N.Y. Tax Law § 1101 — Definitions

§ 1101. Definitions. (a) When used in this article the term "person"\nincludes an individual, partnership, limited liability company, society,\nassociation, joint stock company, corporation, estate, receiver,\ntrustee, assignee, referee, and any other person acting in a fiduciary\nor representative capacity, whether appointed by a court or otherwise,\nand any combination of the foregoing.\n (b) When used in this article for the purposes of the taxes imposed by\nsubdivisions (a), (b), (c) and (d) of section eleven hundred five and by\nsection eleven hundred ten, the following terms shall mean:\n (1) Purchase at retail. A purchase by any person for any purpose other\nthan those set forth in clauses (A) and (B) of subparagraph (i) of\nparagraph (4) of this subdivision.\n (2) Purchaser. A person who purchases property or to whom are rendered\nservices, the receipts from which are taxable under this article,\nincluding a mobile telecommunications customer.\n (3) Receipt. (i) The amount of the sale price of any property and the\ncharge for any service taxable under this article, including gas and gas\nservice and electricity and electric service of whatever nature, valued\nin money, whether received in money or otherwise, including any amount\nfor which credit is allowed by the vendor to the purchaser, without any\ndeduction for expenses or early payment discounts and also including any\ncharges by the vendor to the purchaser for shipping or delivery, and,\nwith respect to gas and gas service and electricity and electric\nservice, any charges by the vendor for transportation, transmission or\ndistribution, regardless of whether such charges are separately stated\nin the written contract, if any, or on the bill rendered to such\npurchaser and regardless of whether such shipping or delivery or\ntransportation, transmission, or distribution is provided by such vendor\nor a third party, but excluding any credit for tangible personal\nproperty accepted in part payment and intended for resale. For special\nrules governing computation of receipts, see section eleven hundred\neleven of this article.\n (ii) Receipt shall include consideration received by the vendor from\nthird parties if:\n (A) The vendor receives consideration from a third party and the\nconsideration is directly related to a rebate, discount or similar price\nreduction on the sale;\n (B) The vendor has an obligation to pass such consideration through to\nthe purchaser in the form of a rebate, discount or similar price\nreduction;\n (C) The amount of the consideration to be paid by the third party is\nfixed and determinable by the vendor at the time of the sale of the\nproperty or service to the purchaser; and\n (D) One of the following criteria is met:\n (I) the purchaser presents a coupon, certificate or other\ndocumentation to the vendor to claim a rebate, discount or similar price\nreduction where the coupon, certificate or documentation is authorized,\ndistributed or granted by a third party with the understanding that the\nthird party shall reimburse any vendor to whom the coupon, certificate\nor documentation is presented;\n (II) the purchaser presents identification as a member of a group or\norganization entitled to a rebate, discount or similar price reduction;\nor\n (III) the rebate, discount or similar price reduction is identified as\na third party rebate, discount or similar price reduction on the invoice\nreceived by the purchaser or on a coupon, certificate or other\ndocumentation presented by the purchaser.\n (iii) Subparagraph (ii) of this paragraph shall not apply to rebates,\ndiscounts or similar price reductions that are reimbursed by a third\nparty on sales of motor vehicles.\n (iv) For the purposes of subclause (II) of clause (D) of subparagraph\n(ii) of this paragraph, "identification as a member of a group or\norganization entitled to a rebate, discount or similar price reduction"\nshall not include the presentation of a customer loyalty or related\nrewards program card.\n (4) Retail sale. (i) A sale of tangible personal property to any\nperson for any purpose, other than (A) for resale as such or as a\nphysical component part of tangible personal property, or (B) for use by\nthat person in performing the services subject to tax under paragraphs\n(1), (2), (3), (5), (7) and (8) of subdivision (c) of section eleven\nhundred five where the property so sold becomes a physical component\npart of the property upon which the services are performed or where the\nproperty so sold is later actually transferred to the purchaser of the\nservice in conjunction with the performance of the service subject to\ntax. Notwithstanding the preceding provisions of this subparagraph, a\nsale of any tangible personal property to a contractor, subcontractor or\nrepairman for use or consumption in erecting structures or buildings, or\nbuilding on, or otherwise adding to, altering, improving, maintaining,\nservicing or repairing real property, property or land, as the terms\nreal property, property or land are defined in the real property tax\nlaw, is deemed to be a retail sale regardless of whether the tangible\npersonal property is to be resold as such before it is so used or\nconsumed, except that a sale of a new mobile home to a contractor,\nsubcontractor or repairman who, in such capacity, installs such property\nis not a retail sale. Notwithstanding the preceding provisions of this\nsubparagraph, the purchase of a truck, trailer or tractor-trailer\ncombination for rental or lease to an authorized carrier, as described\nin paragraph twenty-two of subdivision (a) of section eleven hundred\nfifteen, shall be deemed a retail sale.\n (ii) Notwithstanding the provisions of subparagraph (i) of this\nparagraph, no motor fuel or diesel motor fuel shall be sold or used in\nthis state without payment, and inclusion in the sales price of such\nmotor fuel, of the tax on motor fuel required to be prepaid pursuant to\nthe provisions of section eleven hundred two of this article except\nwhere a provision of this article relating to motor fuel or diesel motor\nfuel specifically provides otherwise and except in the case of a sale or\nuse subject to tax under section eleven hundred five or eleven hundred\nten, respectively, of this article. Provided, however, except for such\nrequirement of prepayment of tax required by section eleven hundred two\nof this article, the provisions of this subparagraph shall not otherwise\nmodify the meaning of the term "retail sale" as used in this article.\nFor purposes of this subparagraph and sections eleven hundred two,\neleven hundred eleven, eleven hundred twenty, eleven hundred thirty-two,\neleven hundred thirty-four, eleven hundred thirty-five, eleven hundred\nthirty-six, eleven hundred forty-two, eleven hundred forty-five and\neighteen hundred seventeen of this chapter, the following terms shall\nhave the following meanings:\n (A) "Petroleum products" means diesel motor fuel as defined in\nsubdivision fourteen of section two hundred eighty-two of this chapter,\nother than kerosene or propane used for residential purposes, or motor\nfuel as defined in subdivision two of section two hundred eighty-two of\nthis chapter. The phrase "used for residential purposes" shall have the\nsame meaning as it has for purposes of section eleven hundred five-A of\nthis article.\n (B) The term "distributor" shall have the same meaning as it has for\npurposes of article twelve-A of this chapter, excluding persons who are\nnot required pursuant to section two hundred eighty-two-a to pay the tax\nimposed thereby.\n (C) The term "motor fuel" means motor fuel as defined in subdivision\ntwo of section two hundred eighty-two of this chapter.\n (D) The terms "filling station", "terminal" and "owner" shall have the\nsame meaning as they have for the purposes of article twelve-A of this\nchapter.\n (E) The term "diesel motor fuel" means diesel motor fuel as defined in\nsubdivision fourteen of section two hundred eighty-two of this chapter.\n (F) The terms "highway diesel motor fuel" and "non-highway diesel\nmotor fuel" shall have the same meaning as they have for purposes of\narticle twelve-A of this chapter.