City of Gloversville, NY Sales Tax

An addition or alteration to real property which:

Substantially adds to the value of the real property or appreciably prolongs the useful life of the real property.

Becomes part of the real property or is permanently affixed to the real property so that removal would cause material damage to the property or article itself.

Is intended to become a permanent installation.

A mobile home shall not constitute an addition or "capital improvement" to real property, property or land, regardless of the nature of its installation.

MOBILE HOME

A structure which is:

A type of manufactured housing.

Not self-propelled.

Transportable in one or more sections that may be folded, collapsed or telescoped when being towed and expanded later to provide additional cubic capacity, or that may be separately towable and designed to be joined into one integral structure capable of being separated into the sections for repeated towing.

Built on a permanent chassis, comprised of frame and wheels, that is to be connected to utilities.

Designed to be used as a permanent dwelling, with or without permanent foundation.

Used for residential or commercial purposes.

The term "mobile home" shall also include structures commonly called "double wides."

The term "mobile home" shall not include:

Structures designed and constructed primarily for temporary living quarters, recreations, camping or travel.

Furniture, fixtures, furnishings, appliances, attachments or similar tangible personal property not incorporated as component parts of a mobile home at the time of manufacture.

NEW MOBILE HOME

A mobile home which is sold for the first time at retail, including all components incorporated into such mobile home at the time of manufacture and remaining unchanged at the time of the first retail sale thereof.

PURCHASE AT RETAIL

A purchase by any person for any purpose other than those set forth in the first definition of "retail sale" in this subsection.

PURCHASER

A person who purchases property or to whom are rendered services, the receipts from which are taxable under this Article.

RECEIPT

The amount of the sale price of any property and the charge for any service taxable under this Article, valued in money, whether received in money or otherwise, including any amount for which credit is allowed by the vendor to the purchaser, without any deduction for expenses or early payment discounts, but excluding any credit for tangible personal property accepted in part payment and intended for resale and excluding the cost of transportation of tangible personal property sold at retail where such cost is separately stated in the written contract, if any, and on the bill rendered to the purchaser. For special rules governing computation of receipts, see § 261-15.

RETAIL SALE

A sale of tangible personal property to any person for any purpose, other than for resale as such or as a physical component part of tangible personal property or for use by that person in performing the services subject to tax under § 261-12C(1)(a), (b), (c) and (e) where the property so sold becomes a physical component part of the property upon which the services are performed or where the property so sold is later actually transferred to the purchaser of the service in conjunction with the performance of the service subject to tax. Notwithstanding the preceding provisions of this subsection, a sale of any tangible personal property to a contractor, subcontractor or repairman for use or consumption in erecting structures or buildings or building on or otherwise adding to, altering, improving, maintaining, servicing or repairing real property, property or land, as the terms "real property," "property" and "land" are defined in the Real Property Tax Law, is deemed to be a "retail sale" regardless of whether the tangible personal property is to be resold as such before it is so used or consumed. Notwithstanding the preceding provisions of this subsection, the purchase of a truck, trailer or tractor-trailer combination for rental or lease to an authorized carrier, as described in § 261-16A(23), shall be deemed a "retail sale."

Notwithstanding the provisions of Subsection (1) of this definition, a sale of automotive fuel by a distributor is deemed to be a "retail sale," except for a sale of automotive fuel by a distributor to a purchaser duly registered with or licensed by the taxing authorities of another state as a distributor of a dealer in automotive fuel therein, for immediate exportation from the state into such other state, provided that the distributor making such sale complies with all regulations of the Tax Commission relating thereto. For purposes of this subsection, the following terms shall have the following meanings:

AUTOMOTIVE FUELDiesel motor fuel as defined in § 282 of the Tax Law, other than kerosene or propane used for residential purposes, or motor fuel as defined in Subdivision 2 of § 282 of the Tax Law. The phrase "used for residential purposes" shall have the same meaning as it has for purposes of § 1105-A of the Tax Law.

DISTRIBUTORThe same meaning as it has for purposes of Article 12-A of the Tax Law, excluding persons who are not required pursuant to § 282-a to pay the tax imposed thereby.

AUTOMOTIVE FUEL CARRIERAn automotive fuel carrier as defined in Article 21 of the Tax Law who or which is engaged in sales of automotive fuel in this state.

RETAIL SALEIn addition to its meaning under this subsection, the term "retail sale" includes the transfer of automotive fuel by a distributor into a motor vehicle or into a container from which automotive fuel is supplied by the distributor to a motor vehicle or vehicles of the distributor or of others.

The term "retail sale" does not include:

The transfer of tangible personal property to a corporation, solely in consideration for the issuance of its stock, pursuant to a merger or consolidation effected under the laws of New York or any other jurisdiction.

The distribution of property by a corporation to its stockholders as a liquidating dividend.

The distribution of property by a partnership to its partners in whole or partial liquidation.

The transfer of property to a corporation upon its organization in consideration for the issuance of its stock.

The contribution of property to a partnership in consideration for a partnership interest therein.

SALE, SELLING or PURCHASE

The sale of any automotive fuel by any person other than a distributor.

Any transfer of title or possession or both, exchange or barter, rental, lease or license to use or consume, conditional or otherwise, in any manner or by any means whatsoever for a consideration, or any agreement therefor, including the rendering of any service taxable under this Article for a consideration or any agreement therefor.

TANGIBLE PERSONAL PROPERTY

Corporeal personal property of any nature; however, except for purpose of the tax imposed by § 261-12B, such term shall not include gas, electricity, refrigeration and steam.

USE

The exercise of any right or power over tangible personal property by the purchaser thereof and includes but is not limited to the receiving, storage or any keeping or retention for any length of time, withdrawal from storage, any installation, any affixation to real or personal property or any consumption of such property.

VENDOR

Includes:

A person making sales of tangible personal property or services, the receipts from which are taxed by this Article.

A person maintaining a place of business in the state and making sales, whether at such place of business or elsewhere, to persons within this taxing jurisdiction of tangible personal property or services, the use of which is taxed by this Article.

A person who solicits business either by employees, independent contractors, agents or other representatives or by distribution of catalogs or other advertising matter and by reason thereof makes sales to persons within this taxing jurisdiction of tangible personal property or services, the use of which is taxed by this Article.

Any other person making sales to persons within this taxing jurisdiction of tangible personal property or services, the use of which is taxed by this Article, who may be authorized by the Tax Commission to collect such tax.

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.

CHARGE OF A ROOF GARDEN, CABARET OR OTHER SIMILAR PLACE

Any salesman, representative, peddler or canvasser who is treated by the State Tax Commission as a vendor, pursuant to the provisions of § 1101(b)(8)(ii) of the Tax Law.

When used in this Article for the purpose of the tax imposed under § 261-12E, the following terms shall mean:

HOTEL

A building or portion of it which is regularly used and kept open as such for the lodging of guests. The term "hotel" includes an apartment hotel, a motel, boardinghouse or club, whether or not meals are served.

OCCUPANCY

The use or possession or the right to the use or possession of any room in a hotel.

OCCUPANT

A person who, for a consideration, uses or has the right to use or possess any room in a hotel under any lease, concession, permit, right of access, license to use or other agreement, or otherwise.

OPERATOR

Any person operating a hotel.

PERMANENT RESIDENT

Any occupant of any room or rooms in a hotel for at least 90 consecutive days shall be considered a "permanent resident" with regard to the period of such occupancy.

RENT

The consideration received for occupancy valued in money, whether received in money or otherwise.

ROOM

Any room or rooms of any kind in any part or portion of a hotel, which is available for or let out for any purpose other than a place of assembly.

When used in this Article for purposes of the tax imposed under § 261-12F, the following terms shall mean:

ACTIVE ANNUAL MEMBER

A member who is not a life member but who enjoys full club privileges as distinguished from the privileges enjoyed by a person holding a nonresident membership, an associate membership or other partial or restricted membership.

ADMISSION CHARGE

The amount paid for admission, including any service charge and any charge for entertainment or amusement or for the use of facilities therefor.

