N.Y. Tax Law 1109 – Sales and compensating use taxes for the metropolitan commuter transportation district
§ 1109. Sales and compensating use taxes for the metropolitan commuter transportation district. (a) General. In addition to the taxes imposed by sections eleven hundred five and eleven hundred ten of this article, there is hereby imposed within the territorial limits of the metropolitan commuter transportation district created and established pursuant to § 1262 of the public authorities law, and there shall be paid, additional taxes, at the rate of three-eighths of one percent, which shall be identical to the taxes imposed by sections eleven hundred five and eleven hundred ten of this article. Such sections and the other sections of this article, including the definition and exemption provisions, shall apply for purposes of the taxes imposed by this section in the same manner and with the same force and effect as if the language of those sections had been incorporated in full into this section and had expressly referred to the taxes imposed by this section. Notwithstanding the foregoing, the tax imposed by this section shall not apply to admissions to race tracks or simulcast facilities.
Terms Used In N.Y. Tax Law 1109
- Article: means a prose composition, including commentaries, reviews, editorials, op-eds, letters to the editor, and reader comments on articles. See N.Y. Tax Law 1101
- Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
- Personal property: All property that is not real property.
- 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. See N.Y. Tax Law 1101
(b) Transitional provisions. (1) With respect to the one-fourth percent rate imposed effective September first, nineteen hundred eighty-one, the transitional provisions contained in subdivisions (a), (b), (c) and (d) of section eleven hundred six of this article shall apply to the taxes imposed by this section, except that all references in such subdivisions (a), (b), (c) and (d) to August first, nineteen hundred sixty-five shall be read as referring to September first, nineteen hundred eighty-one, all references in such subdivision (a) to April first, nineteen hundred sixty-five shall be read as referring to May first, nineteen hundred eighty-one, and the reference in such subdivision (b) to July thirty-first, nineteen hundred sixty-five shall be read as referring to August thirty-first, nineteen hundred eighty-one.
(2) With respect to the one-eighth percent rate imposed effective June first, two thousand five, the transitional provisions contained in subdivisions (a), (b), (c) and (d) of section eleven hundred six of this article shall apply to the taxes imposed by this section, except that all references in such subdivisions (a), (b), (c) and (d) to August first, nineteen hundred sixty-five, shall be read as referring to June first, two thousand five, all references in such subdivision (a) to April first, nineteen hundred sixty-five, shall be read as referring to February first, two thousand five, and the reference in such subdivision (b) to July thirty-first, nineteen hundred sixty-five, shall be read as referring to May thirty-first, two thousand five.
(c) Deliveries outside the district; deliveries within the district of property sold or serviced elsewhere. Where a sale of tangible personal property or services, including an agreement therefor, is made in the district in which the taxes imposed by this section apply, but the property sold, the property upon which the services were performed or such service is or will be delivered to the purchaser elsewhere, such sale will not be subject to taxes imposed by this section. However, if delivery occurs or will occur in the district where the tax imposed by this section applies, a vendor will be required to collect from the purchaser the sales or compensating use taxes imposed by this section. For the purposes of this section, delivery shall be deemed to include transfer of possession to the purchaser and the receiving of the property or of the service by the purchaser. The provisions of section twelve hundred fourteen of this chapter shall be applicable to this section, but any reference in that section to a local sales or use tax imposed by a city, county or school district shall mean the additional taxes imposed by this section.
(d) Deposit and disposition of revenue. (1) The taxes, interest and penalties imposed pursuant to this section and received by the tax commission, after deducting the amount which the commissioner of taxation and finance shall determine to be necessary for reasonable costs of the tax commission in administering, collecting and distributing such taxes, shall be deposited daily with such responsible banks, banking houses or trust companies, as may be designated by the comptroller, to the credit of the comptroller. Such an account may be established in one or more of such depositories. Such deposits shall be kept separate and apart from all other money in the possession of the comptroller. The comptroller shall require adequate security from all such depositories. Of the total revenue collected or received under this section, the comptroller shall retain in his hands such amount as the commissioner of taxation and finance may determine to be necessary for refunds under this section.
(2) On or before the twelfth day of each month, after reserving such amount for such refunds and such costs, the commissioner of taxation and finance shall certify to the comptroller the amount of all revenues so received during the prior month as a result of the taxes, interest and penalties so imposed and in addition on or before the last day of June the commissioner shall certify the amount of such revenues received during and including the first twenty-five days of June. The amount of revenues so certified shall be deposited by the comptroller in the mass transportation operating assistance fund established by § 88-a of the state finance law to the credit of the metropolitan mass transportation operating assistance account therein.
(e) The provision for a refund or credit contained in clause six of subdivision (a) of section eleven hundred nineteen shall not apply.
(f) The exemption contained in paragraph thirty of subdivision (a) of section eleven hundred fifteen of this article shall not apply.
(g) Notwithstanding any other provision of state or local law, ordinance or resolution to the contrary: (1) In the event that a county, city or school district located in the metropolitan commuter transportation district imposes taxes pursuant to the authority of subpart B of part I of article twenty-nine of this chapter and elects to provide the clothing and footwear exemption authorized in paragraph one of subdivision (a) of section twelve hundred ten of this chapter, or the taxes provided for in section eleven hundred eight of this article are in effect in a city located in such district, the exemption provided by paragraph thirty of subdivision (a) of section eleven hundred fifteen of this article shall be applicable in such portion of the metropolitan commuter transportation district in which such county, city or school district which elects to provide the clothing and footwear exemption authorized in paragraph one of subdivision (a) of section twelve hundred ten of this chapter is located, or where the taxes provided for in section eleven hundred eight of this part are in effect in a city located in such district. The commissioner shall determine and certify to the comptroller the amount of revenue forgone at the rate of three-eighths of one percent under this section in such county, city or school district on account of sales of clothing and footwear in such county, city or school district.