\n (iii) Notwithstanding the provisions of subparagraph (i) of this\nparagraph, no cigarettes shall be sold or used in this state without\npayment, and inclusion in the sales price of such cigarettes, of the tax\non cigarettes required to be prepaid pursuant to the provisions of\nsection eleven hundred three of this article except where a provision of\nthis article relating to cigarettes specifically provides otherwise and\nexcept in the case of a sale or use subject to tax under section eleven\nhundred five or eleven hundred ten, respectively, of this article.\nProvided, however, except for such requirement of prepayment of tax\nrequired by section eleven hundred three of this article, the provisions\nof this subparagraph shall not otherwise modify the meaning of the term\n"retail sale" as used in this article. For purposes of this subparagraph\nand sections eleven hundred three, eleven hundred eleven, eleven hundred\nfifteen, eleven hundred sixteen, eleven hundred twenty-one, eleven\nhundred thirty-two, eleven hundred thirty-four, eleven hundred\nthirty-five, eleven hundred thirty-six, eleven hundred thirty-eight,\neleven hundred forty-two and eleven hundred forty-five of this article\nand eighteen hundred seventeen of this chapter, the terms "cigarette,"\n"agent" and "package" shall have the same meaning that they have for\npurposes of article twenty of this chapter.\n (iv) (A) The term retail sale does not include:\n (I) The transfer of tangible personal property to a corporation,\nsolely in consideration for the issuance of its stock, pursuant to a\nmerger or consolidation effected under the law of New York or any other\njurisdiction.\n (II) The distribution of property by a corporation to its stockholders\nas a liquidating dividend.\n (III) The distribution of property by a partnership to its partners in\nwhole or partial liquidation.\n (IV) The transfer of property to a corporation upon its organization\nin consideration for the issuance of its stock.\n (V) The contribution of property to a partnership in consideration for\na partnership interest therein.\n (B) For an exception applicable to this subparagraph, see subdivision\n(q) of section eleven hundred eleven of this article.\n (v) Notwithstanding the provisions of subparagraph (i) of this\nparagraph, the following sales of tangible personal property shall be\ndeemed to be retail sales: (A) a sale to a single member limited\nliability company or a subsidiary for resale to its member or owner,\nwhere such single member limited liability company or subsidiary is\ndisregarded as an entity separate from its owner for federal income tax\npurposes (without reference to any special rules related to the\nimposition of certain federal taxes), including but not limited to\ncertain employment and excise taxes; (B) a sale to a partnership for\nresale to one or more of its partners; or (C) a sale to a trustee of a\ntrust for resale to one or more beneficiaries of such trust.\n (5) Sale, selling or purchase. Any transfer of title or possession or\nboth, exchange or barter, rental, lease or license to use or consume\n(including, with respect to computer software, merely the right to\nreproduce), conditional or otherwise, in any manner or by any means\nwhatsoever for a consideration, or any agreement therefor, including the\nrendering of any service, taxable under this article, for a\nconsideration or any agreement therefor.\n (6) Tangible personal property. Corporeal personal property of any\nnature. However, except for purposes of the tax imposed by subdivision\n(b) of section eleven hundred five of this article, such term shall not\ninclude gas, electricity, refrigeration and steam. Such term shall also\ninclude pre-written computer software, whether sold as part of a\npackage, as a separate component, or otherwise, and regardless of the\nmedium by means of which such software is conveyed to a purchaser. Such\nterm shall also include newspapers and periodicals where the vendor\nships or delivers the entire edition or issue of the newspaper or\nperiodical, with or without the advertising included in the paper\nedition or issue, but not including anything, other than advertising,\nnot in such paper edition or issue, to the purchaser by means of\ntelephony or telegraphy or other electronic media, but only where the\namount of the sale price to such purchaser of such newspaper or magazine\nor the subscription price, in the case of a subscription to a newspaper\nor periodical, including any charge by such vendor for shipping or\ndelivery to the purchaser, is separately stated to such purchaser.\nHowever, such term shall not include a modular home that is permanently\naffixed to real property, provided that, if a modular home is to be\nremoved from the realty, whether as a whole or disassembled, it and its\ncomponent parts shall be tangible personal property whether it is to be\nsold as a whole or as pieces.\n (7) Use. The exercise of any right or power over tangible personal\nproperty or over any of the services which are subject to tax under\nsection eleven hundred ten of this article or pursuant to the authority\nof article twenty-nine of this chapter, by the purchaser thereof, and\nincludes, but is not limited to, the receiving, storage or any keeping\nor retention for any length of time, withdrawal from storage, any\ninstallation, any affixation to real or personal property, or any\nconsumption of such property or of any such service subject to tax under\nsuch section eleven hundred ten or pursuant to the authority of such\narticle twenty-nine. Without limiting the foregoing, use also shall\ninclude the distribution of only tangible personal property, such as\npromotional materials, or of any such service subject to tax under such\nsection eleven hundred ten or pursuant to the authority of such article\ntwenty-nine.\n (8) Vendor. (i) The term "vendor" includes:\n (A) A person making sales of tangible personal property or services,\nthe receipts from which are taxed by this article;\n (B) A person maintaining a place of business in the state and making\nsales, whether at such place of business or elsewhere, to persons within\nthe state of tangible personal property or services, the use of which is\ntaxed by this article;\n (C) A person who solicits business either:\n (I) by employees, independent contractors, agents or other\nrepresentatives; or\n (II) by distribution of catalogs or other advertising matter, without\nregard to whether such distribution is the result of regular or\nsystematic solicitation, if such person has some additional connection\nwith the state which satisfies the nexus requirement of the United\nStates constitution;\nand by reason thereof makes sales to persons within the state of\ntangible personal property or services, the use of which is taxed by\nthis article;\n (D) A person who makes sales of tangible personal property or\nservices, the use of which is taxed by this article, and who regularly\nor systematically delivers such property or services in this state by\nmeans other than the United States mail or common carrier;\n (E) A person who regularly or systematically solicits business in this\nstate by the distribution, without regard to the location from which\nsuch distribution originated, of catalogs, advertising flyers or\nletters, or by any other means of solicitation of business, to persons\nin this state and by reason thereof makes sales to persons within the\nstate of tangible personal property, the use of which is taxed by this\narticle, if such solicitation satisfies the nexus requirement of the\nUnited States constitution;\n (F) A person making sales of tangible personal property, the use of\nwhich is taxed by this article, where such person retains an ownership\ninterest in such property and where such property is brought into this\nstate by the person to whom such property is sold and the person to whom\nsuch property is sold becomes or is a resident or uses such property in\nany manner in carrying on in this state any employment, trade, business\nor profession;\n (G) Any other person making sales to persons within the state of\ntangible personal property or services, the use of which is taxed by\nthis article, who may be authorized by the