AMUSEMENT CHARGE

Any admission charge of a roof garden, cabaret or other similar place.

Any charge made for admission, refreshment, service or merchandise at a roof garden, cabaret or other similar place.

DRAMATIC OR MUSICAL ARTS ADMISSION CHARGE

Any admission charge paid for admission to a theater, opera house, concert hall or other hall or place of assembly for a live dramatic, choreographic or musical performance.

DUES

Any dues or membership fee, including any assessment, irrespective of the purpose for which made, and any charges for social or sports privileges or facilities, except charges for sports privileges or facilities offered to members' guests which would otherwise be exempt if paid directly by such guests.

HONORARY MEMBER

A membership granted in a social or athletic club without payment of dues which may provide full or partial club privileges.

INITIATION FEE

Any payment, contribution or loan, required as a condition precedent to membership, whether or not such payment, contribution or loan is evidenced by a certificate of interest or indebtedness or share of stock, and irrespective of the person or organization to whom paid, contributed or loaned.

LESSOR

Any person who is the owner, licensee or lessee of any place of amusement or roof garden, cabaret or other similar place which he leases, subleases or grants a license to use to other persons who make amusement charges or admission charges.

PATRON

Any person who pays an amusement charge or who is otherwise required to pay the tax imposed under § 261-12F.

PLACE OF AMUSEMENT

Any place where any facilities for entertainment, amusement or sports are provided.

RECIPIENT

Any person who collects or receives or is under a duty to collect an amusement charge.

ROOF GARDEN, CABARET OR OTHER SIMILAR PLACE

Any roof garden, cabaret or other similar place which furnishes a public performance for profit.

SOCIAL OR ATHLETIC CLUB

Any club or organization of which a material purpose or activity is social or athletic.

§ 261-12 Imposition of sales tax.

[Amended 7-12-2005 by L.L. No. 1-2005]

On and after September 1, 2005, there is hereby imposed and there shall be paid a tax of 3% upon:

The receipts from every retail sale of tangible personal property, except as otherwise provided in this Article.

The receipts from every sale, other than sales for resale, of gas, electricity, refrigeration and steam, and gas, electric, refrigeration and steam service of whatever nature, and from every sale, other than sales for resale, of telephony and telegraphy and telephone and telegraph service of whatever nature, except interstate and international telephony and telegraphy and telephone and telegraph service.

Receipts for services.

The receipts from every sale, except for resale, of the following services:

The furnishing of information by printed mimeographed matter or by duplicating written or printed matter in any other manner, including the services of collecting, compiling or analyzing information of any kind of nature and furnishing reports thereof to other persons, but excluding the furnishing of information which is personal or individual in nature and which is not or may not be substantially incorporated in reports furnished to other persons, and excluding the services of advertising or other agents, or other persons acting in a representative capacity, and information services used by newspapers, radio broadcasters and television broadcasters in the collection and dissemination of news.

Producing, fabricating, processing, printing or imprinting tangible personal property, performed for a person who directly or indirectly furnishes the tangible personal property, not purchased by him for resale, upon which such services are performed.

Installing tangible personal property, excluding a mobile home, or maintaining, servicing or repairing tangible personal property, including a mobile home, not held for sale in the regular course of business, whether or not the services are performed directly or by means of coin-operated equipment or by any other means, and whether or not any tangible personal property is transferred in conjunction therewith:

[1]

Except:

[a]

Such services rendered by an individual who is engaged directly by a private homeowner or lessee in or about his residence and who is not in a regular trade or business offering his services to the public.

[b]

Any receipts from laundering, dry-cleaning, tailoring, weaving, pressing, shoe repairing and shoe shining.

[c]

For installing property which, when installed, will constitute an addition or capital improvement to real property, property or land, as the terms "real property," "property" and "land" are defined in the Real Property Tax Law.

[d]

Such services rendered with respect to commercial vessels and property used by or purchased for the use of such vessels, as such vessels and property are specified in § 1115(a)(8) of the Tax Law.

[e]

Such services rendered with respect to commercial aircraft, machinery or equipment and property used by or purchased for the use of such aircraft, as such aircraft, machinery or equipment and property are specified in § 1115(a)(21) of the Tax Law.

[f]

Such services rendered on or after September 1, 1982, with respect to tangible personal property for use or consumption directly and predominantly in the production for sale of tangible personal property by farming, as such tangible personal property is specified in § 261-16A(6) of this Article.

[2]

Provided, however, that nothing contained in this Subsection C(1)(c) shall be construed to exclude from taxation under this subsection or under Subsection B of this article any charge made by a person furnishing service subject to tax under Subsection B of this article for installing property at the premises of a purchaser of such a taxable service for use in connection with such service.

Storing all tangible personal property not held for sale in the regular course of business, and the rental of safe deposit boxes or similar space.

Maintaining, servicing or repairing real property, property or land, as such terms are defined in the Real Property Tax Law, whether the services are performed in or outside of a building, as distinguished from adding to or improving such real property, property or land by a capital improvement as such term "capital improvement" is defined in § 261-11B of this Article, but excluding services rendered by an individual who is not in a regular trade or business offering his services to the public, and excluding interior cleaning and maintenance services performed on a regular contractual basis for a term of not less than 30 days, other than window cleaning, rodent and pest control and trash removal from buildings.

Wages, salaries and other compensation paid by an employer to an employee for performing as an employee the services described in Subsection C(1)(a) through (e) of this section are not receipts subject to the taxes imposed under such subsection.

Food and drink.

The receipts from every sale of beer, wine or other alcoholic beverages or any other drink of any nature, or from every sale of food and drink of any nature or of food alone, when sold in or by restaurants, taverns or other establishments in this taxing jurisdiction or by caterers, including in the amount of such receipts any cover, minimum, entertainment or other charge made to patrons or customers, except those receipts taxed pursuant to Subsection F of this section:

In all instances where the sale is for consumption on the premises where sold.

In those instances where the vendor or any person whose services are arranged for by the vendor, after the delivery of the food or drink by or on behalf of the vendor for consumption off the premises of the vendor, serves or assists in serving, cooks, heats or provides other services with respect to the food or drink.

In those instances where the sale is for consumption off the premises of the vendor, except where food (other than sandwiches) or drink, or both, are sold in an unheated state and are of a type commonly sold for consumption off the premises and in the same form and condition, quantities and packaging, in establishments which are food stores other than those principally engaged in selling foods prepared and ready to be eaten.

The tax imposed by this subsection shall not apply to:

Food or drink which is sold to an airline for consumption while in flight.

Food or drink sold to a student of a nursery school, kindergarten, elementary or secondary school at a restaurant or cafeteria located on the premises of such a school, or food or drink other than beer, wine or other alcoholic beverages, sold at a restaurant, tavern or other establishment located on the premises of a college, university or a school (other than a nursery school, kindergarten, elementary or secondary school) to a student enrolled therein who purchases such food or drink under a contractual arrangement whereby the student does not pay cash at the time he is served, provided that the school, college or university described in this subsection is operated by an exempt organization described in § 1116(a) of the Tax Law, or is created, incorporated, registered or licensed by the State Legislature or pursuant to the Education Law or the regulations of the Commissioner of Education, or is incorporated by the Regents of the University of the State of New York or with their consent or the consent of the Commissioner of Education as provided in § 216 of the Education Law.

Food or drink sold through coin-operated vending machines at $0.10 or less, provided that the vendor is primarily engaged in making such sales and maintains records satisfactory to the State Tax Commission.

The rent for every occupancy of a room or rooms in a hotel in this taxing jurisdiction, except that the tax shall not be imposed upon a permanent resident or where the rent is not more than at the rate of $2 per day.

Amusements.

Any admission charge where such admission charge is in excess of $0.10 to or for the use of any place of amusement in this taxing jurisdiction, except charges for admission to race tracks, boxing, sparring or wrestling matches or exhibitions, which charges are taxed under any other law of this state, or dramatic or musical arts performances, or motion picture theaters, and except charges to a patron for admission to or use of facilities for sporting activities in which such patron is to be a participant, such as bowling alleys and swimming pools. For any person having the permanent use or possession of a box or seat or a lease or a license, other than a season ticket, for the use of a box or seat at a place of amusement, the tax shall be upon the amount for which a similar box or seat is sold for each performance or exhibition at which the box or seat is used or reserved by the holder, licensee or lessee, and shall be paid by the holder, licensee or lessee.

