N.Y. Tax Law § 1111 — Special rules for computing receipts and consideration

§ 1111. Special rules for computing receipts and consideration. (a)\nThe retail sales tax imposed under subdivision (a) of section eleven\nhundred five of this part and the compensating use tax imposed under\nsection eleven hundred ten of this part, when computed in respect to\ntangible personal property wherever manufactured, processed or assembled\nand used by such manufacturer, processor or assembler in the regular\ncourse of business within this state, shall be based on the price at\nwhich items of the same kind of tangible personal property are offered\nfor sale by him, except to the extent otherwise provided in this section\nor section eleven hundred ten of this part.\n (b) Tangible personal property, which has been purchased by a resident\nof New York state outside of this state for use outside of this state\nand subsequently becomes subject to the compensating use tax imposed\nunder this article, shall be taxed on the basis of the purchase price of\nsuch property, provided, however:\n (1) That where a taxpayer affirmatively shows that the property was\nused outside such state by him for more than six months prior to its use\nwithin this state, such property shall be taxed on the basis of current\nmarket value of the property at the time of its first use within this\nstate. The value of such property, for compensating use tax purposes,\nmay not exceed its cost.\n (2) That the compensating use tax on such tangible personal property\nbrought into this state (other than for complete consumption or for\nincorporation into real property located in this state) and used in the\nperformance of a contract or sub-contract within this state by a\npurchaser or user for a period of less than six months may be based, at\nthe option of the taxpayer, on the fair rental value of such property\nfor the period of use within this state.\n (c) For the amount and timing of tax in respect to property leased, or\nsold under a contract deferring payments, see section eleven hundred\nthirty-two. For the amount and timing of tax in respect to certain\nleased property, see subdivision (i) of this section.\n (d) The commissioner is authorized and empowered to prescribe and,\nfrom time to time, to amend schedules of the amount of tax to be\ncollected upon each gallon of motor fuel and diesel motor fuel sold at\nretail and upon each gallon of such fuel subject to the tax required to\nbe prepaid pursuant to section eleven hundred two of this article or\nupon each package of cigarettes sold at retail and upon each package of\ncigarettes subject to the tax required to be prepaid under section\neleven hundred three of this article, as the commissioner shall\ndetermine is approximately equal to the average rate otherwise\napplicable, considering the regional average retail sales prices of such\nfuel, the amount of the prepaid tax per package of cigarettes in\naccordance with subdivision (j) of this section and, in the case of a\nsale at retail, the ordinary price ranges for such fuel and cigarettes,\nin lieu of the regular schedule based on total receipts. Such rates\nshall be uniform in each county but may vary as between counties,\ndepending on the general price ranges in effect in each county, but\ncounties wholly within a city shall have a uniform rate. If a political\nsubdivision of a county imposes a retail sales and use tax, separate\nrates may be prescribed for it. Such schedules with reference to the tax\nrequired to be prepaid on motor fuel and diesel motor fuel pursuant to\nsection eleven hundred two of this article or the tax required to be\nprepaid on cigarettes under section eleven hundred three of this article\nmay fix the rate per gallon or per package of cigarettes in multiples of\none-tenth of one cent, depending, in the case of such fuel, on the\nregional average retail sales prices where such fuel is, as the case may\nbe, imported, manufactured, sold or used. Such schedules with reference\nto such fuel or cigarettes sold at retail may fix the rate per gallon or\nper package, as the case may be, in multiples of one-tenth of one cent\ndepending on the price at which such fuel or cigarettes are sold. Where\nschedules fixing the rate per gallon in multiples of one-tenth of one\ncent have been promulgated, the price shown on any metered pump or other\ndispensing device from which such fuel is sold to a purchaser of such\nfuel, to be delivered directly to a vehicle propelled by any power other\nthan muscular, shall include the tax at the rate so fixed, and the\ncommissioner may by regulation prescribe the manner in which the amount\nof tax shall be shown for the information of customers by signs or\nplacards on the premises where such fuel is sold. When determining tax\nrequired to be collected on the retail sale of motor fuel or diesel\nmotor fuel or cigarettes, the receipts on which tax is computed shall\nnot include the amount of tax required to be prepaid pursuant to section\neleven hundred two of this article with respect to such fuel or pursuant\nto section eleven hundred three of this article with respect to such\ncigarettes.\n (e) (1) There are hereby created and established within the state\nthree regions for purposes of the payment of the tax imposed by section\neleven hundred two of this article. (i) the first region shall consist\nof the localities included in the metropolitan commuter transportation\ndistrict created and established pursuant to section twelve hundred\nsixty-two of the public authorities law, excluding all localities\nincluded in the counties of Nassau and Suffolk. (ii) The second region\nshall consist of the localities included in the counties of Nassau and\nSuffolk. (iii) The third region shall consist of the area of the state\noutside the regions referred to in subparagraphs (i) and (ii) of this\nparagraph.\n (2) (i) Where the motor fuel is imported, manufactured or sold in, or\ndiesel motor fuel is sold or used in the region referred to in\nsubparagraph (i) of paragraph one of this subdivision, the tax required\nto be prepaid pursuant to section eleven hundred two of this article on\neach gallon of such fuel shall be sixteen cents.