§ 1105 — Imposition of sales tax

New York § 1105

• Jurisdiction: New York
• Law TAX: Tax
• Part 2: Imposition of Taxes
• Art. 28: Sales and Compensating Use Taxes

Text

§ 1105. Imposition of sales tax. On and after June first, nineteen\nhundred seventy-one, there is hereby imposed and there shall be paid a\ntax of four percent upon:\n (a) The receipts from every retail sale of tangible personal property,\nexcept as otherwise provided in this article.\n (b) (1) The receipts from every sale, other than sales for resale, of\nthe following: (A) gas, electricity, refrigeration and steam, and gas,\nelectric, refrigeration and steam service of whatever nature, including\nthe transportation, transmission or distribution of gas or electricity,\neven if sold separately; (B) telephony and telegraphy and telephone and\ntelegraph service of whatever nature except interstate and international\ntelephony and telegraphy and telephone and telegraph service and except\nany telecommunications service the receipts from the sale of which are\nsubject to tax under paragraph two of this subdivision; (C) a telephone\nanswering service; and (D) a prepaid telephone calling service.\n (2) The receipts from every sale of mobile telecommunications service\nprovided by a home service provider, other than sales for resale, that\nare voice services, or any other services that are taxable under\nsubparagraph (B) of paragraph one of this subdivision, sold for a fixed\nperiodic charge (not separately stated), whether or not sold with other\nservices.\n (3) The tax imposed pursuant to this subdivision is imposed on\nreceipts from charges for intrastate mobile telecommunications service\nof whatever nature in any state if the mobile telecommunications\ncustomer's place of primary use is in this state.\n (4) (A) For the purpose of subparagraph (B) of paragraph one of this\nsubdivision, receipts from the sale of telephony or telephone service\nconstituting the actual delivery of telephony or telephone service under\na prepaid telephone calling service (for instance, when the receipt is\nrepresented by a debit to a prepaid account) shall be excluded from the\nreceipts subject to tax under such subparagraph; and (B) for purposes of\nsubparagraph (B) of paragraph one and paragraph two of this subdivision,\na particular sale of telephony or telephone service to a vendor that\nresells such telephony or telephone service as a component of a prepaid\ntelephone calling service shall be deemed a sale for resale of telephony\nor telegraph service.\n (c) The receipts from every sale, except for resale, of the following\nservices:\n (1) The furnishing of information by printed, mimeographed or\nmultigraphed matter or by duplicating written or printed matter in any\nother manner, including the services of collecting, compiling or\nanalyzing information of any kind or nature and furnishing reports\nthereof to other persons, but excluding the furnishing of information\nwhich is personal or individual in nature and which is not or may not be\nsubstantially incorporated in reports furnished to other persons, and\nexcluding the services of advertising or other agents, or other persons\nacting in a representative capacity, and information services used by\nnewspapers, electronic news services, radio broadcasters and television\nbroadcasters in the collection and dissemination of news, and excluding\nmeteorological services.\n (2) Producing, fabricating, processing, printing or imprinting\ntangible personal property, performed for a person who directly or\nindirectly furnishes the tangible personal property, not purchased by\nhim for resale, upon which services are performed.\n (3) Installing tangible personal property, excluding a mobile home, or\nmaintaining, servicing or repairing tangible personal property,\nincluding a mobile home, not held for sale in the regular course of\nbusiness, whether or not the services are performed directly or by means\nof coin-operated equipment or by any other means, and whether or not any\ntangible personal property is transferred in conjunction therewith,\nexcept:\n (i) such services rendered by an individual who is engaged directly by\na private home owner or lessee in or about his residence and who is not\nin a regular trade or business offering his services to the public; and\n (ii) any receipts from laundering, dry-cleaning, tailoring, weaving,\npressing, shoe repairing and shoe shining; and\n (iii) for installing property which, when installed, will constitute\nan addition or capital improvement to real property, property or land,\nas the terms real property, property or land are defined in the real\nproperty tax law as such term capital improvement is defined in\nparagraph nine of subdivision (b) of section eleven hundred one of this\nchapter; and\n (iv) such services rendered with respect to commercial vessels and\nproperty used by or purchased for the use of such vessels, as such\nvessels and property are specified in paragraph eight of subdivision (a)\nof section eleven hundred fifteen of this article; and\n (v) such services rendered with respect to commercial aircraft,\nmachinery or equipment and property used by or purchased for the use of\nsuch aircraft as such aircraft, machinery or equipment, and property are\nspecified in paragraph twenty-one of subdivision (a) of section eleven\nhundred fifteen of this article; and\n (vi) such services rendered with respect to tangible personal property\nfor use or consumption predominantly either in the production for sale\nof tangible personal property by farming or in a commercial horse\nboarding operation, or in both, as such tangible personal property is\nspecified in paragraph six of subdivision (a) of section eleven hundred\nfifteen of this article.\n (vii) such services rendered with respect to fishing vessels and\nproperty used by or purchased for such vessels as such vessels are\nspecified in paragraph twenty-four of subdivision (a) of section eleven\nhundred fifteen of this article.\n (viii) such services rendered with respect to railroad rolling stock\nprimarily engaged in carrying freight in intrastate, interstate or\nforeign commerce, but not including any charge for parts or other\ntangible personal property whether such property has become a physical\ncomponent part of the property upon which the services are performed or\nhas been transferred to the purchaser of the services in conjunction\nwith the performance of the services subject to the tax.\n (ix) such services rendered with respect to tangible property used or\nconsumed directly and predominantly in the production for sale of gas or\noil by manufacturing, processing, generating, assembling, refining,\nmining, or extracting.