The dues paid to any social or athletic club in this taxing jurisdiction if the dues of an active annual member, exclusive of the initiation fee, are in excess of $10 per year, and on the initiation fee alone, regardless of the amount of dues, if such initiation fee is in excess of $10, except that the tax shall not apply to a fraternal society, order or association operating under the lodge system or any fraternal association of students of a college or university. Where the tax on dues applies to any such social or athletic club, the tax shall be paid by all members thereof, other than honorary members, regardless of the amount of their dues, and shall be paid on all dues or initiation fees for a period commencing on or after March 1, 1988. In the case of a life membership, the tax shall be upon the amount paid as life membership dues; however, a life member, other than an honorary member, paying an annual sales tax, based on the dues of an active annual member, shall continue such payments until the total amount of such tax paid is equal to the amount of tax that would have otherwise been due had the tax been imposed at the time such paid life membership has been purchased and at the then applicable rate.

The amount paid as charges of a roof garden, cabaret or other similar place in the state.

§ 261-13 Transitional provisions.

The taxes imposed under § 261-12A, C and D shall be paid upon sales made and services rendered on or after the effective date of this Article although made on or rendered under a prior contract, except as provided in § 261-22, and except that a delivery or transfer of possession of tangible personal property made after said date pursuant to an agreement for the sale of said property made before the date four months earlier than the effective date of this Article shall not be subject to tax if:

Such agreement for the sale of said property was made in writing.

The particular item or items of property so sold or agreed to be sold were segregated, before March 1, 1988, from any other similar property in the possession of the vendor and identified as having been appropriated to such sale or agreement of sale.

The purchaser, before November 1, 1987, shall have paid to the vendor not less than 10% of the sale price of said property.

The tax imposed under § 261-12B shall be paid with respect to receipts for property or services sold on or after March 1, 1988, although made under a prior contract. Where property or service is sold on a monthly, quarterly or other term basis and the bills for such property or service are based on meter readings, the amount received on each bill for such property or service for a month or other term shall be a receipt subject to the tax, but such tax shall be applicable to all bills based on meters read on or after March 1, 1988, only where more than one-half (1/2) of the number of days included in the month or other period billed are days subsequent to November 1, 1987; provided, however, that where such bills are for telephone or telegraph service, the tax shall apply to all receipts on such bills dated on or after March 1, 1988, for which no previous bill was rendered; except, however, charges for services furnished before the date of the first bills.

The tax imposed under § 261-12E shall be paid upon any occupancy on and after March 1, 1988, although such occupancy is pursuant to a prior contract, lease or other arrangement. Where rent is paid on a weekly, monthly or other term basis, the rent shall be subject to the tax imposed under § 261-12E to the extent that it covers any period on and after March 1, 1988, and such rent shall be apportioned on the basis of the ratio of the number of days falling within said period to the total number of days covered thereby.

Except as otherwise hereinafter provided, the tax imposed under § 261-12F shall be applicable to any admission to or the use of facilities of a place of amusement occurring on or after March 1, 1988, whether or not the admission charge has been paid prior to such date, unless the tickets were actually sold and delivered (other than for resale) prior to March 1, 1988, to a person attending the performance occurring on or after such date.

A refund or credit equal to the amount of the sales or compensating use tax paid on the sale or use of tangible personal property, under a local law, ordinance or enactment imposed pursuant to the authority of Chapter 873 of the Laws of 1934, as amended, or Chapter 278 of the Laws of 1947 as amended, shall be allowed, upon application to the Tax Commission as provided for herein, where such property has been used by the purchaser or user in performance of the services subject to tax under § 261-12C(1)(a), (b), (c) and (e) and such property has become a physical component part of the property upon which the services are performed or has been transferred to the purchaser of the service in conjunction with the performance of the service subject to tax, except that such refund or credit may not exceed the combined state and local taxes, if any, paid, pursuant to Article 28 of the Tax Law and under the tax imposed by this Article, on the sale or use of the service in connection with which such property was used. No interest shall be allowed or paid upon any refund made or credit allowed pursuant to this section.

With respect to the additional tax of 1 1/2% imposed effective September 1, 2005, the provisions of Subsections A, B, C and D and E of this section apply, except that, for the purposes of this Subsection F, all references in said Subsections A, B, C and D to an effective date shall be read as referring to September 1, 2005; all references in said Subsection A to the date four months prior to the effective date shall be read as referring to May 1, 2005; and the reference in Subsection B to the date immediately preceding the effective date shall be read as referring to August 31, 2005. Nothing herein shall be deemed to exempt from tax at the rate in effect prior to September 1, 2005, any transaction which may not be subject to the additional tax imposed effective on that date.

[Added 7-12-2005 by L.L. No. 1-2005]

§ 261-14 Imposition of compensating use tax.

[Amended 7-12-2005 by L.L. No. 1-2005]

Except to the extent that property or services have already been or will be subject to the sales tax under this article, there is hereby imposed on every person a use tax for the use within this taxing jurisdiction on and after September 1, 2005, except as otherwise exempted under this article:

Of any tangible personal property purchased at retail.

Of any tangible personal property (other than computer software used by the author or other creator) manufactured, processed or assembled by the user:

If items of the same kind of tangible personal property are offered for sale by him in the regular course of business; or

If items are used as such or incorporated into a structure, building or real property, by a contractor, subcontractor or repairman in erecting structures or buildings, or building on, or otherwise adding to, altering, improving, maintaining, servicing or repairing real property, property or land, as the terms "real property," "property" and "land" are defined in the Real Property Tax Law, if items of the same kind are not offered for sale as such by such contractor, subcontractor or repairman or other user in the regular course of business.

Of any of the services described in paragraphs (1), (7) and (8) of subdivision (c) of section two.[1]

[1]

Editor's Note: See New York State Tax Law § 1105(c)(1), (7) and (8).

Of any tangible personal property, however acquired, where not acquired for purposes of resale, upon which any of the services described under paragraphs (2), (3) and (7) of subdivision (c) of section two[2] have been performed.

[2]

Editor's Note: See New York State Tax Law § 1105(c)(2), (3) and (7).

Of any telephone answering service described in subdivision (b) of section two.[3]

[3]

Editor's Note: See New York State Tax Law § 1105(b)(1)(C).

Of any computer software written or otherwise created by the user if the user offers software of a similar kind for sale as such or as a component part of other property in the regular course of business.

(7)

Of any prepaid telephone calling service.

(8)

Of any gas or electricity described in subdivision (b) of section two of this enactment.[4]

[4]

Editor's Note: See New York State Tax Law § 1105(b)(1)(C).

For purposes of Subsection A(1) of this section, the tax shall be at the rate of 3% of the consideration given or contracted to be given for such property, or for the use of such property, including any charges for shipping or delivery as described in paragraph three of subdivision (b) of section one,[5] but excluding any credit for tangible personal property accepted in part payment and intended for resale.

[5]

Editor's Note: See New York State Tax Law § 1101(b)(3).

For purposes of Subsection A(2)(a) of this section, the tax shall be at the rate of 3% of the price at which items of the same kind of tangible personal property are offered for sale by the user, and the mere storage, keeping, retention or withdrawal from storage of tangible personal property by the person who manufactured, processed or assembled such property shall not be deemed a taxable use by him or her; provided, however, that if the user uses such an item itself on its own premises (not including making a gift of such tangible personal property), solely in the conduct of the user's own business operations, and the item retains its characteristic as tangible personal property when so used, the tax shall be at the rate, and on the consideration, described in Subsection D of this section.

For purposes of Subsection A(2)(b) of this section, the tax shall be at the rate of 3% of the consideration given or contracted to be given for the tangible personal property manufactured, processed or assembled into the tangible personal property the use of which is subject to tax, including any charges for shipping or delivery as described in paragraph three of subdivision (b) of section one.[6]

[6]

Editor's Note: See New York State Tax Law § 1101(b)(3).