\n (ii) Where motor fuel is imported, manufactured or sold in, or diesel\nmotor fuel is sold or used in the region referred to in subparagraph\n(ii) of paragraph one of this subdivision, the tax required to be\nprepaid pursuant to section eleven hundred two of this article on each\ngallon of such fuel shall be sixteen cents.\n (iii) Where motor fuel is imported, manufactured or sold in, or diesel\nmotor fuel is sold or used in the region referred to in subparagraph\n(iii) of paragraph one of this subdivision, the tax required to be\nprepaid pursuant to section eleven hundred two of this article on each\ngallon of such fuel shall be fifteen cents.\n (3) When a wholesaler of motor fuel sells motor fuel in a region, as\ndefined in paragraph one of this subdivision, different from the region\nin which such motor fuel was purchased:\n (i) if the region in which it sells the motor fuel has a higher\nprepaid rate as set forth in this subdivision than the region in which\nthe wholesaler purchased the motor fuel in, the wholesaler shall pay to\nthe department the difference in the rates for the gallonage sold.\n (ii) if the region in which it sells the motor fuel has a lower\nprepaid rate as set forth in this subdivision than the region in which\nthe wholesaler purchased the motor fuel, the wholesaler shall be\nentitled to a credit or refund for the difference in the rates for the\ngallonage sold.\n (4) The commissioner is authorized to adjust the rates in paragraph\ntwo of this subdivision and shall prescribe a schedule of such rates for\neach region described in paragraph one of this subdivision as provided\nin this paragraph.\n (i) The schedule required by this paragraph shall be reviewed\nsemiannually during the months of April and October of each year,\nbeginning in October, two thousand seventeen. The commissioner shall\ndetermine a tentative rate of tax that would be required to be prepaid\npursuant to section eleven hundred two of this article on each gallon of\nmotor fuel or diesel motor fuel sold or used by multiplying the regional\naverage retail sales prices for such fuel for each region described in\nparagraph one of this subdivision by a number that is seventy-five\npercent of the average local sales tax rate in each such region and\nadding to the product thereof the taxes imposed by paragraphs one and\ntwo of subdivision (m) of this section. The regional average retail\nsales price shall be determined for purposes of this subdivision using\ndata regarding sales prices, which shall include, but not be limited to,\nsales prices as compiled by government or industry surveys and sources,\ntaking into consideration with respect to motor fuel, the volumes and\nprices of unleaded motor fuels, including reformulated or like motor\nfuels, sold in this state and with respect to both motor fuel and diesel\nmotor fuel, the volume and prices of such fuels sold at full service and\nself-service pumps for such fuels, during an immediately preceding\nperiod of up to twelve months ending the last day of March in the case\nof the April semiannual review and ending the last day of September in\nthe case of the October semiannual review; provided, however, that the\nregional average retail sales prices for both motor fuel and diesel\nmotor fuel shall represent the retail sales prices upon which the tax\nunder this article and pursuant to the authority of article twenty-nine\nof this chapter is computed (including all federal and state and any\nlocal taxes included in such price) for such period.\n (ii) If upon such review, it is determined that the tentative rate of\ntax that would be required to be prepaid for motor fuel or diesel motor\nfuel in any of the regions described in paragraph one of this\nsubdivision would increase or decrease the rate for such region then in\neffect by two or more cents per gallon, the commissioner shall adjust\nsuch rate to be equal to the tentative rate, which shall take effect on\nthe first day of June or the first day of December, respectively.\nProvided, however, the commissioner shall set the rate of tax required\nto be prepaid in the region described in subparagraph (ii) of paragraph\none of this subdivision equal to the rate set forth in subparagraph (i)\nof such paragraph, unless the regional average retail sales price in the\nmetropolitan commuter transportation district exceeds four dollars per\ngallon. In such event, the commissioner is authorized to establish a\nseparate rate in the region described in such subparagraph (ii) and\nshall compute such rate by multiplying the regional average retail sales\nprices for motor fuel and diesel motor fuel in such region by a number\nthat is eighty-five percent of the average local sales tax rate in such\nregion and adding to the product thereof the taxes imposed by paragraphs\none and two of subdivision (m) of this section.\n (iii) The commissioner shall cause to be published on the department's\nwebsite the schedule of rates and the regional average retail sales\nprices of motor fuel and diesel motor fuel fixed by this section, no\nlater than ten days prior to the effective date of such rates.\nNotwithstanding any other provision of law, the calculation and\npublication of the rates so fixed by the provisions of this section\nshall not be included within paragraph (a) of subdivision two of section\none hundred two of the state administrative procedure act relating to\nthe definition of a rule.