commissioner of taxation and\nfinance to collect such tax by part IV of this article;\n (H) The state of New York, any of its agencies, instrumentalities,\npublic corporations (including a public corporation created pursuant to\nagreement or compact with another state or Canada) or political\nsubdivisions when such entity sells services or property of a kind\nordinarily sold by private persons; and\n (I) A seller of tangible personal property or services, the use of\nwhich is taxed by this article if either (I) an affiliated person that\nis a vendor as otherwise defined in this paragraph uses in the state\ntrademarks, service marks, or trade names that are the same as those the\nseller uses; or (II) an affiliated person engages in activities in the\nstate that inure to the benefit of the seller, in its development or\nmaintenance of a market for its goods or services in the state, to the\nextent that those activities of the affiliate are sufficient to satisfy\nthe nexus requirement of the United States constitution. For purposes of\nthis clause, "affiliated person" has the same meaning as in clause (B)\nof subparagraph (v) of this paragraph. Nothing in this clause shall be\nconstrued to narrow the scope of any other provision in this paragraph.\nNotwithstanding the provisions of this clause, the activities in the\nstate of an affiliated person in providing accounting or legal services\nor advice to a seller, or in directing the activities of a seller,\nincluding, but not limited to, making decisions about (a) strategic\nplanning, (b) marketing, (c) inventory, (d) staffing, (e) distribution,\nor (f) cash management, will not result in making the seller a vendor\nunder this paragraph.\n (ii) (A) In addition, when in the opinion of the commissioner it is\nnecessary for the efficient administration of this article to treat any\nsalesman, representative, peddler or canvasser as the agent of the\nvendor, distributor, supervisor or employer under whom he operates or\nfrom whom he obtains tangible personal property sold by him, or for whom\nhe solicits business, the commissioner may, in his discretion, treat\nsuch agent as the vendor jointly responsible with his principal,\ndistributor, supervisor or employer for the collection and payment over\nof the tax. An unaffiliated person providing fulfillment services to a\npurchaser shall not be treated as a vendor by the commissioner under\nthis paragraph with respect to such activity. For purposes of this\nclause, persons are affiliated persons with respect to each other where\none of such persons has an ownership interest of more than five percent,\nwhether direct or indirect, in the other, or where an ownership interest\nof more than five percent, whether direct or indirect, is held in each\nof such persons by another person or by a group of other persons which\nare affiliated persons with respect to each other.\n (B) A person shall be deemed a vendor of the services enumerated in\nparagraph nine of subdivision (c) of section eleven hundred five of this\narticle, liable for all the obligations of a vendor, including the\ncollection, reporting and remittance of the tax imposed under this\narticle and possessing all the rights of a vendor including the right to\nan exclusion or a credit or refund of tax as provided in subdivision (e)\nof section eleven hundred thirty-two of this article, with respect to\nsuch services which are provided by a vendor thereof and are subject to\ntaxation under this article, where such person, its affiliate or agent\nbills, on behalf of such vendor, either (I) as part of, or as a schedule\nto, the statement of such person to its purchasers or (II) separately\n(without regard to whether or not such person has customers of its own),\nsuch enumerated services provided by such vendor. For the purpose of\nthis paragraph, "affiliate" means an entity which directly, indirectly\nor constructively controls a vendor of such enumerated services or is\ncontrolled by such vendor or is under the control of, along with such\nvendor, a common parent. Provided, however, the provisions of this\nclause shall not in any way be construed to otherwise limit or remove\nthe obligations and liabilities of any person with respect to the tax\nimposed by this article.\n (iii) For purposes of clause (D) of subparagraph (i) of this\nparagraph, a person shall be presumed to be regularly or systematically\ndelivering property or services in this state if the cumulative total\nnumber of occasions such person or his agent came into the state to\ndeliver property or services exceeded twelve during the preceding four\nquarterly periods ending on the last day of February, May, August and\nNovember, unless such person can demonstrate, to the satisfaction of the\ncommissioner, that he cannot reasonably be expected to come into the\nstate for such purposes on more than twelve occasions during the next\nsucceeding four quarterly periods ending on the last day of February,\nMay, August and November.\n (iv) For purposes of clause (E) of subparagraph (i) of this paragraph,\na person shall be presumed to be regularly or systematically soliciting\nbusiness in this state if, for the immediately preceding four quarterly\nperiods ending on the last day of February, May, August and November,\nthe cumulative total of such person's gross receipts from sales of\nproperty delivered in this state exceeds five hundred thousand dollars\nand such person made more than one hundred sales of property delivered\nin this state, unless such person can demonstrate, to the satisfaction\nof the commissioner, that he cannot reasonably be expected to have gross\nreceipts in excess of five hundred thousand dollars or more than one\nhundred sales of property delivered in this state for the next\nsucceeding four quarterly periods ending on the last day of February,\nMay, August and November.\n (v) Notwithstanding any other provision of law, the term vendor shall\nnot include:\n (A) a person who is not otherwise a vendor who purchases fulfillment\nservices carried on in New York by a person other than an affiliated\nperson; or\n (B) a person who is not otherwise a vendor who owns tangible personal\nproperty located on the premises of an unaffiliated person performing\nfulfillment services for such person.\n For purposes of this subparagraph, persons are affiliated persons with\nrespect to each other where one of such persons has an ownership\ninterest of more than five percent, whether direct or indirect, in the\nother, or where an ownership interest of more than five percent, whether\ndirect or indirect, is held in each of such persons by another person or\nby a group of other persons which are affiliated persons with respect to\neach other.\n (vi) For purposes of subclause (I) of clause (C) of subparagraph (i)\nof this paragraph, a person making sales of tangible personal property\nor services taxable under this article ("seller") shall be presumed to\nbe soliciting business through an independent contractor or other\nrepresentative if the seller enters into an agreement with a resident of\nthis state under which the resident, for a commission or other\nconsideration, directly or indirectly refers potential customers,\nwhether by a link on an internet website or otherwise, to the seller, if\nthe cumulative gross receipts from sales by the seller to customers in\nthe state who are referred to the seller by all residents with this type\nof an agreement with the seller is in excess of ten thousand dollars\nduring the preceding four quarterly periods ending on the last day of\nFebruary, May, August, and November. This presumption may be rebutted by\nproof that the resident with whom the seller has an agreement did not\nengage in any solicitation in the state on behalf of the seller that\nwould satisfy the nexus requirement of the United States constitution\nduring the four quarterly periods in question. Nothing in this\nsubparagraph shall be construed to narrow the scope of the terms\nindependent contractor or other representative for purposes of subclause\n(I) of clause (C) of subparagraph (i) of this paragraph.