Notwithstanding the foregoing provisions of this section, for purposes of Subsection A(2) of this section, there shall be no tax on any portion of such price which represents the value added by the user to tangible personal property which he fabricates and installs to the specifications of an addition or capital improvement to real property, property or land, as the terms "real property," "property" and "land" are defined in the Real Property Tax Law, over and above the prevailing normal purchase price prior to such fabrication of such tangible personal property which a manufacturer, producer or assembler would charge an unrelated contractor who similarly fabricated and installed such tangible personal property to the specifications of an addition or capital improvement to such real property, property or land.

For purposes of Subsection A(3), (4) and (5) of this section, the tax shall be at the rate of 3% of the consideration given or contacted to be given for the service, including the consideration for any tangible personal property transferred in conjunction with the performance of the service and also including any charges for shipping and delivery of the property so transferred and of the tangible personal property upon which the service was performed as such charges are described in paragraph three of subdivision (b) of section one.[7]

[7]

Editor's Note: See New York State Tax Law § 1101(b)(3).

For purposes of Subsection A(6) of this section, the tax shall be at the rate of 3% of the consideration given or contracted to be given for the tangible personal property which constitutes the blank medium, such as disks or tapes, used in conjunction with the software, or for the use of such property, and the mere storage, keeping, retention or withdrawal from storage of computer software described in such Subsection A(6) by its author or other creator shall not be deemed a taxable use by such person.

For purposes of Subsection A(7) of this section, the tax shall, except as otherwise provided by law, be at the rate of 3% of the consideration given or contracted to be given for the service, including the consideration for any tangible personal property transferred in conjunction with the service and also including any charges for shipping and delivery of the property so transferred as such charges are described in paragraph three of subdivision (b) of section eleven hundred one,[8] provided that, if the user offers like services for sale in the regular course of business, the tax shall be at the rate of 2% of the price at which the user offers such like services for sale.

[8]

Editor's Note: See New York State Tax Law § 1101(b)(3).

For purposes of Subsection A(8) of this section, the tax shall, except as otherwise provided by law, be at the rate of 3% of the consideration given or contracted to be given for, or for the use of, the gas or electricity, including the consideration for any tangible personal property transferred in conjunction with the performance thereof, and including any charges described in paragraph three of subdivision (b) of section eleven hundred one of this article.[9]

[9]

Editor's Note: See New York State Tax Law § 1101(b)(3).

§ 261-15 Computing receipts for consideration.

The retail sales tax imposed under § 261-12A and the compensating use tax imposed under § 261-14, when computed in respect to tangible personal property whenever manufactured, processed or assembled and used by such manufacturer, producer or assembler in the regular course of business within this taxing jurisdiction, 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 § 261-14 hereof.

Tangible personal property which has been purchased by a resident of this taxing jurisdiction for use outside of this taxing jurisdiction 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 that:

Where a taxpayer affirmatively shows that the property was used outside this taxing jurisdiction by him for more than six months prior to its use within this taxing jurisdiction, property shall be taxed on the basis of current market value of the property at the time of its first use within this taxing jurisdiction. The value of such property, for compensating use tax purposes, may not exceed its cost.

The compensating use tax on such tangible personal property brought into this taxing jurisdiction (other than for complete consumption or for incorporation into real property located in this taxing jurisdiction) and used in the performance of a contract or subcontract within this taxing jurisdiction by a purchaser or use 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 taxing jurisdiction.

With respect to property leased or sold under a contract deferring payments, the tax shall be payable at such times and in such amounts as may be prescribed by the State Tax Commission as provided in § 1132 of the Tax Law.

If the State Tax Commission has prescribed or shall prescribe schedules of the amount of tax to be collected upon each gallon of motor fuel and diesel motor fuel sold at retail service stations, and upon each pack of cigarettes, as provided in § 1111 of the Tax Law, the tax thereon shall be collected as prescribed in such schedules.

Retail sales tax; regions.

The retail sales tax imposed under § 1105(a) of the Tax Law with respect to automotive fuel shall be based on the regional average retail sales price for the region in which the sale occurs and shall be collected in accordance with the schedules with reference to automotive fuel prescribed pursuant to § 1111 of the Tax Law; provided, however, that, in the case of sales of automotive fuel to an automotive fuel carrier, such tax shall be collected by applying the highest rate prescribed by any schedule to the highest regional average retail sales price applicable for any region described in Subsection E(2) of this section. Notwithstanding any other provisions of this subsection, if an automotive fuel carrier presents to a distributor an automotive fuel certificate, as described in § 1134(a) of the Tax Law, upon the purchase of automotive fuel from such distributor, such distributor shall collect the tax in accordance with the schedule as stated in such certificate.

The Tax Commission, after consultation with the Commissioner of Energy, shall prescribe, pursuant to rules and regulations, not more than nine regions as it shall determine to be necessary, each of which shall include one or more counties, except that counties wholly within a city shall be included in the same region, and the Tax Commission shall assign each distributor to one such region or regions, as the Tax Commission shall determine, for purposes of the collection of taxes imposed by the Tax Law and pursuant to the authority of Article 29 of the Tax Law. Such assignment shall take into account the locations of the places of business of such distributor and of the purchasers to whom automotive fuel is sold by such distributor, as such locations are indicated on the certificates of registration required to be filed pursuant to § 1134 of the Tax Law.

Nothing in this section shall be construed to require a purchaser of automotive fuel other than a purchaser who is an automotive fuel carrier to pay taxes to a distributor required to collect the taxes imposed by the Tax Law and authorized to be imposed by Article 29 of the Tax Law on the sale of automotive fuel, at a rate that exceeds the rate in the appropriate schedule with reference to automotive fuel as prescribed pursuant to Subsection D of this section applied to a price that exceeds the regional average retail sales price for the region in which the sale occurs.

Nothing in this Article shall be construed to require the payment of the taxes imposed pursuant to this Article or authorized to be imposed pursuant to Article 29 of the Tax Law more than once on automotive fuel sold within the state. The taxes so imposed and authorized to be imposed, though payable to the distributor, shall be borne by the user or consumer of automotive fuel; and when the foregoing taxes are paid to the distributor, they shall be deemed to have been so paid for the account of the user or consumer; and the price paid by such user or consumer for such fuel, provided that such price is not less than the amount of the taxes imposed thereon, shall be presumed to include such taxes.

For purposes of this section, the term "regional average retail sales price" shall mean the regional average retail sales price as prescribed by the Energy Commissioner pursuant to § 5-125 of the Energy Law.

Notwithstanding the provisions of Subsection E(1) of this section, the retail sales tax imposed under § 261-12A of this Article with respect to automotive fuel sold by a distributor shall be based on the actual receipt rather than the regional average retail sales price if such purchase is for consumption by a purchaser who or which is commonly referred to as a "commercial account" of a large volume of automotive fuel and if not resold and such purchaser presents to such distributor a certificate which the Tax Commission has authorized pursuant to § 1132(i) of the Tax Law.

The retail sales tax imposed under § 261-12A and the compensating use tax imposed under § 261-14, when computed in respect to a new mobile home, shall be computed on 70% of the receipts or consideration given therefor by the purchaser or user.

§ 261-16 Exemptions from sales and use taxes.

Receipts from the following shall be exempt from the tax on retail sales imposed under § 261-12A and the compensating use tax imposed under § 261-14:

Food, food products, beverages, dietary foods and health supplements sold for human consumption but not including candy and confectionery, fruit drinks which contain less than 70% natural fruit juice, soft drinks, sodas and beverages such as are ordinarily dispensed at soda fountains or in connection therewith (other than coffee, tea or cocoa) and beer, wine or other alcoholic beverages, all of which shall be subject to the retail sales and compensating use taxes, whether or not the item is sold in liquid form. Nothing herein shall be construed as exempting food or drink from the tax imposed under § 261-12D.

Water, when delivered to the consumer through mains or pipes.