\n (5) Where a new rate of tax required to be prepaid for motor fuel or\ndiesel motor fuel is determined by the commissioner, (i) if such new\nrate is less than the rate then in effect, on the date the rate becomes\neffective (A) a registered distributor shall be entitled to a credit in\nan amount equal to the difference between the amount of the prepaid tax\npaid or incurred by him or her with respect to motor fuel which he or\nshe imported and which he or she has in inventory at the time such new\nrate becomes effective and the amount of tax which would be due on such\ninventory if the prepaid tax were calculated based on such new average\nprice for the region in which such motor fuel was imported and (B) such\ninventory shall then be deemed to have been taxed based on the rate and\nall certifications of tax payment given by the distributor with respect\nto motor fuel in such inventory shall indicate a pass through of the\nprepaid tax based on such new price, (ii) if such new rate is greater\nthan the existing rate, on the date such new rate becomes effective (A)\nsuch distributor shall become liable to pay an additional tax equal to\nthe difference between the amount of tax which would be due with respect\nto motor fuel which he or she imported and which he or she has in\ninventory at the time such new rate becomes effective if the prepaid tax\non such motor fuel were calculated based on such new average price for\nthe region in which such motor fuel was imported and the amount of\nprepaid tax paid or actually incurred by such distributor with respect\nto such motor fuel and (B) such inventory shall then be deemed to have\nbeen taxed based on the new rate and all certifications of tax payment\ngiven by the distributor with respect to motor fuel in such inventory\nshall indicate a pass through of the prepaid tax based on such new rate.\nSuch credit shall be allowed with respect to or such tax shall be paid\nwith the return covering the month immediately preceding the month in\nwhich such new rate becomes effective. Any carryover credit may be\napplied to subsequent periods. The amount to be reported as additional\ntax shall be paid and disposed of in the same manner as the tax required\nto be prepaid by section eleven hundred two of this article. Such\nadditional tax shall be determined, assessed, collected and enforced in\nthe same manner as the tax required to be prepaid by section eleven\nhundred two of this article.\n (f) The retail sales tax imposed under subdivision (a) of section\neleven hundred five and the compensating use tax imposed under section\neleven hundred ten, when computed in respect to a new mobile home, shall\nbe computed on seventy percent of the receipts or consideration given\ntherefor by the purchaser or user.\n (g) The sale of race horses made through claiming races within the\nstate, shall be subject to sales tax but only on such portions of the\ntotal purchase price that exceed the highest of any prior purchase\nprices paid for the same horse during the same calendar year within the\nstate. Where no previous purchases have been made within a calendar\nyear, the full purchase price shall be taxable. Officials of all race\ntracks in the state shall maintain and make available, upon reasonable\nrequest, accurate and detailed lists of such sales.\n (h) Receipts subject to tax under subdivision (a) of section eleven\nhundred five on retail sales of cigarettes and tobacco products and\nconsideration given or contracted to be given for cigarettes and tobacco\nproducts the uses of which are subject to tax under section eleven\nhundred ten shall be deemed to include any tax imposed on cigarettes and\ntobacco products by article twenty of this chapter and any tax imposed\non cigarettes by chapter thirteen of title eleven of the administrative\ncode of the city of New York.\n (i) (A) Notwithstanding any contrary provisions of this article or\nother law, with respect to any lease for a term of one year or more of\n(1) a motor vehicle, as defined in section one hundred twenty-five of\nthe vehicle and traffic law, with a gross vehicle weight of ten thousand\npounds or less, or (2) a vessel, as defined in section twenty-two\nhundred fifty of such law (including any inboard or outboard motor and\nany trailer, as defined in section one hundred fifty-six of such law,\nleased in conjunction with such a vessel), or an option to renew such a\nlease or a similar contractual provision, all receipts due or\nconsideration given or contracted to be given for such property under\nand for the entire period of such lease, option to renew or similar\nprovision, or combination of them, shall be deemed to have been paid or\ngiven and shall be subject to tax, and any such tax due shall be\ncollected, as of the date of first payment under such lease, option to\nrenew or similar provision, or combination of them, or as of the date of\nregistration of such property with the commissioner of motor vehicles,\nwhichever is earlier. Notwithstanding any inconsistent provisions of\nsubdivision (b) of this section or of section eleven hundred seventeen\nof this article or of other law, for purposes of such a lease, option to\nrenew or similar provision originally entered into outside this state,\nby a lessee (1) who was a resident of this state, and leased such\nproperty for use outside the state and who subsequently brings such\nproperty into this state for use here or (2) who was a nonresident and\nsubsequently becomes a resident and brings the property into this state\nfor use here, any remaining receipts due or consideration to be given\nafter such lessee brings such property into this state shall be subject\nto tax as if the lessee had entered into or exercised such lease, option\nto renew or similar provision, or combination thereof, for the first\ntime in this state and the relevant provisions of sections eleven\nhundred ten concerning imposition and computation of tax, eleven hundred\neighteen concerning exemption from use tax for tax paid to another\njurisdiction, eleven hundred thirty-two concerning presumption of\ntaxability and conditions for registration and eleven hundred\nthirty-nine concerning refunds, of this article, shall be applicable to\nany sales or compensating use tax paid by the lessee before the lessee\nbrought the property into this state, except to the extent that any such\nprovision is inconsistent with a provision of this subdivision. For\npurposes of this subdivision, (1) a lease for a term of one year or more\nshall include any lease for a shorter term which includes an option to\nrenew or other like provision (or more than one of such option or other\nprovision) where the cumulative period that the lease, with or without\nsuch option or provision, may be in effect upon exercise of such option\nor provision is one year or more and (2) receipts due and consideration\ngiven or contracted to be given under any such lease or other provision\nfor excess mileage charges shall be subject to tax as and when paid or\ndue.