\n (9) Capital improvement. (i) An addition or alteration to real\nproperty which:\n (A) Substantially adds to the value of the real property, or\nappreciably prolongs the useful life of the real property; and\n (B) Becomes part of the real property or is permanently affixed to the\nreal property so that removal would cause material damage to the\nproperty or article itself; and\n (C) Is intended to become a permanent installation.\n (ii) A mobile home shall not constitute an addition or capital\nimprovement to real property, property or land, regardless of the nature\nof its installation.\n (iii) Notwithstanding the provisions of subparagraph (i) of this\nparagraph: (A) Floor covering, such as carpet, carpet padding, linoleum\nand vinyl roll flooring, carpet tile, linoleum tile and vinyl tile,\ninstalled as the initial finished floor covering in new construction or\na new addition to or total reconstruction of existing construction shall\nconstitute an addition or capital improvement to real property, property\nor land; and\n (B) Floor covering, such as carpet, carpet padding, linoleum and vinyl\nroll flooring, carpet tile, linoleum tile and vinyl tile, installed\nother than as described in clause (A) of this subparagraph shall not\nconstitute an addition or capital improvement to real property, property\nor land.\n (10) Mobile home. (i) A structure which is:\n (A) A type of manufactured housing; and\n (B) Not self-propelled; and\n (C) Transportable in one or more sections:\n (I) that may be folded, collapsed or telescoped when being towed and\nexpanded later to provide additional cubic capacity, or\n (II) that may be separately towable and designed to be joined into one\nintegral structure capable of being again separated into the sections\nfor repeated towing; and\n (D) Built on a permanent chassis, comprised of frame and wheels, that\nis to be connected to utilities; and\n (E) Designed to be used as a permanent dwelling, with or without\npermanent foundation; and\n (F) Used for residential or commercial purposes.\n (ii) The term "mobile home" shall also include structures commonly\ncalled "double wides".\n (iii) The term "mobile home" shall not include:\n (A) Structures designed and constructed primarily for temporary living\nquarters, recreations, camping or travel; or\n (B) Furniture, fixtures, furnishings, appliances, attachments or\nsimilar tangible personal property not incorporated as component parts\nof a mobile home at the time of manufacture.\n (11) New mobile home. A mobile home which is sold for the first time\nat retail including all components incorporated into such mobile home at\nthe time of manufacture and remaining unchanged at the time of the first\nretail sale thereof.\n (12) Promotional materials. Any advertising literature, other related\ntangible personal property (whether or not personalized by the\nrecipient's name or other information uniquely related to such person)\nand envelopes used exclusively to deliver the same. Such other related\ntangible personal property includes, but is not limited to, free gifts,\ncomplimentary maps or other items given to travel club members,\napplications, order forms and return envelopes with respect to such\nadvertising literature, annual reports, prospectuses, promotional\ndisplays and Cheshire labels but does not include invoices, statements\nand the like. Promotional materials shall also include paper or ink\nfurnished to a printer for use in providing the services of producing,\nprinting or imprinting promotional materials or in producing, printing\nor imprinting promotional materials, where such paper and ink become a\nphysical component part of the promotional materials and such printer\nsells such services or such promotional materials to the person who\nfurnished the paper and ink to such printer.\n (13) Telephone answering service. A service that consists of taking\nmessages by telephone and transmitting such messages to the purchaser of\nthe service or at the purchaser's direction, but not including such\nservice if it is merely an incidental element of a different or other\nservice purchased by the customer.\n (14) Pre-written computer software. Computer software (including\npre-written upgrades thereof) which is not software designed and\ndeveloped by the author or other creator to the specifications of a\nspecific purchaser. The combining of two or more pre-written computer\nsoftware programs or pre-written portions thereof does not cause the\ncombination to be other than pre-written computer software. Pre-written\nsoftware also includes software designed and developed by the author or\nother creator to the specifications of a specific purchaser when it is\nsold to a person other than such purchaser. Where a person modifies or\nenhances computer software of which such person is not the author or\ncreator, such person shall be deemed to be the author or creator only of\nsuch person's modifications or enhancements. Pre-written software or a\npre-written portion thereof that is modified or enhanced to any degree,\nwhere such modification or enhancement is designed and developed to the\nspecifications of a specific purchaser, remains pre-written software;\nprovided, however, that where there is a reasonable, separately stated\ncharge or an invoice or other statement of the price given to the\npurchaser for such modification or enhancement, such modification or\nenhancement shall not constitute pre-written computer software.\n (15) Clothing and footwear. (i) Clothing and footwear to be worn by\nhuman beings, but not including costumes or rented formal wear, and (ii)\nfabric, thread, yarn, buttons, snaps, hooks, zippers and like items\nwhich are used or consumed to make or repair such clothing (other than\nsuch costumes or rented formal wear) and which become a physical\ncomponent part of such clothing, but not including such items made from\npearls, precious or semi-precious stones, jewels or metals, or\nimitations thereof.\n (16) Commercial vessel. A vessel used primarily (i) to transport\npersons or property, for hire, (ii) by the purchaser of the vessel to\ntransport such person's tangible personal property in the conduct of\nsuch person's business, or (iii) for both such purposes.\n (17) Commercial aircraft. Aircraft used primarily (i) to transport\npersons or property, for hire, (ii) by the purchaser of the aircraft to\ntransport such person's tangible personal property in the conduct of\nsuch person's business, or (iii) for both such purposes. Transporting\npersons for hire does not include transporting agents, employees,\nofficers, members, partners, managers or directors of affiliated\npersons. Persons are affiliated persons with respect to each other where\none of the persons has an ownership interest of more than five percent,\nwhether direct or indirect, in the other, or where an ownership interest\nof more than five percent, whether direct or indirect, is held in each\nof the persons by another person or by a group of other persons that are\naffiliated persons with respect to each other. For an exception to the\nexclusions from the definition of "retail sale" applicable to aircraft,\nsee subdivision (q) of section eleven hundred eleven of this article.\n 18. Fulfillment services. Any of the following services performed by\nan entity on its premises on behalf of a purchaser:\n (i) the acceptance of orders electronically or by mail, telephone,\ntelefax or internet;\n (ii) responses to consumer correspondence and inquiries electronically\nor by mail, telephone, telefax or internet;\n (iii) billing and collection activities; or\n (iv) the shipment of orders from an inventory of products offered for\nsale by the purchaser.\n (19) Farming. The term "farming" includes agriculture, floriculture,\nhorticulture, aquaculture and silviculture; stock, dairy, poultry,\nfruit, fur bearing animal, graping, truck and tree farming; ranching;\noperating nurseries, greenhouses, vineyard trellises or other similar\nstructures used primarily for the raising of agricultural,\nhorticultural, vinicultural, viticultural, floricultural or\nsilvicultural commodities; operating orchards; raising, growing and\nharvesting crops, livestock and livestock products, as defined in\nsubdivision two of section three hundred one of the agriculture and\nmarkets law; and raising, growing and harvesting woodland products,\nincluding, but not limited to, timber, logs, lumber, pulpwood, posts and\nfirewood.