Drugs and medicines intended for use, internally or externally, in the cure, mitigation, treatment or prevention of illnesses or diseases in human beings, medical equipment (including component parts thereof) and supplies required for such use or to correct or alleviate physical incapacity, and products consumed by humans for the preservation of health but not including cosmetics or toilet articles, notwithstanding the presence of medicinal ingredients therein, or medical equipment (including component parts thereof) and supplies, other than such drugs and medicines, purchased at retail for use in performing medical and similar services for compensation.

Prosthetic aids, hearing aids, eyeglasses and artificial devices and component parts thereof purchased to correct or alleviate physical incapacity in human beings.

Newspapers and periodicals.

Tangible personal property, except property incorporated in a building or structure but not including posts and wire which are used to make and maintain a trellis for grapes, for use or consumption directly and predominantly in the production for sale of tangible personal property by farming, including stock, dairy, poultry, fruit, fur-bearing-animal, graping and truck farming. The term "farming" shall also include ranching, operating nurseries, greenhouses, vineyard trellises or other similar structures used primarily for the raising of agricultural, horticultural, vinicultural, viticultural or floricultural commodities, and operating orchards; in addition, tangible personal property for use in erecting, adding to, altering or improving a silo used in farming to make and store silage on a farm, provided that such tangible personal property is to become an integral component part of such silo.

(7)

Tangible personal property sold by a mortician, undertaker or funeral director. However, all tangible personal property sold to a mortician, undertaker or funeral director for use in the conducting of funerals shall not be deemed a sale for resale within the meaning of § 261-11B of this Article and shall not be exempt from the retail sales tax.

(8)

Commercial vessels primarily engaged in interstate or foreign commerce and property used by or purchased for the use of such vessels for fuel, provisions, supplies, maintenance and repairs (other than articles purchased for the original equipping of a new ship).

(9)

Fuel sold to an airline for use in its airplanes.

(10)

Tangible personal property purchased for use or consumption directly and predominantly in research and development in the experimental or laboratory sense. Such research and development shall not be deemed to include the ordinary testing or inspection of materials or products for quality control, efficiency surveys, management studies, consumer surveys, advertising, promotions or research in connection with literary, historical or similar projects.

(11)

The flags of the United States of America and the State of New York.

(12)

Tangible personal property for use or consumption directly and predominantly in the production of tangible personal property, gas, electricity, refrigeration or steam for sale, by manufacturing, processing, generating, assembling, refining, mining or extracting, or telephone central office equipment or station apparatus or comparable telegraph equipment for use directly and predominantly in receiving at destination or initiating and switching telephone or telegraph communication. This exemption shall include all pipe, pipeline, drilling rigs, service rigs, vehicles and associated equipment used in the drilling, production and operation of oil, gas and solution mining activities to the point of sale to the first commercial purchaser.

(13)

Tangible personal property sold through coin-operated vending machines at $0.10 or less, provided that the retailer is primarily engaged in making such sales and maintains records satisfactory to the State Tax Commission.

(14)

Tangible personal property sold through coin-operated bulk vending machines at $0.25 or less, provided that the retailer is primarily engaged in making such sales and maintains records satisfactory to the State Tax Commission. As used in this subsection, "bulk vending machine" means a vending machine, containing unsorted merchandise, which upon insertion of a coin, dispenses the same in approximately equal portions, at random and without selection by the customer.

(15)

Motor vehicles, as such term is defined in § 125 of the Vehicle and Traffic Law, sold by a husband or wife to his or her spouse, or by a parent to his or her child, or by a child to his or her parent; provided, however, that this exemption shall not apply if the vendor is a dealer as defined in § 415 of the Vehicle and Traffic Law.

(16)

Tangible personal property sold to a contractor, subcontractor or repairman for use in erecting a structure or building of an organization described in § 261-17A, or adding to, altering or improving real property, property or land of such an organization, as the terms "real property," "property" and "land" are defined in the Real Property Tax Law; provided, however, that no exemption shall exist under this subsection unless such tangible personal property is to become an integral component part of such structure, building or real property.

(17)

Tangible personal property sold to a contractor, subcontractor or repairman for use in maintaining, servicing or repairing real property, property or land of an organization described in § 261-17A, as the terms "real property," "property" and "land" are defined in the Real Property Tax Law; provided, however, that no exemption shall exist under this subsection unless such tangible personal property is to become an integral component part of such structure, building or real property.

(18)

Tangible personal property sold by a contractor, subcontractor or repairman to a person other than an organization described in § 261-17A, for whom he is adding to, or improving real property, property or land by a capital improvement, or for whom he is about to do any of the foregoing, if such tangible personal property is to become an integral component part of such structure, building or real property; provided, however, that if such sale is made pursuant to a contract irrevocably entered into before September 1, 1969, no exemption shall exist under this subsection.

(19)

Tangible personal property sold by a person at his residence, provided that such person or any member of his household does not conduct a trade or business in which similar items are sold, and the receipts from such sales can reasonably be expected not to exceed $600 in a calendar year. If such person reasonably expects that his receipts from such sales will not exceed $600 in a calendar year, but such receipts do exceed such sum, the exemption provided for in this subsection will apply, but only to the first $600 of receipts in such calendar year; provided, however, that where a person 16 years of age or older has engaged in such sales for three days in a calendar year, the exemption provided for in this subsection shall not apply to subsequent sales in that calendar year. The exemption provided for in this subsection shall also not apply to sales at a private residence conducted by an auctioneer, sheriff or other third party, a sale held to liquidate an estate or the sale of boats, snowmobiles or motor vehicles except such sales of motor vehicles within the exemptions of Subsection A(15) of this section.

(20)

Cartons, containers and wrappings and packaging materials and supplies, and components thereof, for use and consumption by a vendor in packaging or packing tangible personal property for sale and actually transferred by the vendor to the purchaser.

(21)

Paper, ink and any other tangible personal property purchased for use in the publication of a shopping paper, as such term is defined in and limited by Subsection I of this section, which is to become a physical component part of such paper.

(22)

Commercial aircraft primarily engaged in intrastate, interstate or foreign commerce; machinery or equipment to be installed on such aircraft; property used by or purchased for the use of such aircraft for maintenance and repairs; and flight simulators purchased by commercial airlines.

(23)

The rental or lease of trucks, tractors or tractor-trailer combinations to an authorized carrier, pursuant to a written contractual agreement, for use in the transportation for hire of tangible personal property as augmenting equipment by such authorized carrier, provided that under such rental, lease or license to use, the owner of any such vehicle or any employee of such owner operates such vehicle. For purposes of this subsection, the term "authorized carrier" shall have the same meaning given that term in Subpart A of Part 1057 of Title 49 of the Code of Federal Regulations and in Part 845 of Title 17 of the Codes, Rules and Regulations of the State of New York, as the case may he, and the term "augmenting equipment" shall have the same meaning given that term in such part of such title of the Codes, Rules and Regulations of the State of New York.

(24)

Used mobile homes.

News services; research and development.

Telephony and telegraphy and telephone and telegraph service used by newspapers, radio broadcasters and television broadcasters in the collection or dissemination of news shall be exempt from the tax imposed under § 261-12B if the charge for such services is a toll charge or a charge for mileage services, including the associated station terminal equipment.

Gas, electricity, refrigeration and steam and gas, electric refrigeration and steam service of whatever nature for use or consumption directly and exclusively in research and development in the experimental or laboratory sense shall be exempt from the tax imposed under § 261-12B. Such research and development shall not be deemed to include the ordinary testing or inspection of materials or products for quality control, efficiency surveys, management studies, consumer surveys, advertising, promotions or research in connection with literary, historical or similar projects.

Fuel, gas, electricity, refrigeration and steam and gas, electric, refrigeration and steam service of whatever nature for use or consumption directly and exclusively in the production of tangible personal property, gas, electricity, refrigeration or steam for sale, by manufacturing, processing, assembling, generating, refining, mining, extracting, farming, agriculture, horticulture or floriculture shall be exempt from the tax imposed under § 261-12A and B.