\n (B) (1) Notwithstanding any inconsistent provisions of this\nsubdivision, with respect to a lease of a motor vehicle described in\nparagraph (A) of this subdivision for a term of one year or more which\nincludes an indeterminate number of options to renew or other similar\ncontractual provisions or which includes thirty-six or more monthly\noptions to renew beyond the initial term, and under which lease the\nlessee of such motor vehicle has certified in the writing described in\nclause (i) of subparagraph (C) of paragraph two of subsection (h) of\nsection 7701 of the internal revenue code of 1986, under penalty of\nperjury, that the lessee intends that more than fifty percent of the use\nof such vehicle is to be in a trade or business of the lessee, all\nreceipts due or consideration given or contracted to be given under such\nlease for the first thirty-two months, or the period of the initial term\nif greater, of such lease shall be deemed to have been paid or given and\nshall be subject to tax in accordance with the provisions of this\nsubdivision.\n For each such option to renew, or similar provision, or combination of\nthem, exercised after the first thirty-two months, or the period of such\ninitial term, if longer, of any such lease, tax due under this article\nshall be collected and paid or paid over without regard to this\nsubdivision.\n (2) If at the termination of a lease described in subparagraph one of\nthis paragraph the lessor refunds a portion of the receipt or\nconsideration to the lessee as required by a terminal rental adjustment\nclause of such lease, either: (i) the lessee may claim a refund or\ncredit for the sales tax it paid on such refunded receipt or\nconsideration; or (ii) the lessor may claim a refund or credit of the\nsales tax paid by the lessee on such refunded receipt or consideration\nif it has demonstrated to the satisfaction of the commissioner that it\nfirst refunded such tax to the lessee. Notwithstanding the provisions of\nsubdivision (c) of section eleven hundred thirty-nine of this article,\nsuch claim for refund or credit shall be considered timely if it is made\nwithin three years after the tax was paid by the lessor to the\ncommissioner or one year after such receipt or consideration was\nrefunded to the lessee, whichever is later; provided, however, that no\ninterest shall be paid on a refund or credit made pursuant to this\nsubparagraph.\n (C) Any receipts due or consideration given or contracted to be given\nunder an option to renew a lease of a motor vehicle described in this\nsubdivision or similar contractual provision, or combination of them,\nexercised as part of any such lease between the same lessor and the same\nlessee with respect to the same motor vehicle or vehicles, where such\nlease or any option to renew such a lease or any other similar\ncontractual provision was subject to tax in accordance with the\nprovisions of this subdivision, shall not be subject to the tax imposed\nunder the provisions of article twenty-eight-A of this chapter.\n (j) (1) The tax required to be prepaid pursuant to section eleven\nhundred three of this article shall be computed by multiplying the base\nretail price by a tax rate of eight percent and rounding the result\nthereof to the nearest whole cent per package.\n (2) For purposes of this subdivision, the base retail price shall mean\nfor the period September first, nineteen hundred ninety-five, through\nAugust thirty-first, nineteen hundred ninety-six, one dollar for each\npackage of cigarettes containing ten cigarettes or fraction thereof, and\ntwo dollars for each package of cigarettes containing twenty cigarettes\nor fraction thereof in excess of ten and, if a package contains more\nthan twenty cigarettes, the base retail price shall be increased by\nfifty cents for each five cigarettes or fraction thereof in excess of\ntwenty. Effective for the twelve-month period commencing on the first\nday of September of each year, the base retail price for any such\npackage shall be adjusted as follows: As soon as practicable after June\nfirst of each year, the base retail price in effect for the twelve-month\nperiod commencing on the immediately preceding September first shall be\nmultiplied by a fraction, the numerator of which is the total of the\nsums of the manufacturers' list price for a carton of standard brand\ncigarettes containing ten packages of twenty cigarettes and the amount\nof cigarette tax imposed by subdivision one of section four hundred\nseventy-one of this chapter on such a carton of cigarettes, in effect on\nthe first day of each month, for each of the twelve consecutive months\nending with such month of June, and the denominator of which is the\ntotal of the sums of the manufacturers' list price for such a carton of\ncigarettes and the amount of cigarette tax imposed by subdivision one of\nsection four hundred seventy-one of this chapter on such a carton of\ncigarettes, in effect on the first day of each month, for each of the\ntwelve consecutive months ending with the month of June of the\nimmediately preceding year. Provided, however, for purposes of the\nadjustment to any such base retail price required for the period\ncommencing September first, two thousand two, the denominator shall be\nsuch total with respect to the twelve consecutive months ending with the\nmonth of June, nineteen hundred ninety-seven. The manufacturers' list\nprice for a carton of standard brand cigarettes containing ten packages\nof twenty cigarettes in effect on the first day of a month shall be\ndetermined by calculating a weighted average of each of the major\nmanufacturer's list