(2) Commencing with the sales tax quarterly period which commences on March first, two thousand, the commissioner shall make such determinations and certifications on the twelfth day of the month following the month in which sales tax quarterly returns are due under section eleven hundred thirty-six of this article with respect to such quarterly period for as long as such clothing and footwear exemptions from such taxes imposed pursuant to the authority of article twenty-nine of this chapter or by section eleven hundred eight of this part are in effect. Neither the commissioner nor the comptroller shall be held liable for any inaccuracy in such determinations and certifications. Such determinations and certifications may be based on such information as may be available to the commissioner at the time such determinations and certifications must be made under this subdivision and may be estimated on the basis of percentages or other indices calculated from distributions from prior periods. The commissioner shall be authorized to require such information as the commissioner deems necessary to comply with the requirements of this subdivision from persons required to file returns under such section eleven hundred thirty-six of this article.
(3) By the fifteenth day of the month in which the commissioner has made the certifications to the comptroller described in paragraph two of this subdivision, the comptroller shall bill any county, city or school district in such metropolitan commuter transportation district which provides such clothing and footwear exemption, and any city in such district in which the taxes imposed by section eleven hundred eight of this part are in effect, an amount equal to one-half of the amount certified to the comptroller by the commissioner in respect of such county, city or school district; and such county, city or school district shall pay the amount of such bill to the comptroller by the twenty-fifth day of such month. The comptroller shall deposit any such amounts received in the mass transportation operating assistance fund established by § 88-a of the state finance law to the credit of the metropolitan mass transportation operating assistance account therein.
(4) In the event that a county, city or school district imposing tax pursuant to the authority of subpart B of part I of article twenty-nine of this chapter does not pay in full a bill described in paragraph three of this subdivision by the twenty-fifth day of the month described in paragraphs two and three of this subdivision, the comptroller shall deduct any amount not paid from the amount of the next payment or payments due such county, city or school district pursuant to subdivision (c) of section twelve hundred sixty-one of this chapter until such amount not paid has been recovered. The comptroller shall deposit the amounts so deducted and recovered in the mass transportation operating assistance fund to be credited as provided in paragraph three of this subdivision.
(5) In the event that a city in which the taxes imposed by § 1108 of the month described in paragraphs two and three of this subdivision, the comptroller shall deduct any amount not paid from the amount of any other moneys due such city from the comptroller, not otherwise pledged, dedicated or encumbered pursuant to other state law, until such amount not paid has been recovered. The comptroller shall deposit the amounts so deducted and recovered in the mass transportation operating assistance fund to be credited as provided in paragraph three of this subdivision.
(6) The commissioner shall certify the amount of any over calculation or under calculation of any certification required to be made to the comptroller under paragraph three of this subdivision as soon after its discovery as reasonably possible and subsequent bills to a city, county or school district to which the over calculation or under calculation relates shall be adjusted accordingly, provided that the comptroller may adjust such number of subsequent bills as the comptroller shall consider reasonable in view of the amount of the adjustment and all other facts and circumstances.
(7) On the same date that the comptroller is required to bill a county, city or school district an amount as provided in paragraph three of this subdivision, the comptroller shall, after having first made any deposits required by § 92-r of the state finance law and only to the extent that there are moneys remaining after having made such required deposits, withdraw from the state treasury, to the debit of the general fund, an amount equal to the total of the amounts required to be billed to counties, cities and school districts pursuant to such subdivision three and deposit such total amount in the mass transportation operating assistance fund to be credited as provided in such paragraph three. The amount of any over calculation or under calculation determined in paragraph six of this subdivision shall likewise be applied to the amounts required to be deposited under this paragraph, so that the amounts deposited under this paragraph equal the total of the amounts required to be billed to counties, cities and school districts under such paragraph three, as adjusted, pursuant to paragraph six of this subdivision.
(h) Notwithstanding any provision of law to the contrary:
(1) The commissioner shall determine and certify to the comptroller the amount of revenue foregone as a result of the cents per gallon tax in paragraph two of subdivision (m) of section eleven hundred eleven of this part in lieu of tax at the rate provided in subdivision (a) of this section.
(2) Commencing with the sales tax quarterly period beginning on June first, two thousand six, the commissioner shall make such determinations and certifications on the twelfth day of the month following the month in which sales tax quarterly returns are due under section eleven hundred thirty-six of this article with respect to such quarterly period. Such determinations and certifications may be based on such information as may be available to the commissioner at the time such determinations and certifications must be made under this subdivision. The commissioner shall be authorized to require such information as the commissioner deems necessary to comply with the requirements of this subdivision from persons required to file returns under such section eleven hundred thirty-six.
(3) The comptroller shall, after having first made any deposits required by § 92-r of the state finance law and only to the extent that there are moneys remaining after having made such required deposits, withdraw from the state treasury, to the debit of the general fund, and shall deposit the amount certified by the commissioner as such revenue foregone in the mass transportation operating assistance fund established by § 88-a of the state finance law to the credit of the metropolitan mass transportation operating assistance account therein.
(4) Neither the commissioner nor the comptroller shall be held liable for any inaccuracy in such determinations and certifications. The commissioner shall certify the amount of any over calculation or under calculation of any certification required to be made to the comptroller under this subdivision as soon after its discovery as reasonably possible.