Services otherwise taxable under § 261-12C(1)(a), (b) or (c) herein shall be exempt from tax under this Article if the tangible personal property upon which services were performed is delivered to the purchaser outside this taxing jurisdiction for use outside this taxing jurisdiction.

Telephone and telegraph service paid for by inserting coins in coin-operated telephones where the charge is $0.10 or less shall be exempt from the tax imposed under § 261-12B.

Services rendered by a veterinarian licensed and registered as required by the Education Law which constitute the practice of veterinary medicine as defined in said law, including hospitalization for which no separate boarding charge is made, shall not be subject to tax under § 261-12C(1)(c), but the exemption allowed by this subsection shall not apply to other services provided by a veterinarian to pets and other animals, including but not limited to boarding, grooming and clipping. articles of tangible personal property designed for use in some manner relating to domestic animals or poultry, when sold by such a veterinarian, shall not be subject to tax under § 261-12A or 261-14. However, the sale of any such articles of tangible personal property to a veterinarian shall not be deemed a sale for resale within the meaning of § 261-11B and shall not be exempt from retail sales tax.

Services otherwise taxable under § 261-12C(1)(c) shall be exempt from tax if performed upon prosthetic aids, hearing aids, eyeglasses, artificial devices or medical equipment when receipts from the retail sale of such items are exempt from tax under the provisions of Subsection A(3) and (4) of this section.

Sales of tangible personal property by a railroad in reorganization to a profitable railroad, as such terms are defined in Section 102 of the Rail Reorganization Act of 1973, as part of a plan of reorganization and restructuring under such Rail Reorganization Act, shall be exempt from the tax on retail sales imposed under § 261-12A of this Article and the compensating use tax imposed under § 261-14 of this Article.

Shopping papers.

Receipts from the retail sale of a shopping paper to the publisher of such publication shall be exempt from the tax imposed by § 261-12A, and receipts from the sale of printing services performed in publishing such paper shall be exempt from the tax imposed by § 261-12C(1)(b).

For purposes of this subsection, the term "shopping paper" shall mean those community publications variously known as "consumer papers," "pennysavers," "shopping guides," "town criers," "dollar stretchers" and similar publications distributed to the public, without consideration, for purposes of advertising and public information. To qualify as a shopping paper for purposes of this subsection, the publication must also:

Be distributed to the public on a community-wide basis.

Be published at stated intervals at least 50 times a year.

Have continuity as to title and general nature of content from issue to issue.

Contain in each issue news of general or community interest and community notices or editorial comment or articles by different authors.

Not constitute a book, either singly or when successive issues are put together.

Contain in each issue advertisements from numerous unrelated advertisers.

(g)

Be independently owned in that the publication is not owned by or under the control of the owners or lessees of a shopping center or a merchants' association or similar entity or a business which sells property or services (other than advertising) and the advertisements in such publication are not predominantly for the property or services sold by such business.

(h)

Meet the requirements set forth in Subsection I(3) of this section.

The advertisements in such publication shall not exceed 90% of the printed area of each issue.

The term "shopping paper" shall not include mail order and other catalogs, advertising fliers, travel brochures, house organs, theater programs, telephone directories, shopping and restaurant guides, racing tip and form sheets, shopping center advertising sheets and similar publications.

Fuel oil.

[Added 1-26-1988 by L.L. No. 1-1988]

Receipts from the retail sale or use of fuel oil (excluding diesel motor fuel) and coal used for residential purposes, the retail sale or use of wood used for residential heating purposes and the sale, other than for resale, of propane (except when sold in containers of less than 100 pounds), natural gas, electricity, steam and gas, electric and steam services used for residential purposes shall be exempt from the taxes imposed by this Article.

The exemption set forth in this subsection shall apply to receipts from all retail sales and uses described in Subsection J(1) of this section made, rendered or arising therefrom on or after March 1, 1988, although made or rendered under a prior contract, if a delivery or transfer of possession of such property or services is made after said date. Where such property or service is sold on a monthly, quarterly or other term basis and the bills for such property or service are based on meter readings, the amount received on each bill for such property or service for a month or quarter or other term shall be exempt, but such exemption shall be applicable to all bills based on meters read on or after March 1, 1988, only where more than one-half (1/2) of the number of days included in the month or other period billed are days subsequent to February 29, 1988.

Where a residence is a part of a multiple dwelling or other premises consisting of residential and nonresidential units or where a portion of a residence is used for nondwelling purposes, including the conduct of a trade or business, the same rules and regulations shall be applicable that have been established by the Commissioner of Taxation and Finance in order to allocate to such residence the portion of the sale of energy sources or services attributable to the residential portion.

If the Commissioner of Taxation and Finance has prescribed a certificate to be taken by the vendor of the energy sources or services specified in Subsection J(1) of this section from the purchaser of such energy sources or services, such certificate shall be applicable for the purposes of this section. Where a certificate is required, unless such vendor shall have received such certificate in such form as the Commissioner may prescribe, signed by the purchaser and setting forth his name and address, together with such other information as the Commissioner may require, stating that the premises for which such energy sources or services are purchased is used solely as a residence or identifying the residential portion of the premises for which such energy sources or services are purchased, including instances where a multiple dwelling unit or other premises consists of residential and nonresidential units or where a portion of a residence is used for nondwelling purposes, such as the conduct of a trade or business, the provisions of this subsection shall not apply, and the tax shall be imposed at the rate provided for in Subsections J(2) and (4) of this article. No further certificate need be furnished for any subsequent purchase for such premises if the information set forth in the certificate last furnished the vendor has not materially changed.[1]

[1]

Editor's Note: Former Subsection K, regarding exemption from taxation for sales of certain clothing and footwear exempt according to state law, added 1-25-2000 by L.L. No. 2-2000, and Subsection L, providing for additional clothing and footwear exemptions, added 7-15-2003 by L.L. No. 1-2003, which subsections represented Section Six of L.L. No. 11-1987 and immediately followed this subsection, were repealed 5-23-2006 by L.L. No. 2-2006, effective 6-1-2006.

§ 261-17 Exempt organizations.

Except as otherwise provided in this section, any sale or amusement charge by or to any of the following or any use or occupancy by any of the following shall not be subject to the sales and compensating use taxes imposed under this article:

The State of New York, or any of its agencies, instrumentalities, public corporations (including a public corporation created pursuant to an agreement or compact with another state or Canada) or political subdivisions where it is the purchaser, user or consumer, or where it is a vendor of services or property of a kind not ordinarily sold by private persons.

The United States of America, and any of its agencies and instrumentalities, insofar as it is immune from taxation where it is the purchaser, user or consumer, or where it sells services or property of a kind not ordinarily sold by private persons.

The United Nations or any international organization of which the United States of America is a member where it is the purchaser, user or consumer, or where it sells services or property of a kind not ordinarily sold by private persons.

Any corporation, association, trust or community chest, fund or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation, [except as otherwise provided in Section 501(h) of the United States Internal Revenue Code of 1954, as amended], and which does not participate in or intervene in (including the publishing or distributing of statements) any political campaign on behalf of any candidate for public office.

A post or organization of past or present members of the Armed Forces of the United States or an auxiliary unit or society of, or a trust or foundation for, any such post or organization:

Which is organized in this state.

At least 75% of the members of which are past or present members of the Armed Forces of the United States and substantially all of the other members of which are individuals who are cadets or are spouses, widows or widowers of past or present members of the Armed Forces of the United States or of cadets.

No part of the net earnings of which inures to the benefit of any private shareholder or individual.

The following Indian nations or tribes residing in New York State: Cayuga, Oneida, Onondaga, Poospatuck, Saint Regis Mohawk, Seneca, Shinnecock, Tonawanda and Tuscarora, where the nation is the purchaser, user or consumer.

(7)

A not-for-profit corporation operating as a health maintenance organization subject to the provisions of Article 44 of the Public Health Law.

(8)

Cooperative and foreign corporations doing business in this state pursuant to the Rural Electric Cooperative Law.

Nothing in this section shall exempt:

Retail sales of tangible personal property by any shop or store operated by an organization described in Subsection A(4), (5) or (6) of this section.