\n (20) Commercial horse boarding operation. "Commercial horse boarding\noperation" shall have the same meaning that such term has in subdivision\nthirteen of section three hundred one of the agriculture and markets\nlaw.\n (22) (A) "Prepaid telephone calling service" means the right to\nexclusively purchase telecommunication services, that must be paid for\nin advance and enable the origination of one or more intrastate,\ninterstate or international telephone calls using an access number (such\nas a toll free network access number) and/or authorization code, whether\nmanually or electronically dialed, for which payment to a vendor must be\nmade in advance, whether or not that right is represented by the\ntransfer by the vendor to the purchaser of an item of tangible personal\nproperty. Such term, except with respect to the tax imposed by section\none hundred eighty-six-e of article nine of this chapter, includes a\nprepaid mobile calling service. In no event shall a credit card\nconstitute a prepaid telephone calling service. If the sale or recharge\nof a prepaid telephone calling service does not take place at the\nvendor's place of business, it shall be conclusively determined to take\nplace at the purchaser's shipping address or, if there is no item\nshipped, at the purchaser's billing address or the location associated\nwith the purchaser's mobile telephone number, or, if the vendor does not\nhave the address or the location associated with the customer's mobile\ntelephone number, at such address, as approved by the commissioner, that\nreasonably reflects the customer's location at the time of the sale or\nrecharge.\n (B) "Prepaid mobile calling service" means the right to use a\ncommercial mobile radio service, whether or not sold with other property\nor services, that must be paid for in advance and is sold for use over a\nspecified period of time or in predetermined units or dollars that\ndecline with use in a known amount, whether or not that right is\nrepresented by or includes the transfer to the purchaser of an item of\ntangible personal property.\n (23) Qualified empire zone enterprise. The term "qualified empire zone\nenterprise" shall have the same meaning that such term has in section\nfourteen of this chapter for purposes of this article and article\ntwenty-nine of this chapter.\n (24) "Mobile telecommunications service" shall mean commercial mobile\nradio service. "Mobile telecommunications service" does not include\nprepaid telephone calling service or air-ground radio telephone service\nas defined in section 22.99 of title 47 of the code of federal\nregulations as in effect on June first, nineteen hundred ninety-nine.\n (25) "Commercial mobile radio service" and "mobile service" shall have\nthe same meanings as in section 20.3 of title 47 of the code of federal\nregulations in effect on June first, nineteen hundred ninety-nine, to\nwit:\n (i) "Commercial mobile radio service." A mobile service that is:\n(A)(I) provided for profit, i.e., with the intent of receiving\ncompensation or monetary gain; (II) an interconnected service; and (III)\navailable to the public, or to such classes of eligible users as to be\neffectively available to a substantial portion of the public; or (B) the\nfunctional equivalent of such a mobile service described in clause (A)\nof this subparagraph.\n (ii) "Mobile service." A radio communications service carried on\nbetween mobile stations or receivers and land stations, and by mobile\nstations communicating among themselves, and includes: (A) both one-way\nand two-way radio communications services; (B) a mobile service which\nprovides a regularly interacting group of base, mobile, portable, and\nassociated control and relay stations (whether licensed on an\nindividual, cooperative, or multiple basis) for private one-way or\ntwo-way land mobile radio communications by eligible users over\ndesignated areas of operation; and (C) any service for which a license\nis required in a personal communications service under part 24 of title\n47 of the code of federal regulations in effect on June first, nineteen\nhundred ninety-nine.\n (26) "Place of primary use" shall mean the street address\nrepresentative of where a mobile telecommunications customer's use of\nthe mobile telecommunications service primarily occurs, and must be: (i)\nthe residential street address or the primary business street address of\nthe mobile telecommunications customer and (ii) within the licensed\nservice area of the home service provider.\n (27)(i) "Mobile telecommunications customer" shall mean either (A) a\nperson or entity that contracts with a home service provider for mobile\ntelecommunications services; or (B) if the end user of mobile\ntelecommunications services is not the contracting party, the end user\nof the mobile telecommunications service, but this clause (B) applies\nonly for the purpose of determining the place of primary use. "Mobile\ntelecommunications customer" does not include either (A) a reseller of\nmobile telecommunications service; or (B) a serving carrier under an\narrangement to serve a mobile telecommunications customer outside the\nhome service provider's licensed service area.\n (ii) "Home service provider" shall mean a facilities-based carrier or\nreseller as defined in subparagraph (iv) of this paragraph, with which\nthe mobile telecommunications customer contracts for the provision of\nmobile telecommunications service.\n (iii) "Licensed service area" shall mean the geographic area in which\na home service provider is authorized by law or contract to provide\nmobile telecommunications service to a mobile telecommunications\ncustomer.\n (iv) "Reseller" shall mean a provider who purchases telecommunications\nservice from another telecommunications service provider and then\nresells, uses as a component part of, or integrates the purchased\nservices into a mobile telecommunications service. "Reseller" does not\ninclude a serving carrier with which a home service provider arranges\nfor the services to its mobile telecommunications customers outside the\nhome service provider's licensed service area.\n (v) "Serving carrier" shall mean a facilities-based carrier providing\nmobile telecommunications service to a mobile telecommunications\ncustomer outside the home service provider's or reseller's licensed\nservice area.\n (28) "Taxing jurisdiction" shall mean any of the several states, the\nDistrict of Columbia, or any territory or possession of the United\nStates, any municipality, city, county, township, parish, transportation\ndistrict, or assessment jurisdiction, or any other political subdivision\nwithin the territorial limits of the United States with the authority to\nimpose a tax, charge, or fee.\n * (29) "E85" shall have the same meaning as in subdivision twenty-two\nof section two hundred eighty-two of this chapter.\n * NB Repealed September 1, 2026\n * (30) "B20" shall have the same meaning as in subdivision\ntwenty-three of section two hundred eighty-two of this chapter.\n * NB Repealed September 1, 2026\n * (31) "CNG" shall have the same meaning as in subdivision twenty-four\nof section two hundred eighty-two of this chapter.\n * NB Repealed September 1, 2026\n * (32) "Hydrogen" shall have the same meaning as in subdivision\ntwenty-five of section two hundred eighty-two of this chapter.\n * NB Repealed September 1, 2026\n (33) Modular home. A one- to three-family residential structure\nconstructed at the building site from modular home modules, where the\nmodules are connected and such structure is finished using building\nmaterials or other tangible personal property at the building site, such\nmodular home conforms to the building and other codes applicable to one-\nto three-family site-built homes in the jurisdiction where such building\nsite is located, and such finished modular home constitutes a capital\nimprovement. "Modular home" shall not include (i) a structure or portion\nof a structure built on-site, whether built by the modular home\ninstaller or another person, using building materials delivered to the\nsite, even if some of such materials were manufactured, produced, or\nassembled off-site, such as, by way of example and not by way of\nlimitation, concrete blocks, windows, door units, wall or roof panels,\ntrusses and dormers; (ii) a shed, gazebo, any unattached garage or the\nlike (even if made or built by a manufacturer of modular home modules);\nor (iii) a mobile home.