prices for such a carton of cigarettes in effect on\nthe frist day of such month, as such list prices are reported to the\ndepartment by such manufacturers, in the department's determination of\nthe cost of cigarettes under article twenty-A of this chapter, and using\nthe most recently published annual national market shares of such major\nmanufacturers. The commissioner shall cause to be published in the\nsection for miscellaneous notices in the state register, and give other\nappropriate general notice of, the base retail price adjustment\ncalculation and the resulting base retail price fixed by this section\nfor the period commencing September first of each year beginning\nSeptember first, nineteen hundred ninety-six, no later than the\nimmediately preceding first day of August. The calculation and\npublication of the base retail price so fixed by provisions of this\nsection shall not be included within the definition of "rule" as defined\nin paragraph (a) of subdivision two of section one hundred two of the\nstate administrative procedure act. The base retail prices determined\npursuant to this paragraph shall be rounded to the nearest one-tenth of\none cent for each package containing ten cigarettes or fraction thereof,\nfor each package containing twenty cigarettes and, if packages are sold\nin excess of twenty cigarettes and stamps have been issued therefor, for\neach such package.\n (k) Receipts subject to tax under subdivision (a) of section eleven\nhundred five of this article on retail sales of motor fuel, diesel motor\nfuel and residual petroleum product, and consideration given or\ncontracted to be given for motor fuel, diesel motor fuel and residual\npetroleum product, the uses of which are subject to tax under section\neleven hundred ten of this article, shall be deemed to include any tax\nimposed on or with respect to motor fuel, diesel motor fuel or residual\npetroleum product under article thirteen-A of this chapter.\n (l) (1) Receipts from the sale of mobile telecommunications service\nprovided by a home service provider shall include "charges for mobile\ntelecommunications services." Such term shall mean any charge by a home\nservice provider to its mobile telecommunications customer for (A)\ncommercial mobile radio service, and shall include property and services\nthat are ancillary to the provision of commercial mobile radio service\n(such as dial tone, voice service, directory information, call\nforwarding, caller-identification and call-waiting), and (B) any service\nand property provided therewith.\n (2) With respect to services or property described in subparagraph (B)\nof paragraph one of this subdivision, internet access service, any\nmobile telecommunications service which the mobile telecommunications\ncustomer originates in a foreign country to the extent included in the\nfixed periodic charge, any interstate or international telephony or\ntelegraphy or telephone or telegraph service of whatever nature which is\nnot a voice service, and any property or service which is not telephony\nor telegraphy or telephone or telegraph service of whatever nature, a\nhome service provider shall collect and pay over tax, and a mobile\ntelecommunications customer shall pay such tax, on receipts from any\ncharge that is aggregated with and not separately stated from other\ncharges for mobile telecommunications service. Provided, however, if\nsuch home service provider uses an objective, reasonable and verifiable\nstandard for identifying each of the components of the charge for mobile\ntelecommunications service, then such home service provider may\nseparately account for and quantify the amount of each such component\ncharge. If a home service provider chooses to so separately account for\nand quantify and separately sells any such property or service, then the\ncharge for such property or service shall be based upon the price for\nsuch property or service as separately sold. If a home service provider\nchooses to so separately account for and quantify and does not\nseparately sell such property or service, then the charge for such\nproperty or service shall be based upon the prevailing retail price of\ncomparable property or service sold separately by other home service\nproviders. In any case, the charge for such property or service shall be\nreasonable and proportionate to the total charge to the mobile\ntelecommunications customer. Such charges for such services or property,\nas the case may be, will not constitute receipts from charges for mobile\ntelecommunications services subject to tax under subdivision (b) of\nsection eleven hundred five of this article. Nothing herein shall be\nconstrued to exempt from tax or subject to tax any such service or\nproperty otherwise subject to tax or exempt from tax under this article.\n (3) (A) Any charge for a service or property billed by or for a mobile\ntelecommunications customer's home service provider shall be deemed to\nbe provided by such mobile telecommunications customer's home service\nprovider.\n (B) Charges for mobile telecommunications service that are provided or\ndeemed to be provided by a mobile telecommunications customer's home\nservice provider shall be sourced to the taxing jurisdiction where the\nmobile telecommunications customer's place of primary use is located,\nregardless of where the mobile telecommunications service originates,\nterminates or passes through.\n (m) Notwithstanding any provision of law to the contrary:\n (1) The sales tax imposed by subdivision (a) of section eleven hundred\nfive of this article and the compensating use tax imposed by section\neleven hundred ten of this article, in regard to retail sales of motor\nfuel and diesel motor fuel, shall be eight cents per gallon.\n (2) The sales and compensating use taxes imposed by subdivision (a) of\nsection eleven hundred nine of this article, in regard to retail sales\nof motor fuel and diesel motor fuel, shall be three-quarters of one cent\nper gallon.