Sales of food or drink in or by a restaurant, tavern or other establishment operated by an organization described in Subsection A(1), (4), (5) or (6) of this section, other than sales exempt under § 261-12D(2) from the taxes imposed hereunder, unless the purchaser is an organization exempt under this section.

Sales of the service of providing parking, garaging or storage for motor vehicles by an organization described in Subsection A(4) or (5) of this section operating a garage (other than a garage which is part of premises occupied solely as a private one- or two-family dwelling), parking lot or other place of business engaged in providing parking, garaging or storage for motor vehicles.

Sales of tangible personal property or services by cooperative and foreign corporations doing business in this state pursuant to the Rural Electric Cooperative Law, unless the purchaser is an organization exempt under this section.

Where any organization described in Subsection A(4) of this section carries on its activities in furtherance of the purposes for which it was organized, in premises in which, as part of said activities, it operates a hotel, occupancy of rooms in the premises and rents therefrom received by such corporation or association shall not be subject to tax hereunder.

Proceeds used to benefit organizations.

Except as provided in Subsection D(2) of this section, any admissions all of the proceeds of which inure exclusively to the benefit of the following organizations shall not be subject to any of the taxes imposed under § 261-12F:

An organization described in Subsection A(4), (5) or (6) of this section.

A society or organization conducted for the sole purpose of maintaining symphony orchestras or operas and receiving substantial support from voluntary contributions.

National Guard organizations.

A Police or Fire Department of a political subdivision of the state or a voluntary fire or ambulance company or exclusively to a retirement, pension or disability fund for the sole benefit of members of a Police or Fire Department or to a fund for the heirs of such members.

The exemption provided under Subsection D(1) of this section shall not apply in the case of admissions to:

Any athletic game or exhibition unless the proceeds shall inure exclusively to the benefit of elementary or secondary schools or unless, in the case of an athletic game between two elementary or secondary schools, the entire gross proceeds from such game shall inure to the benefit of one or more organizations described in Subsection A(4) of this section.

Carnivals, rodeos or circuses in which any professional performer or operator participates for compensation, unless the entire net profit from such carnival, rodeo or circus shall inure exclusively to the benefit of an organization described in Subsection A(4) of this section and such organization shall have as its charitable or educational purpose the operation of a school and of such a carnival, rodeo or circus.

Admission charges for admission to the following places or events shall not be subject to any of the taxes imposed under § 261-12F:

Any admission to agricultural fairs if no part of the net earnings thereof inures to the benefit of any stockholders or members of the association conducting the same, provided that the proceeds therefrom are used exclusively for the improvement, maintenance and operation of such agricultural fairs.

Any admission to a home or garden which is temporarily open to the general public as a part of a program conducted by a society or organization to permit the inspection of historical homes and gardens, provided that no part of the net earnings thereof inures to the benefit of any private stockholder or individual.

Any admissions to historic sites, houses and shrines, and museums conducted in connection therewith, maintained and operated by a society or organization devoted to the preservation and maintenance of such historic sites, houses, shrines and museums, provided that no part of the net earnings thereof inures to the benefit of any private stockholder or individual.

Receipts from the service of trash removal shall be exempt from the tax on such service imposed by this Article, where such service is rendered by a municipal corporation of the state, other than a city of 1,000,000 or more, including such service rendered on its behalf, under an agreement with such corporation.

Qualified amateur sports organization.

For purposes of Subsection A(4) of this section, in the case of a qualified amateur sports organization, the requirement of such Subsection A(4) that no part of its activities involve the provision of athletic facilities or equipment shall not apply, and such organization shall not fail to meet the requirement of such subsection merely because its membership is local or regional in nature.

For purposes of this subsection, the term "qualified amateur sports organization" means any organization organized and operated exclusively to foster national or international amateur sports competition if such organization is also organized and operated primarily to conduct national or international competition in sports or to support and develop amateur athletes for national or international competition in sports.

§ 261-18 Sales or deliveries made outside taxing jurisdiction.

Where a sale of tangible personal property or services other than those described in § 261-12B, including an agreement therefor, is made in this taxing jurisdiction but the property sold or the property upon which the services were performed is or will be delivered to the purchaser elsewhere, such sale shall not be subject to tax under this Article. However, if delivery occurs or will occur in a city, county or school district imposing a tax on the sale or use of such property, pursuant to the authority of Article 29 of the Tax Law, the vendor shall be required to collect from the purchaser, as provided in § 1254 of the Tax Law of the State of New York, the aggregate sales or compensating use taxes imposed by the city, if any, county and school district in which delivery occurs or will occur, for distribution by the State Tax Commission to such taxing jurisdiction or jurisdictions.

Where a sale of tangible personal property or services other than those described in § 261-12B, including an agreement therefor, is made outside this taxing jurisdiction but the property sold or the property upon which the services were performed is or will be delivered to the purchaser in this taxing jurisdiction, such sale and use of such property or services shall be subject to tax under this Article, and the vendor shall be required to collect from the purchaser, as provided in § 1254 of the Tax Law of the State of New York, the sale or use tax imposed by this Article, for distribution by the State Tax Commission to this taxing jurisdiction.

For the purposes of this section, "delivery" shall be deemed to include transfer of possession to the purchaser and the receiving of the property by the purchaser.

§ 261-19 Sale of motor vehicle to nonresident.

Where a sale of a motor vehicle, including an agreement therefor, is made in this taxing jurisdiction to a nonresident thereof, such sale shall not be subject to tax under this Article, despite the fact that such motor vehicle is delivered to the purchaser within this taxing jurisdiction, provided that the purchaser furnishes to the vendor, prior to taking delivery, proof satisfactory to the Tax Commission that the purchaser is a nonresident of this taxing jurisdiction, has no permanent place of abode within this taxing jurisdiction and is not engaged in carrying on in this taxing jurisdiction any employment, trade, business or profession in which the motor vehicle will be used in this taxing jurisdiction, and such other proof as the Tax Commission may require to ensure proper administration of the taxes imposed pursuant to the authority of Article 29 of the Tax Law. However, if the purchaser resides in a city, county or school district imposing a tax on the use of such motor vehicle, the vendor shall be required to collect from the purchaser, as provided in § 1254 of the Tax Law of the State of New York, the aggregate compensating use taxes imposed by the city, if any, county and school district in which the purchaser resides, for distribution by the State Tax Commission to such taxing jurisdiction or jurisdictions.

A vendor shall not be liable for failure to collect tax on such sale of a motor vehicle, provided that the proof furnished to him by the purchaser pursuant to Subsection A of this section shows that the purchaser's residence is not in any city, county or school district which imposes a tax on the use of such motor vehicle, provided that the vendor keeps such proof available for inspection by the State Tax Commission and further provided that such proof is not known by the vendor, prior to making physical delivery of the motor vehicle, to be false.

For purposes of this section, the term "motor vehicle" shall include a motor vehicle as defined in § 125 of the Vehicle and Traffic Law of the State of New York, and a trailer as defined in § 156 of such law.

§ 261-20 Territorial limitations.

Any tax imposed under the authority of this Article shall apply only within the territorial limits of this taxing jurisdiction, except that any establishment located partially within this taxing jurisdiction and partially within a town or towns and receiving jurisdiction shall be deemed to be wholly within this taxing jurisdiction for the purposes of the taxes imposed by § 261-12B and E.

§ 261-21 Additional exemptions from tax.

The following uses of property shall not be subject to the compensating use tax imposed under this Article:

Property used by purchaser.

[Amended 7-12-2005 by L.L. No. 1-2005]

In respect to the use of property used by the purchaser in this City prior to March 1, 1988.

In respect to the additional tax of 1 1/2% imposed effective September 1, 2005, in respect to the use of property used by the purchaser in this City prior to September 1, 2005.

In respect to the use of property purchased by the user while a nonresident of this taxing jurisdiction, except in the case of tangible personal property which the user, in the performance of a contract, incorporates into the real property located in the taxing jurisdiction. A person, while engaged in any manner in carrying on in this taxing jurisdiction any employment, trade, business or profession, shall not be deemed a nonresident with respect to the use in this taxing jurisdiction of property in such employment, trade, business or profession.