\n (34) Transportation service. The service of transporting, carrying or\nconveying a person or persons by livery service; whether to a single\ndestination or to multiple destinations; and whether the compensation\npaid by or on behalf of the passenger is based on mileage, trip, time\nconsumed or any other basis. A service that begins and ends in this\nstate is deemed intra-state even if it passes outside this state during\na portion of the trip. However, transportation service does not include\ntransportation of persons in connection with funerals. Transportation\nservice includes transporting, carrying, or conveying property of the\nperson being transported, whether owned by or in the care of such\nperson. Notwithstanding the foregoing, transportation service shall not\ninclude a TNC prearranged trip, as that term is defined in article\nforty-four-B of the vehicle and traffic law, that is subject to tax\nunder article twenty-nine-B of this chapter. In addition to what is\nincluded in the definition of "receipt" in paragraph three of this\nsubdivision, receipts from the sale of transportation service subject to\ntax include any handling, carrying, baggage, booking service,\nadministrative, mark-up, additional, or other charge, of any nature,\nmade in conjunction with the transportation service. Livery service\nmeans service provided by limousine, black car or other motor vehicle,\nwith a driver, but excluding (i) a taxicab, (ii) a bus, and (iii), in a\ncity of one million or more in this state, an affiliated livery vehicle,\nand excluding any scheduled public service. Limousine means any vehicle\nwith a seating capacity of up to fourteen persons, excluding the driver,\nand any vehicle with a seating capacity of between fifteen and twenty\npersons, excluding the driver, that has only two axles and four tires.\n"Bus" means any motor vehicle with a seating capacity of at least\nfifteen persons, excluding the driver, that does not otherwise qualify\nas a limousine. Black car means a for-hire vehicle dispatched from a\ncentral facility. "Affiliated livery vehicle" means a for-hire motor\nvehicle with a seating capacity of up to six persons, including the\ndriver, other than a black car or luxury limousine, that is authorized\nand licensed by the taxi and limousine commission of a city of one\nmillion or more to be dispatched by a base station located in such a\ncity and regulated by such taxi and limousine commission; and the\ncharges for service provided by an affiliated livery vehicle are on the\nbasis of flat rate, time, mileage, or zones and not on a garage to\ngarage basis.\n (35) Modular home modules. The component sections that will be\ninstalled on-site to construct a modular home, each of which sections is\n(i) engineered and manufactured in a factory, (ii) shipped or delivered\nto the building site on a truck or other vehicle, (iii) installed at the\nsite, on a permanent foundation, to become part of the modular home and\n(iv) not by itself suitable for occupancy. Every group of modules that\nwill be installed in this state as a modular home, or, if a modular home\nis to be built from a single module, that single module, shall, prior to\nshipment from the place where it is made, bear the insignia of approval\nissued by the department of state pursuant to the authority of article\neighteen of the executive law and regulations thereunder; and the\ndepartment of state shall cooperate with the commissioner and furnish\nsuch information as the commissioner requests to carry out this article\nand its purposes. A modular home module shall include tangible personal\nproperty shipped or delivered with the module from the factory by the\nmanufacturer at the same time the module is shipped or delivered, such\nas exterior siding, roof shingles, roof vent pipes, interior trim\npieces, paint, and interior doors, and supplies required and used to\ninstall them, but only if that property (i) was engineered or designed\nto be an integral component part of the module, (ii) matches, or is\nessential to the functioning of, the module, (iii) was not installed in\nthe module at the time the module was made only because it would be\ndamaged during, or interfere with, shipping or delivery of the module to\nthe building site, (iv) will be permanently installed in the module at\nthe building site by the manufacturer or by the purchaser of the module\nor by the contractor of either of them, (v) is listed in full on the\ncontract, bill of sale, invoice or other memorandum of price given to\nthe purchaser or buyer, or in an addendum thereto, true copies of which\nthe manufacturer shall retain as part of the records required to be kept\nby this article and make available on request, and (vi) is included in\nthe sale price of the module, without any additional charge. A modular\nhome module shall not include (i) furniture, fixtures, furnishings,\nappliances, attachments or similar tangible personal property not\nincorporated as component parts of the module at the time of its\nmanufacture or (ii) building materials or other tangible personal\nproperty used to connect the modules or finish the modular home at the\nbuilding site.\n (36) New modular home module. A modular home module sold for the first\ntime at retail.\n (37) Electronic news service. (i) A service delivered, furnished or\nprovided to or accessed by the purchaser electronically or digitally\nthat meets all of the following conditions:\n (A) The service's predominant purpose is the presentation of news\ncontent, which it prominently features;\n (B) The service's news content (I) includes general news that is\naccessible without use of a search function; (II) is newly published or\nupdated at least daily unless the service specifies some other interval,\nprovided, however, that the news content must be newly updated or\npublished within a twenty-four hour period that precedes or immediately\nfollows a time when the non-news content is newly published or updated;\nand (III) is predominantly purchased from contracted wire services or\nwritten or produced by the employees or engaged independent contractors\nof the person providing the service, including, but not limited to,\nemployees or engaged independent contractors of any affiliate of such\nperson;\n (C) The service is available to the public;\n (D) The service holds itself out as a "news service," "newspaper,"\n"magazine," "periodical," "journal," "post," or words of similar import\nand does not hold itself out as something other than one of such terms\nor a term of similar import.\n (E) The service has continuity as to its title and the general nature\nof its content over time;\n (F) The service is not, in whole or in substantial part, a listing,\ncatalog, database, or compilation;\n (G) The only search function the service offers without a\nseparately-stated, reasonable charge is a search of the service's or of\nany of its affiliates' present or past news content. Provided, a service\nthat satisfies all the clauses of this subparagraph except this clause\nmay still qualify as an electronic news service for purposes of this\nparagraph if the provider of the service can show that the non-news\ncontent available through the search function is merely an incidental\npart of the service, including, for example, by showing that the cost to\nthe person providing the service of any non-news content available\nthrough the search function is less than the cost to that person of\nproviding the news content available through the service. Provided,\nfurther, that a purchaser's access to the service's search function for\nwhich there is a separately-stated, reasonable charge to the purchaser\nshall be treated separately and is not relevant as to whether this\nclause is satisfied.