N.Y. Tax Law § 1110 — Imposition of compensating use tax

§ 1110. Imposition of compensating use tax. (a) Except to the extent\nthat property or services have already been or will be subject to the\nsales tax under this article, there is hereby imposed on every person a\nuse tax for the use within this state on and after June first, nineteen\nhundred seventy-one except as otherwise exempted under this article, (A)\nof any tangible personal property purchased at retail, (B) of any\ntangible personal property (other than computer software used by the\nauthor or other creator) manufactured, processed or assembled by the\nuser, (i) if items of the same kind of tangible personal property are\noffered for sale by him in the regular course of business or (ii) if\nitems are used as such or incorporated into a structure, building or\nreal property by a contractor, subcontractor or repairman in erecting\nstructures or buildings, or building on, or otherwise adding to,\naltering, improving, maintaining, servicing or repairing real property,\nproperty or land, as the terms real property, property or land are\ndefined in the real property tax law, if items of the same kind are not\noffered for sale as such by such contractor, subcontractor or repairman\nor other user in the regular course of business, (C) of any of the\nservices described in paragraphs (1), (7) and (8) of subdivision (c) of\nsection eleven hundred five of this part, (D) of any tangible personal\nproperty, however acquired, where not acquired for purposes of resale,\nupon which any of the services described in paragraphs (2), (3) and (7)\nof subdivision (c) of section eleven hundred five of this part have been\nperformed, (E) of any telephone answering service described in\nsubdivision (b) of section eleven hundred five of this part, (F) of any\ncomputer software written or otherwise created by the user if the user\noffers software of a similar kind for sale as such or as a component\npart of other property in the regular course of business, (G) of any\nprepaid telephone calling service, and (H) of any gas or electricity\ndescribed in subdivision (b) of section eleven hundred five of this\npart.\n (b) For purposes of clause (A) of subdivision (a) of this section, the\ntax shall be at the rate of four percent of the consideration given or\ncontracted to be given for such property, or for the use of such\nproperty, including any charges for shipping or delivery as described in\nparagraph three of subdivision (b) of section eleven hundred one, but\nexcluding any credit for tangible personal property accepted in part\npayment and intended for resale.\n (c) For purposes of subclause (i) of clause (B) of subdivision (a) of\nthis section, the tax shall be at the rate of four percent of the price\nat which items of the same kind of tangible personal property are\noffered for sale by the user, and the mere storage, keeping, retention\nor withdrawal from storage of tangible personal property by the person\nwho manufactured, processed or assembled such property shall not be\ndeemed a taxable use by him; provided, however, that if the user uses\nsuch an item itself on its own premises (not including making a gift of\nsuch tangible personal property), solely in the conduct of the user's\nown business operations, and the item retains its characteristic as\ntangible personal property when so used, the tax shall be at the rate,\nand on the consideration, described in subdivision (d) of this section.\n (d) For purposes of subclause (ii) of clause (B) of subdivision (a) of\nthis section, the tax shall be at the rate of four percent of the\nconsideration given or contracted to be given for the tangible personal\nproperty manufactured, processed or assembled into the tangible personal\nproperty the use of which is subject to tax, including any charges for\nshipping or delivery as described in paragraph three of subdivision (b)\nof section eleven hundred one.\n (e) Notwithstanding the foregoing, provisions of this section, for\npurposes of clause (B) of subdivision (a) of this section, there shall\nbe no tax on any portion of such price which represents the value added\nby the user to tangible personal property which he fabricates and\ninstalls to the specifications of an addition or capital improvement to\nreal property, property or land, as the terms real property, property or\nland are defined in the real property tax law, over and above the\nprevailing normal purchase price prior to such fabrication of such\ntangible personal property which a manufacturer, producer or assembler\nwould charge an unrelated contractor who similarly fabricated and\ninstalled such tangible personal property to the specifications of an\naddition or capital improvement to such real property, property or land.\n (f) For purposes of clauses (C), (D), and (E) of subdivision (a) of\nthis section, the tax shall be at the rate of four percent of the\nconsideration given or contracted to be given for the service, including\nthe consideration for any tangible personal property transferred in\nconjunction with the performance of the service and also including any\ncharges for shipping and delivery of the property so transferred and of\nthe tangible personal property upon which the service was performed as\nsuch charges are described in paragraph three of subdivision (b) of\nsection eleven hundred one.\n (g) For purposes of clause (F) of subdivision (a) of this section, the\ntax shall be at the rate of four percent of the consideration given or\ncontracted to be given for the tangible personal property which\nconstitutes the blank medium, such as disks or tapes, used in\nconjunction with the software, or for the use of such property, and the\nmere storage, keeping, retention or withdrawal from storage of computer\nsoftware described in such clause (F) by its author or other creator\nshall not be deemed a taxable use by such person.\n (h) For purposes of clause (G) of subdivision (a) of this section, the\ntax shall be at the rate of four percent of the consideration given or\ncontracted to be given for the service, including the consideration for\nany tangible personal property transferred in conjunction with the\nservice and also including any charges for shipping and delivery of the\nproperty so transferred as such charges are described in paragraph three\nof subdivision (b) of section eleven hundred one; provided that, if the\nuser offers like services for sale in the regular course of business,\nthe tax shall be at the rate of four percent of the price at which the\nuser offers such like services for sale.\n (i) For purposes of clause (H) of subdivision (a) of this section, the\ntax shall be at the rate of four percent of the consideration given or\ncontracted to be given for, or for the use of, the gas or electricity,\nincluding the consideration for any tangible personal property\ntransferred in conjunction with the performance thereof, and including\nany charges described in paragraph three of subdivision (b) of section\neleven hundred one of this article.\n