In respect to the use of property or services upon the sale of which the purchaser would be expressly exempt from the taxes imposed under § 261-12A, B or C.

In respect to the use of property which is converted into or becomes a component part of a product produced for sale by the purchaser.

In respect to the use of paper in the publication of newspapers and periodicals.

Municipal corporations; other jurisdictions.

In respect to the use of property or services to the extent that a retail sales tax or a compensating use tax was legally due and paid thereon, without any right to a refund or credit thereof, to any municipal corporation in this state or any other state or jurisdiction within any other state, but only when it is shown that such other state or jurisdiction allows a corresponding exemption with respect to the sale or use of tangible personal property or of any of the services upon which such a sale or compensating use tax was paid to this state and any of its municipal corporations, except as provided in Subsection F(2) of this section.

To the extent that a compensating use tax imposed by this Article and the compensating use tax imposed by Article 28 of the Tax Law are at a higher aggregate rate than the rate of tax imposed in any other state or jurisdiction within any other state, the exemption provided in Subsection F(1) of this section shall be inapplicable, and the taxes imposed by this Article and by Article 28 shall apply to the extent of the difference between such aggregate rate and the rate paid in such other state or jurisdiction. Where a retail sales tax or a compensating use tax was legally due and paid to any municipal corporation in this state, without any right to a refund or credit thereof, with respect to the sale or use of tangible personal property or any of the services subject to sales or compensating use tax, if the use of such property or services is then subject to the compensating use tax imposed by this Article and such tax is at a higher rate than the rate of tax imposed by the first municipal corporation, the tax imposed by this Article shall also apply but only to the extent of the difference in such rates.

For the purposes of this subsection, a payment to the State Tax Commission of a tax imposed by a municipal corporation shall be deemed a payment to such municipal corporation.

In respect to the use of spare parts (including engines), consumable technical supplies, maintenance and ground equipment used exclusively in the operation or handling or maintenance of aircraft and aircraft stores brought into this state from a foreign country by a foreign airline which holds a foreign air carrier permit issued by the Civil Aeronautics Board pursuant to Section 402 of the Federal Aviation Act of 1958, as amended, to engage in foreign air transportation, provided that:

Such property is to be used on aircraft (or directly in the operation, handling or maintenance of aircraft) of the airline providing foreign air transportation services (or such aircraft of another foreign airline eligible under this subdivision).

Such property would not be subject to taxes imposed in the foreign country in which the particular foreign airline is based if brought into such country by a United States airline operating in that country.

In respect to the use of a thoroughbred, standardbred or quarter horse purchased outside this taxing jurisdiction and brought into this taxing jurisdiction for the purpose of entering a racing event or events on which parimutuel wagering is authorized by law, and to prepare therefor; provided, however, that the exemption contained in this subsection shall not apply to any such horse which enters racing events in this taxing jurisdiction on more than five days in any one calendar year. Nothing contained herein shall alter the exemption provided to nonresidents as specified in Subsection B of this section.

§ 261-22 Refunds or uses based on proof of certain uses.

Conditions for refunds or credits.

Subject to the conditions and limitations provided for herein, a refund or credit shall be allowed for a tax paid pursuant to § 261-12A or 261-14:

On the sale or use within this taxing jurisdiction 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 taxing jurisdiction.

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 taxing jurisdiction if that property is subsequently reshipped by such purchaser or user to a point outside this taxing jurisdiction for use outside this taxing jurisdiction.

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 preexisting lump sum or unit price construction contract.

On the sale or use within this taxing jurisdiction of tangible personal property not purchased for resale, if the use of such property in this taxing jurisdiction 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 taxing jurisdiction for use outside this taxing jurisdiction.

On the sale to or use by any veterinarian of drugs or medicine if such drugs or medicine are used by such veterinarian in rendering services, which are exempt pursuant to § 261-16F of this Article, to livestock or poultry used in the production for sale of tangible personal property by farming or if such drugs or medicine are sold to a person qualifying for the exemption provided for in § 261-16A(6) of this Article for use by such person on such livestock or poultry.

On the sale of automotive fuel to an automotive fuel carrier where such fuel is resold by him or it.

(g)

On the sale of automotive fuel, where such fuel is purchased or used by the purchaser or user in a manner which would exempt its purchase or use from tax under this Article.

For the purpose of Subsection A(1)(c), the term "preexisting 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 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 which 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 Subsection A(1)(a) above, reshipped as required in Subsection A(1)(b) above, used in the manner described in Subsection A(1)(c), (d) and (e) above or resold as described in Subsection A(1)(f) above, or used by the purchaser in the manner described in Subsection A(1)(g) above within three years after the date such tax was payable to the State Tax Commission by the vendor pursuant to § 1137 of the Tax Law.

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 State Tax Commission, to qualify for such refund or credit, such tangible personal property must be incorporated into real property as required in Subsection A(1)(a) above, reshipped as required in Subsection A(1)(b) above, used in the manner described in Subsection A(1)(c), (d) and (e) above or resold as described in Subsection A(1)(f) above, or used by the purchaser in the manner described in Subsection A(1)(g) above within three years after the date such tax was payable to the State Tax Commission by such applicant pursuant to Article 28 of the Tax Law.

With respect to a sale or use described in Subsection A(1)(c) above, the purchaser or user shall be entitled to a refund or credit of the amount of the taxes imposed by this Article if enacted later than the date of such contract or bid, or of the amount reflecting an increase in the rate of tax enacted later than said date, as the case may be, but only to the extent that all such sales and use taxes paid on such sale or use under the aggregate statewide and local taxes imposed under Article 28 and by authority of Article 29 exceeded an amount computed by applying against such sale or use the aggregate of the rates of statewide and local sales and use taxes that were in effect at the time such contract was entered into or such bid was submitted.

With respect to a sale described in Subsection A(1)(f) above, the automotive fuel carrier shall be entitled to a refund or credit only of the amount by which the tax paid to a distributor imposed under the Tax Law, plus any tax imposed pursuant to the authority of Article 29, exceeds such tax that would have otherwise been collected upon the sale of such automotive fuel pursuant to § 1111(e)(1) of the Tax Law, based upon the regional average retail sales prices for the period in which the tax was imposed upon a purchaser of such fuel, where the sale by the automotive fuel carrier is a retail sale subject to the tax imposed under the Tax Law, plus any tax imposed pursuant to the authority of Article 29 of the Tax Law, but only if and to the extent that such automotive fuel carrier, in passing through the tax to be borne by the person who purchases from him pursuant to the provisions of § 1111(e)(4), passes through only the amount of tax which would be due if such sale were a retail sale subject to such taxes computed on the regional average retail sales price as provided in this subsection. Furthermore, such credit or refund shall be computed per gallon and to the nearest one-tenth cent ($0.001).

Omnibus carriers.

Subject to the conditions and limitations provided for in this subsection, a refund or credit shall be allowed for a tax paid pursuant to § 261-12A or 261-14 on the sale to or use by an omnibus carrier, described in this subsection, 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. Any such omnibus carrier 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 the Interstate Commerce Commission of the United States or pursuant to the contract, franchise or consent between such carrier and a city having a population of more than 1,000,000 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 such carrier's vehicle mileage in local transit service in this state in the calendar year immediately preceding the end of the quarterly return period prescribed by § 1136 of the Tax Law, to which such refund or credit relates, bears to such carrier's total mileage operated in this state in such year. An omnibus carrier 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 § 1136 of the Tax Law, by using the proportion that such carrier's vehicle mileage in local transit service in this state in the first three months of such operation bears to such carrier's total mileage operated in this state in such period. The amount of the refund or credit allowable on the local tax paid on such purchases or uses then shall be determined in accordance with the following table:

Percentage of Local Transit Service	Amount of Refund or Credit
Less than 10	None
10	10% of such tax
Greater than 10 but less than 70	10%, plus the product of 1.5 times each whole percent in excess of 10% of such tax
70 or more	100% of such tax