§ 875 — Special provisions applicable to state sales and compensating use taxes and certain types of facilities

§ 875. Special provisions applicable to state sales and compensating\nuse taxes and certain types of facilities. 1. For purposes of this\nsection: "state sales and use taxes" means sales and compensating use\ntaxes and fees imposed by article twenty-eight or twenty-eight-A of the\ntax law but excluding such taxes imposed in a city by section eleven\nhundred seven or eleven hundred eight of such article twenty-eight.\n"IDA" means an industrial development agency established by this article\nor an industrial development authority created by the public authorities\nlaw. "Commissioner" means the commissioner of taxation and finance.\n 2. An IDA shall keep records of the amount of state and local sales\nand use tax exemption benefits provided to each project and each agent\nor project operator and shall make such records available to the\ncommissioner upon request. Such IDA shall also, within thirty days of\nproviding financial assistance to a project that includes any amount of\nstate sales and use tax exemption benefits, report to the commissioner\nthe amount of such benefits for such project, the project to which they\nare being provided, together with such other information and such\nspecificity and detail as the commissioner may prescribe. This report\nmay be made in conjunction with the statement required by subdivision\nnine of section eight hundred seventy-four of this title or it may be\nmade as a separate report, at the discretion of the commissioner. An IDA\nthat fails to make such records available to the commissioner or to file\nsuch reports shall be prohibited from providing state sales and use tax\nexemption benefits for any project unless and until such IDA comes into\ncompliance with all such requirements.\n 3. (a) An IDA shall include within its resolutions and project\ndocuments establishing any project or appointing an agent or project\noperator for any project the terms and conditions in this subdivision,\nand every agent, project operator or other person or entity that shall\nenjoy state sales and use tax exemption benefits provided by an IDA\nshall agree to such terms as a condition precedent to receiving or\nbenefiting from such state sales and use exemptions benefits.\n (b) The IDA shall recover, recapture, receive, or otherwise obtain\nfrom an agent, project operator or other person or entity state sales\nand use exemptions benefits taken or purported to be taken by any such\nperson to which the person is not entitled or which are in excess of the\namounts authorized or which are for property or services not authorized\nor taken in cases where such agent or project operator, or other person\nor entity failed to comply with a material term or condition to use\nproperty or services in the manner required by the person's agreement\nwith the IDA. Such agent or project operator, or other person or entity\nshall cooperate with the IDA in its efforts to recover, recapture,\nreceive, or otherwise obtain such state sales and use exemptions\nbenefits and shall promptly pay over any such amounts to the IDA that it\nrequests. The failure to pay over such amounts to the IDA shall be\ngrounds for the commissioner to assess and determine state sales and use\ntaxes due from the person under article twenty-eight of the tax law,\ntogether with any relevant penalties and interest due on such amounts.\n (c) If an IDA recovers, recaptures, receives, or otherwise obtains,\nany amount of state sales and use tax exemption benefits from an agent,\nproject operator or other person or entity, the IDA shall, within thirty\ndays of coming into possession of such amount, remit it to the\ncommissioner, together with such information and report that the\ncommissioner deems necessary to administer payment over of such amount.\nAn IDA shall join the commissioner as a party in any action or\nproceeding that the IDA commences to recover, recapture, obtain, or\notherwise seek the return of, state sales and use tax exemption benefits\nfrom an agent, project operator or other person or entity.\n (d) An IDA shall prepare an annual compliance report detailing its\nterms and conditions described in paragraph (a) of this subdivision and\nits activities and efforts to recover, recapture, receive, or otherwise\nobtain state sales and use exemptions benefits described in paragraph\n(b) of this subdivision, together with such other information as the\ncommissioner and the commissioner of economic development may require.\nThe report required by this subdivision shall be filed with the\ncommissioner, the director of the division of the budget, the\ncommissioner of economic development, the state comptroller, the\ngoverning body of the municipality for whose benefit the agency was\ncreated, and may be included with the annual financial statement\nrequired by paragraph (b) of subdivision one of section eight hundred\nfifty-nine of this title. Such report required by this subdivision shall\nbe filed regardless of whether the IDA is required to file such\nfinancial statement described by such paragraph (b) of subdivision one\nof section eight hundred fifty-nine. The failure to file or\nsubstantially complete the report required by this subdivision shall be\ndeemed to be the failure to file or substantially complete the statement\nrequired by such paragraph (b) of subdivision one of such section eight\nhundred fifty-nine, and the consequences shall be the same as provided\nin paragraph (e) of subdivision one of such section eight hundred\nfifty-nine.