\n (3) Paragraph one of this subdivision shall not apply to the sales and\ncompensating use taxes imposed by subdivision (a) of section eleven\nhundred seven of this article in regard to retail sales of motor fuel\nand diesel motor fuel. However, the legislative body of a city in which\nthe taxes imposed by such section eleven hundred seven are in effect, by\nlocal law, ordinance, or resolution in exactly the form prepared by the\ncommissioner, may elect that such taxes, in regard to retail sales of\nmotor fuel and diesel motor fuel, shall be computed, as determined by\nthe commissioner, at a rate of cents per gallon, rounded to the nearest\ncent, equal to two or three dollars, as determined by the municipality,\nmultiplied by the percentage rate of such taxes within the municipality.\n (4) Paragraph one of this subdivision shall not apply to the sales and\ncompensating use taxes imposed by a local law, ordinance or resolution\nof a municipality pursuant to the authority of subpart B of part one of\narticle twenty-nine of this chapter, in regard to retail sales of motor\nfuel and diesel motor fuel. The legislative body of such a municipality,\nby local law, ordinance or resolution in exactly the form prepared by\nthe commissioner, may elect that its sales and compensating use taxes,\nin regard to the retail sale of motor fuel and diesel motor fuel, shall\nbe computed, as determined by the commissioner, at a rate of cents per\ngallon, rounded to the nearest cent, equal to two, three or four\ndollars, as determined by the municipality, multiplied by the percentage\nrate of such taxes within the municipality.\n (5)(i) Prior to the start of any sales tax quarter, the commissioner\nshall apply the local percentage sales tax rate of each county or city\nthat has elected a cents per gallon rate pursuant to paragraph three or\nfour of this subdivision to the average price of motor fuel and diesel\nmotor fuel, not including sales tax and the motor fuel excise tax, for\nthree consecutive months beginning four months prior to the start of any\nsales tax quarter. If the result of this computation is less than the\nelected cents per gallon rate for a county or city, the cents per gallon\nrate for such county or city shall be adjusted to be equal to such\ncomputation, rounded to the nearest one cent. Such rates shall be\npublished by the commissioner and effective in the next succeeding sales\ntax quarter.\n (ii) Prior to the start of any sales tax quarter, the commissioner\nshall also adjust in a like manner the cents per gallon rates prescribed\nby paragraphs one and two of this subdivision based on percentage sales\ntax rates of four percent and three-eighths of a percent respectively.\nProvided, however, adjustments made to the cents per gallon rate\nprescribed by paragraph two of this subdivision shall be rounded to the\nnearest one-tenth of one cent.\n (6) A local law, ordinance or resolution making or revoking the\nelection made pursuant to paragraph three or four of this subdivision\nmust go into effect in accordance with the provisions of subdivisions\n(d) and (e) of section twelve hundred ten of this chapter.\n (7) Notwithstanding any foregoing provision of this subdivision or\nother law to the contrary, this subdivision, subdivision (h) of section\neleven hundred nine of this part and subdivision (n) of section eighteen\nhundred seventeen of this chapter, section three hundred ninety-two-i of\nthe general business law and other provisions of law which refer or\nrelate to this subdivision shall apply only to (A) motor fuel or diesel\nmotor fuel sold for use directly and exclusively in the engine of a\nmotor vehicle and (B) motor fuel or diesel motor fuel, other than\nwater-white kerosene sold exclusively for heating purposes in containers\nof no more than twenty gallons, sold by a retail gas station. For\npurposes of this subdivision and such other provisions of law, "retail\ngas station" shall mean a filling station where such fuel is stored\nprimarily for sale by delivery directly into the ordinary fuel tank\nconnected with the engine of a motor vehicle to be consumed in the\noperation of such motor vehicle or where such fuel is stored primarily\nfor sale by delivery directly into the ordinary fuel tank connected with\nthe engine of a vessel to be consumed in the operation of such vessel.\nThe commissioner is hereby authorized to require the use of certificates\nor other documents, and procedures related thereto, to effect the\npurposes of this subdivision; and any such certificate or other document\nso required by the commissioner for a purchaser to tender to a vendor to\npurchase such fuel subject to tax on the reduced base established by or\npursuant to this subdivision is hereby deemed to be an exemption\ncertificate as such term is used in subdivision (c) of section eleven\nhundred thirty-two of this article and as if the provisions of such\nsubdivision (c) referred to such a certificate or document required\npursuant to this subdivision.\n * (n) The sales and compensating use taxes imposed by this article and\npursuant to the authority of article twenty-nine of this chapter on B20\nshall be imposed at eighty percent of the rate of the cents per gallon\ntaxes described in subdivision (m) of this section. However, if a county\nor city does not make the cents per gallon election authorized by such\nsubdivision (m), the taxes of such county or city imposed pursuant to\nthe authority of such article twenty-nine or the taxes imposed in a city\nof one million or more by section eleven hundred seven of this article\nshall be imposed on eighty percent of the receipts from the retail sale\nof or the consideration given or contracted to be given for, or for the\nuse of, such B20.