\n (ii) The following definitions apply to subparagraph (i) of this\nparagraph and subdivision (gg) of section eleven hundred fifteen of this\narticle:\n (A) "News content" means the articles, photographs, and video and\naudio material concerning general news or specialized news and does not\ninclude listings, advertisements, catalogs, compilations, databases, or\nthe like.\n (B) "Non-news content" means any information other than news content.\n (C) "Article" means a prose composition, including commentaries,\nreviews, editorials, op-eds, letters to the editor, and reader comments\non articles. The term does not include listings, advertisements,\ncatalogs, compilations, databases, or the like.\n (D) "General news" means matters of general interest and reports of\ncurrent events.\n (E) "Specialized news" means matters of a specialized interest, such\nas legal, mercantile, financial, theatrical, entertainment news,\npolitical, religious, or sporting matters.\n (F) "Cap amount" means three hundred percent of the annualized average\ndaily newsstand price of the three newspapers with the largest total\npaid national daily circulation. The commissioner shall determine the\ncap amount annually and shall cause it to be published on the\ndepartment's website and give other appropriate general notice thereof.\nThe commissioner shall determine and publish the cap amount annually by\nApril first based on prices charged during the first week of January of\nthat year, which cap amount shall apply for the succeeding twelve-month\nperiod commencing June first and ending May thirty-first. The\ncalculation and publication of the cap amount under this clause shall\nnot be included within paragraph (a) of subdivision two of section one\nhundred two of the state administrative procedure act relating to the\ndefinition of a rule.\n (G) "Affiliate" means, with respect to any person, any other person\nthat, directly or indirectly through one or more intermediaries,\ncontrols, or is controlled by, or is under common control with, such\nperson, and the term "control" (including the terms "controlled by" and\n"under common control with") means the possession, directly or\nindirectly, of the power to direct or cause the direction of the\nmanagement and policies of such person, whether through ownership of\nvoting securities, by contract or otherwise.\n (38) Electronic periodical. (i) A publication delivered, furnished or\nprovided to or accessed by the purchaser electronically or digitally\nthat meets all of the following conditions:\n (A) The publication's predominant purpose is the presentation of news\ncontent, which it prominently features;\n (B) The publication is published at stated intervals, at least as\nfrequently as four times a year but no more frequently than weekly, and\nis not updated between issues. However, the incidental provision of\nadditional news content between issues will not prevent the requirement\nin this clause from being satisfied. In determining whether the news\ncontent added between issues is incidental, among the factors the\ncommissioner is to consider is the amount of the news content added\nbetween issues relative to the news content in preceding issues and the\nfrequency of the provision of additional news content between issues.\nProvided that the display of reader comments or letters to the editor\nbetween issues does not affect whether this clause is satisfied.\n (C) The publication's news content is purchased from contracted wire\nservices or written or produced by multiple employees or engaged\nindependent contractors of the person providing the publication,\nincluding, but not limited to, employees or engaged independent\ncontractors of any affiliate of such person;\n (D) The publication is available to the public;\n (E) The publication holds itself out as a "magazine," "periodical" or\nwords of similar import and does not hold itself out as something other\nthan a "magazine," "periodical," or words of similar import;\n (F) The publication has continuity as to its title and the general\nnature of its content over time;\n (G) The publication is not, in whole or in substantial part, a\nlisting, catalog, database, or compilation; and\n (H) The only search function the publication offers without a\nseparately-stated, reasonable charge is a search of the publication's or\nof an affiliate's present or past news content. However: (I) the\npublication's provision of access, at no additional charge, to a search\nengine that, apart from the service, is otherwise available to the\npublic for free is not relevant as to whether this clause is satisfied;\nand (II) the publication's provision of access to a search function for\nwhich there is a separately-stated, reasonable charge to the purchaser\nshall be treated separately and is not relevant as to whether this\nclause is satisfied.\n (ii) For purposes of subparagraph (i) of this paragraph and the\nexemption provided for electronic periodicals in subdivision (gg) of\nsection eleven hundred fifteen of this article, "articles" has the same\nmeaning as in subparagraph (ii) of paragraph thirty-seven of subdivision\n(b) of this section and "news content" means articles, photographs, and\nvideo and audio material devoted to literature, the sciences, the arts,\nnews, an industry, profession, sport or other field of endeavor, and\ndoes not include listings, advertisements, catalogs, compilations,\ndatabases, or the like.\n (c) When used in this article for the purposes of the tax imposed\nunder subdivision (e) of section eleven hundred five of this article,\nthe following terms shall mean:\n (1) Hotel. A building or portion of it which is regularly used and\nkept open as such for the lodging of guests. The term "hotel" includes\nan apartment hotel, a motel, boarding house or club, whether or not\nmeals are served.\n (2) Occupancy. The use or possession, or the right to the use or\npossession, of any room in a hotel or short term rental unit. "Right to\nthe use or possession" includes the rights of a room remarketer as\ndescribed in paragraph eight of this subdivision.\n (3) Occupant. A person who, for a consideration, uses, possesses, or\nhas the right to use or possess, any room in a hotel or short term\nrental unit under any lease, concession, permit, right of access,\nlicense to use or other agreement, or otherwise. "Right to use or\npossess" includes the rights of a room remarketer as described in\nparagraph eight of this subdivision.\n (4) Operator. Any person operating a hotel or short term rental unit.\nSuch term shall include a room remarketer and such room remarketer shall\nbe deemed to operate a hotel, or portion thereof, with respect to which\nsuch person has the rights of a room remarketer.\n (5) Permanent resident. Any occupant of any room or rooms in a hotel\nor short term rental unit for at least ninety consecutive days shall be\nconsidered a permanent resident with regard to the period of such\noccupancy.\n (6) Rent. The consideration received for occupancy, including any\nservice or other charge or amount required to be paid as a condition for\noccupancy, valued in money, whether received in money or otherwise and\nwhether received or collected by the booking service, operator or a room\nremarketer or another person on behalf of any of them.\n (7) Room. Any room or rooms of any kind in any part or portion of a\nhotel or short term rental unit, which is available for or let out for\nany purpose other than a place of assembly.\n (8) Room remarketer. A person who reserves, arranges for, conveys, or\nfurnishes occupancy, whether directly or indirectly, to an occupant for\nrent in a hotel for an amount determined by the room remarketer,\ndirectly or indirectly, whether pursuant to a written or other\nagreement. Such person's ability or authority to reserve, arrange for,\nconvey, or furnish occupancy, directly or indirectly, and to determine\nrent therefor, shall be the "rights of a room remarketer". A room\nremarketer is not a permanent resident with respect to a room for which\nsuch person has the rights of a room remarketer.