eleven  hundred  thirty-seven  of this article shall be read to
require a room remarketer to report such sales  tax  due,  including  in
regard  to a transaction described in paragraph one of this subdivision,
on the return due for the filing period in which the occupancy ends and,
at the time of filing such return, to pay to the commissioner the  total
amount described by such subdivision (a).