\n (e) This subdivision shall apply to any amounts of state sales and use\ntax exemption benefits that an IDA recovers, recaptures, receives, or\notherwise obtains, regardless of whether the IDA or the agent, project\noperator or other person or entity characterizes such benefits\nrecovered, recaptured, received, or otherwise obtained, as a penalty or\nliquidated or contract damages or otherwise. The provisions of this\nsubdivision shall also apply to any interest or penalty that the IDA\nimposes on any such amounts or that are imposed on such amounts by\noperation of law or by judicial order or otherwise. Any such amounts or\npayments that an IDA recovers, recaptures, receives, or otherwise\nobtains, together with any interest or penalties thereon, shall be\ndeemed to be state sales and use taxes and the IDA shall receive any\nsuch amounts or payments, whether as a result of court action or\notherwise, as trustee for and on account of the state.\n 4. The commissioner shall deposit and dispose of any amount of any\npayments or moneys received from or paid over by an IDA or from or by\nany person or entity, or received pursuant to an action or proceeding\ncommenced by an IDA, together with any interest or penalties thereon,\npursuant to subdivision three of this section, as state sales and use\ntaxes in accord with the provisions of article twenty-eight of the tax\nlaw. The amount of any such payments or moneys, together with any\ninterest or penalties thereon, shall be attributed to the taxes imposed\nby sections eleven hundred five and eleven hundred ten, on the one hand,\nand section eleven hundred nine of the tax law, on the other hand, or to\nany like taxes or fees imposed by such article, based on the proportion\nthat the rates of such taxes or fees bear to each other, unless there is\nevidence to show that only one or the other of such taxes or fees was\nimposed or received or paid over.\n 5. The statement that an IDA is required by subdivision nine of\nsection eight hundred seventy-four of this article to file with the\ncommissioner shall not be considered an exemption or other certificate\nor document under article twenty-eight or twenty-nine of the tax law.\nThe IDA shall not represent to any agent, project operator, or other\nperson or entity that a copy of such statement may serve as a sales or\nuse tax exemption certificate or document. No agent or project operator\nmay tender a copy of such statement to any person required to collect\nsales or use taxes as the basis to make any purchase exempt from tax. No\nsuch person required to collect sales or use taxes may accept such a\nstatement in lieu of collecting any tax required to be collected. The\ncivil and criminal penalties for misuse of a copy of such statement as\nan exemption certificate or document or for failure to pay or collect\ntax shall be as provided in the tax law. In addition, the use by an IDA\nor agent, project operator, or other person or entity of such statement,\nor the IDA's recommendation of the use or tendering of such statement,\nas such an exemption certificate or document shall be deemed to be,\nunder articles twenty-eight and thirty-seven of the tax law, the\nissuance of a false or fraudulent exemption certificate or document with\nintent to evade tax.\n 6. The commissioner is hereby authorized to audit the records,\nactions, and proceedings of an IDA and of its agents and project\noperators to ensure that the IDA and its agents and project operators\ncomply with all the requirements of this section. Any information the\ncommissioner finds in the course of such audit may be used by the\ncommissioner to assess and determine state and local taxes of the IDA's\nagent or project operator.\n 7. In addition to any other reporting or filing requirements an IDA\nhas under this article or other law, an IDA shall also report and make\navailable on the internet, without charge, copies of its resolutions and\nagreements appointing an agent or project operator or otherwise related\nto any project it establishes. It shall also provide, without charge,\ncopies of all such reports and information to a person who asks for it\nin writing or in person. The IDA may, at the request of its agent or\nproject operator delete from any such copies posted on the internet or\nprovided to a person described in the prior sentence portions of its\nrecords that are specifically exempted from disclosure under article six\nof the public officers law.\n 8. In consultation with the commissioner of economic development, the\ncommissioner of taxation and finance is hereby authorized to adopt rules\nand regulations and to issue publications and other guidance\nimplementing the provisions of this section and of the other sections of\nthis article relating to any state or local tax or fee, or exemption or\nexclusion therefrom, that the commissioner administers and that may be\naffected by any provision of this article, and any such rules and\nregulations of the commissioner shall have the same force and effect\nwith respect to such taxes and fees, or amounts measured in respect of\nthem, as if they had been adopted by the commissioner pursuant to the\nauthority of the tax law.\n 9. To the extent that a provision of this section conflicts with a\nprovision of any other section of this article, the provisions of this\nsection shall control.\n