\n (9) Short term rental unit. A building or portion of it that is used\nfor the lodging of guests. The term "short term rental unit" includes a\nhouse, an apartment, a condominium, a cooperative unit, a cabin, a\ncottage, a bungalow, or a similar furnished living unit, or one or more\nrooms therein, where sleeping accommodations are provided for the\nlodging of paying occupants, the typical occupants are transients or\ntravelers, and the relationship between the operator and occupant is not\nthat of a landlord and tenant, provided that, in a city with a\npopulation of a million or more, the term "short term rental unit" shall\nalso include any building or portion of a building that is a short-term\nrental, as such term is defined in section 26-3101 of chapter thirty-one\nof title twenty-six of the administrative code of the city of New York.\nIt is not necessary that meals are served. A building or portion of a\nbuilding may qualify as a short term rental unit whether or not\namenities, including but not limited to daily housekeeping services,\nconcierge services, or linen services, are provided.\n (10) (i) Booking service. A person who, pursuant to an agreement with\nan operator or operators, facilitates the occupancy of a short term\nrental unit for such operator or operators. A person "facilitates the\noccupancy of a short term rental unit" for purposes of this paragraph\nwhen the person meets both of the following conditions: (A) such person\nprovides the forum in which, or by means of which, the sale of the\noccupancy takes place or the offer of such sale is accepted, including a\nshop, store, or booth, an internet website, mobile device application,\ncatalog, or similar forum; and (B) such person or an affiliate of such\nperson collects the rent paid by a customer to an operator for the\noccupancy of a short term rental unit, or contracts with a third party\nto collect such rent.\n (ii) For the purposes of this article, the term "booking service"\nshall not include a "room remarketer" as defined in paragraph eight of\nthis subdivision. For purposes of this paragraph, persons are affiliated\nif one person has an ownership interest of more than five percent,\nwhether direct or indirect, in another, or where an ownership interest\nof more than five percent, whether direct or indirect, is held in each\nof such persons by another person or by a group of other persons that\nare affiliated persons with respect to each other.\n (d) When used in this article for purposes of the tax imposed under\nsubdivision (f) of section eleven hundred five, the following terms\nshall mean:\n (1) Active annual member. A member who is not a life member but who\nenjoys full club privileges as distinguished from the privileges enjoyed\nby a person holding a nonresident membership, an associate membership,\nor other partial or restricted membership.\n (2) Admission charge. The amount paid for admission, including any\nservice charge and any charge for entertainment or amusement or for the\nuse of facilities therefor.\n (3) Amusement charge. Any admission charge, dues or charge of roof\ngarden, cabaret or other similar place.\n (4) Charge of a roof garden, cabaret or other similar place. Any\ncharge made for admission, refreshment, service, or merchandise at a\nroof garden, cabaret or other similar place.\n (5) Dramatic or musical arts admission charge. Any admission charge\npaid for admission to a theatre, opera house, concert hall or other hall\nor place of assembly for a live dramatic, choreographic or musical\nperformance.\n (6) Dues. Any dues or membership fee including any assessment,\nirrespective of the purpose for which made, and any charges for social\nor sports privileges or facilities, except charges for sports privileges\nor facilities offered to members' guests which would otherwise be exempt\nif paid directly by such guests.\n (7) Initiation fee. Any payment, contribution, or loan, required as a\ncondition precedent to membership, whether or not such payment,\ncontribution or loan is evidenced by a certificate of interest or\nindebtedness or share of stock, and irrespective of the person or\norganization to whom paid, contributed or loaned.\n (8) Lessor. Any person who is the owner, licensee or lessee of any\nplace of amusement or roof garden, cabaret or other similar place which\nhe leases, subleases or grants a license to use to other persons who\nmake amusement charges or admission charges.\n (9) Patron. Any person who pays an amusement charge or who is\notherwise required to pay the tax imposed under such subdivision (f) of\nsection eleven hundred five.\n (10) Place of amusement. Any place where any facilities for\nentertainment, amusement, or sports are provided.\n (11) Recipient. Any person who collects or receives or is under a duty\nto collect an amusement charge.\n (12) Roof garden, cabaret or other similar place. Any roof garden,\ncabaret or other similar place which furnishes a public performance for\nprofit, but not including a place where merely live dramatic or musical\narts performances are offered in conjunction with the serving or selling\nof food, refreshment or merchandise, so long as such serving or selling\nof food, refreshment or merchandise is merely incidental to such\nperformances.\n (13) Social or athletic club. Any club or organization of which a\nmaterial purpose or activity is social or athletic.\n (14) Honorary member. A membership granted in a social or athletic\nclub without payment of dues which may provide full or partial club\nprivileges.\n (e) When used in this article for the purposes of the taxes imposed\nunder subdivision (a) of section eleven hundred five of this article and\nby section eleven hundred ten of this article, the following terms shall\nmean:\n (1) Marketplace provider. A person who, pursuant to an agreement with\na marketplace seller, facilitates sales of tangible personal property by\nsuch marketplace seller or sellers. A person "facilitates a sale of\ntangible personal property" for purposes of this paragraph when the\nperson meets both of the following conditions: (A) such person provides\nthe forum in which, or by means of which, the sale takes place or the\noffer of sale is accepted, including a shop, store, or booth, an\ninternet website, catalog, or similar forum; and (B) such person or an\naffiliate of such person collects the receipts paid by a customer to a\nmarketplace seller for a sale of tangible personal property, or\ncontracts with a third party to collect such receipts. For purposes of\nthis paragraph, a "sale of tangible personal property" shall not include\nthe rental of a passenger car as described in section eleven hundred\nsixty of this chapter but shall include a lease described in subdivision\n(i) of section eleven hundred eleven of this article and peer-to-peer\ncar sharing as described in section nine hundred of the general business\nlaw. For purposes of this paragraph, persons are affiliated if one\nperson has an ownership interest of more than five percent, whether\ndirect or indirect, in another, or where an ownership interest of more\nthan five percent, whether direct or indirect, is held in each of such\npersons by another person or by a group of other persons that are\naffiliated persons with respect to each other. Notwithstanding anything\nin this paragraph, a person who is not otherwise registered pursuant to\nsection eleven hundred thirty-four of this article is not a marketplace\nprovider if such person has no physical presence in New York and, for\nthe immediately preceding four quarterly periods ending on the last day\nof February, May, August and November, can show that the cumulative\ntotal gross receipts of sales it has made or facilitated of property\ndelivered in this state does not exceed five hundred thousand dollars or\nthat such person has not made or facilitated more than one hundred sales\nof property delivered in this state. However, such person may elect to\nregister as a marketplace provider, and, once registered, will be\nsubject to the provisions of this article.\n (2) Marketplace seller. Any person, whether or not such person is\nrequired to obtain a certificate of authority under section eleven\nhundred thirty-four of this article, who has an agreement with a\nmarketplace provider under which the marketplace provider will\nfacilitate sales of tangible personal property by such person within the\nmeaning of paragraph one of this subdivision.\n