\n * NB Repealed September 1, 2026\n (o) (1) If a transportation service subject to tax under paragraph ten\nof subdivision (c) of section eleven hundred five of this part is\nprovided by vehicle, and the owner or lessor of the vehicle leases or\nrents the vehicle to an unrelated person who provides the transportation\nservice, such as a limousine driver who drives a limousine owned by\nanother person, then (i) the owner or lessor is deemed to provide the\ntransportation service during the day or other period that the unrelated\nperson uses the vehicle to provide the service, (ii) the owner or lessor\nis deemed to be the vendor of the service provided by the unrelated\nperson, (iii) the tax imposed by such paragraph ten is deemed to be\nimposed on the unrelated person, (iv) the owner or lessor, as vendor,\nmust collect the tax from the unrelated person, based on the local\njurisdiction where the driver takes delivery of the vehicle and pay over\nsuch tax required to be collected with its returns required to be filed\nunder this article, and (v) the receipts subject to the tax equal two\nhundred percent of the amount that the owner or lessor charges the\nunrelated person for the use of the vehicle during the day or other\nperiod, including any charge related to insurance, maintenance, repairs,\nfuel, the use, rental or economic value of any vehicle or business\nlicense, and any other charge made by the owner or lessor to the\nunrelated person for the day or other period, regardless of whether the\nunrelated person transported, carried or conveyed any person or earned\nany fares with that vehicle during that day or other period.\n (2) Notwithstanding any law to the contrary:\n (i) Any municipality or public corporation that establishes or\nregulates black car, limousine or other vehicle service fares must\nadjust those fares to include therein the tax imposed by paragraph ten\nof subdivision (c) of section eleven hundred five of this part and the\ntaxes imposed by other sections of this part and pursuant to the\nauthority of article twenty-nine of this chapter on the services taxed\nby such paragraph ten and must require that any meters or other devices\nin the vehicles or otherwise that measure fares be adjusted to include\nthese taxes, as the same are from time to time imposed and as the rates\nof those taxes may change.\n (ii) Any person that sells the services described in paragraph one of\nthis subdivision must adjust any meters or other devices in the vehicles\nor otherwise that measure fares so that they timely reflect any change\nin the rates of the taxes described in subparagraph (i) of this\nparagraph. Neither the failure of a municipal or other public\ncorporation to adjust fares nor the failure of any person to adjust the\nmeters or devices will relieve any person from the obligation to collect\nand pay or pay over such taxes timely, at the correct combined rate.\n (3) For purposes of this subdivision, "unrelated person" means a\nperson other than a related person as defined for purposes of section\nfourteen of this chapter.\n (p) Notwithstanding any contrary provision of law: (1) The sales tax\nimposed by subdivision (a) of section eleven hundred five of this part\non receipts from the retail sale of a new modular home module shall be\ncomputed on the sum of (i) sixty percent of the vendor's receipts from\nthe sale of the module, excluding any charges by the vendor to the\npurchaser for shipping or delivery, as described in paragraph three of\nsubdivision (b) of section eleven hundred one of this article and (ii)\none hundred percent of any charges by the vendor to the purchaser for\nshipping or delivery of the modules as described in such paragraph three\nof subdivision (b) of section eleven hundred one.\n (2) The compensating use tax imposed by clause (A) of subdivision (a)\nof section eleven hundred ten of this part on the use of a new modular\nhome module by its purchaser shall be computed on the sum of (i) sixty\npercent of the amount described in subdivision (b) of such section\neleven hundred ten, excluding any charges for shipping or delivery as\ndescribed in paragraph three of subdivision (b) of section eleven\nhundred one of this article, and (ii) one hundred percent of any charges\nfor shipping or delivery as described in such paragraph three of\nsubdivision (b) of section eleven hundred one.\n (3) The compensating use tax imposed by subclause (i) or (ii) of\nclause (B) of subdivision (a) of section eleven hundred ten of this part\non the use of modular home modules by their manufacturer to be installed\nat a building site to construct a modular home that constitutes a\ncapital improvement shall be computed on the sum of (i) sixty percent of\nthe consideration for which the manufacturer conveys those modules to\nthe modular home buyer on an installed basis, excluding any\nconsideration for shipping or delivery as described in paragraph three\nof subdivision (b) of section eleven hundred one of this article, and\nexcluding the consideration for the installation of those modules at the\nbuilding site as a modular home if such installation charge is\nreasonable and stated separately from every other charge, and (ii) one\nhundred percent of any charges for shipping or delivery as described in\nsuch paragraph three of subdivision (b) of section eleven hundred one.\n (q) (1) The exclusions from the definition of retail sale in\nsubparagraph (iv) of paragraph four of subdivision (b) of section eleven\nhundred one of this article shall not apply to transfers, distributions,\nor contributions of a vessel, except where, in the case of the exclusion\nin subclause (I) of clause (A) of such subparagraph (iv), the two\ncorporations to be merged or consolidated are not affiliated persons\nwith respect to each other. For purposes of this subdivision,\ncorporations are affiliated persons with respect to each other where (i)\nmore than five percent of their combined shares are owned by members of\nthe same family, as defined by paragraph four of subsection (c) of\nsection two hundred sixty-seven of the internal revenue code of nineteen\nhundred eighty-six; (ii) one of the corporations has an ownership\ninterest of more than five percent, whether direct or indirect, in the\nother; or (iii) another person or a group of other persons that are\naffiliated persons with respect to each other hold an ownership interest\nof more than five percent, whether direct or indirect, in each of the\ncorporations.\n (2) Notwithstanding any contrary provision of law, in relation to any\ntransfer, distribution, or contribution of a vessel that qualifies as a\nretail sale as a result of paragraph one of this subdivision, the sales\ntax imposed by subdivision (a) of section eleven hundred five of this\npart shall be computed based on the price at which the seller purchased\nthe tangible personal property, provided that where the seller or\npurchaser affirmatively shows that the seller owned the property for six\nmonths prior to making the transfer, distribution or contribution\ncovered by paragraph one of this subdivision, such vessel shall be taxed\non the basis of the current market value of the vessel at the time of\nthat transfer, distribution, or contribution. For the purposes of the\nprior sentence, "current market value" shall not exceed the cost of the\nvessel. See subdivision (b) of this section for a similar rule on the\ncomputation of any compensating use tax due under section eleven hundred\nten of this part on such transfers, distributions, or contributions.\n (3) A purchaser of a vessel covered by paragraph one of this\nsubdivision will be entitled to a refund or credit against the sales or\ncompensating use tax due as a result of a transfer, distribution, or\ncontribution of such vessel in the amount of any sales or use tax paid\nto this state or any other state on the seller's purchase or use of the\nvessel so transferred, distributed or contributed, but not to exceed the\ntax due on the transfer, distribution, or contribution of the vessel or\non the purchaser's use in the state of the vessel so transferred,\ndistributed or contributed. An application for a refund or credit under\nthis subdivision must be filed and shall be in such form as the\ncommissioner may prescribe. Where an application for credit has been\nfiled, the applicant may immediately take such credit on the return\nwhich is due coincident with or immediately subsequent to the time the\napplication for credit is filed. However, the taking of the credit on\nthe return shall be deemed to be part of the application for credit.\nProvided that the commissioner may, in his or her discretion and\nnotwithstanding any other law, waive the application requirement for any\nor all classes of persons where the amount of the credit or refund is\nequal to the amount of the tax due from the purchaser. The provisions of\nsubdivisions (a), (b), and (c) of section eleven hundred thirty-nine of\nthis article shall apply to applications for refund or credit under this\nsubdivision. No interest shall be allowed or paid on any refund made or\ncredit allowed under this subdivision. If a refund is granted or a\ncredit allowed under this paragraph, the seller or purchaser shall not\nbe eligible for a refund or credit pursuant to subdivision seven of\nsection eleven hundred eighteen of this article with regard to the same\npurchase or use.\n (r) (1) In regard to the collection of sales tax on occupancies by\nroom remarketers, when occupancy is provided for a single consideration\nwith property, services, amusement charges, or any other items, whether\nor not such other items are taxable, the rent portion of the\nconsideration for such transaction shall be computed as follows: either\nthe total consideration received by the room remarketer multiplied by a\nfraction, the numerator of which shall be the consideration payable for\nthe occupancy by the room remarketer and the denominator of which shall\nbe such consideration payable for the occupancy plus the consideration\npayable by the remarketer for the other items being sold, or by any\nother method as may be authorized by the commissioner. If the room\nremarketer fails to separately state the tax on the rent so computed on\na sales slip, invoice, receipt, or other statement given to the occupant\nin the manner prescribed by paragraph two of this subdivision or fails\nto maintain records of the prices of all components of a transaction\ncovered by this paragraph, the entire consideration shall be treated as\nrent subject to tax under paragraph one of subdivision (e) of section\neleven hundred five of this part. Nothing herein shall be construed to\nsubject to tax or exempt from tax any service or property or amusement\ncharge or other items otherwise subject to tax or exempt from tax under\nthis article or pursuant to the authority of article twenty-nine of this\nchapter. A room remarketer's records of the consideration payable for\nall components of a transaction covered by this paragraph are records\nrequired to be maintained for purposes of subdivision (a) of section\neleven hundred thirty-five of this article.\n (2) In regard to the collection of sales tax on occupancies by room\nremarketers, including a transaction described in paragraph one of this\nsubdivision, the requirements of the second sentence of paragraph one of\nsubdivision (a) of section eleven hundred thirty-two of this article\nshall be deemed satisfied if the remarketer gives the customer a sales\nslip, invoice, receipt, or other statement of the price ("invoice")\nprior to the customer's completion of his or her occupancy, on which the\namount of tax due under this article and pursuant to the authority of\narticle twenty-nine of this chapter is stated. The room remarketer must\nkeep either a copy of the invoice as required by subdivision (a) of\nsection eleven hundred thirty-five of this article, or electronic\nrecords that accurately reflect the information that is on the invoice\nprovided to the customer.\n (3) In regard to the reporting and the payment to the commissioner by\nroom remarketers of sales tax due on occupancies, subdivision (a) of\nsection eleven hundred thirty-seven of this article shall be read to\nrequire a room remarketer to report such sales tax due, including in\nregard to a transaction described in paragraph one of this subdivision,\non the return due for the filing period in which the occupancy ends and,\nat the time of filing such return, to pay to the commissioner the total\namount described by such subdivision (a).\n