\n (x) such services rendered with respect to property described in\nparagraph twelve-a of subdivision (a) of section eleven hundred fifteen\nof this article.\n * (xi) Such services rendered with respect to property described in\nparagraph twelve-b of section eleven hundred fifteen of this article.\n * NB Expired September 1, 2003\n Provided, however, that nothing contained in this paragraph three\nshall be construed to exclude from tax under this paragraph or under\nsubdivision (b) of this section any charge, made by a person furnishing\nservice subject to tax under subdivision (b) of this section, for\ninstalling property at the premises of a purchaser of such a taxable\nservice for use in connection with such service.\n (4) Storing all tangible personal property not held for sale in the\nregular course of business and the rental of safe deposit boxes or\nsimilar space.\n (5) Maintaining, servicing or repairing real property, property or\nland, as such terms are defined in the real property tax law, whether\nthe services are performed in or outside of a building, as distinguished\nfrom adding to or improving such real property, property or land, by a\ncapital improvement as such term capital improvement is defined in\nparagraph nine of subdivision (b) of section eleven hundred one of this\narticle, but excluding (i) services rendered by an individual who is not\nin a regular trade or business offering his services to the public, (ii)\nservices rendered directly with respect to real property, property or\nland used or consumed directly and predominantly in the production for\nsale of gas or oil by manufacturing, processing, generating, assembling,\nrefining, mining, or extracting, (iii) services rendered with respect to\nreal property, property or land used or consumed predominantly either in\nthe production of tangible personal property, for sale, by farming or in\na commercial horse boarding operation, or in both and (iv) services of\nremoval of waste material from a facility regulated as a transfer\nstation or construction and demolition debris processing facility by the\ndepartment of environmental conservation, provided that the waste\nmaterial to be removed was not generated by the facility.\n (6) Providing parking, garaging or storing for motor vehicles by\npersons operating a garage (other than a garage which is part of\npremises occupied solely as a private one or two family dwelling),\nparking lot or other place of business engaged in providing parking,\ngaraging or storing for motor vehicles provided, however, this paragraph\nshall not apply to such facilities owned and operated by a public\ncorporation, as defined by section sixty-six of the general construction\nlaw, other than a public benefit corporation, as defined by such section\nsixty-six, created by interstate compact or at least half of whose\nmembers are appointed by the governor, or any agency or instrumentality\nof a municipal corporation or district corporation as defined by such\nsection sixty-six. Provided, however, receipts for such services paid to\na homeowner's association by its members or receipts paid by members of\na homeowner's association to a person leasing the parking facility from\nthe homeowner's association shall not be subject to the tax imposed by\nthis paragraph. For purposes of this paragraph, a homeowner's\nassociation is an association (including a cooperative housing or\napartment corporation) (i) the membership of which is comprised\nexclusively of owners or residents of residential dwelling units,\nincluding owners of units in a condominium, and including shareholders\nin a cooperative housing or apartment corporation, where such units are\nlocated in a defined geographical area such as a housing development or\nsubdivision and (ii) which owns or operates a garage, parking lot or\nother place of business engaged in providing parking, garaging or\nstoring for motor vehicles located in such area for use (whether or not\nexclusive) by such owners or residents.\n (7) Interior decorating and designing services, (whether or not in\nconjunction with the sale of tangible personal property), by whomsoever\nperformed, including interior decorators and designers, architects or\nengineers; notwithstanding the foregoing, such services shall not\ninclude services which consist of the practice of architecture, as\ndefined in section seventy-three hundred one of the education law, or\nthe practice of engineering, as defined in section seventy-two hundred\none of the education law, if the services are performed by an architect\nor engineer having a license or permit under the education law.\n (8) Protective and detective services, including, but not limited to,\nall services provided by or through alarm or protective systems of every\nnature, including, but not limited to, protection against burglary,\ntheft, fire, water damage or any malfunction of industrial processes or\nany other malfunction of or damage to property or injury to persons,\ndetective agencies, armored car services and guard, patrol and security\nservices of every nature other than the performance of such services by\na security officer licensed by the New York Waterfront Commission or the\nwaterfront commission of New York harbor, whether or not tangible\npersonal property is transferred in conjunction therewith.\n (9) (i) The furnishing or provision of an entertainment service or of\nan information service (but not an information service subject to tax\nunder paragraph one of this subdivision), which is furnished, provided,\nor delivered by means of telephony or telegraphy or telephone or\ntelegraph service (whether intrastate or interstate) of whatever nature,\nsuch as entertainment or information services provided through 800 or\n900 numbers or mass announcement services or interactive information\nnetwork services. Provided, however, that in no event (i) shall the\nfurnishing or provision of an information service be taxed under this\nparagraph unless it would otherwise be subject to taxation under\nparagraph one of this subdivision if it were furnished by printed,\nmimeographed or multigraphed matter or by duplicating written or printed\nmatter in any other manner nor (ii) shall the provision of cable\ntelevision service to customers be taxed under this paragraph.\n (ii) Notwithstanding the rate and date set forth in the opening\nundesignated paragraph of this section and notwithstanding the opening\nundesignated paragraph of this subdivision, on and after September\nfirst, nineteen hundred ninety-three, in addition to any other tax\nimposed under this section, and in addition to any other tax or fee\nimposed under any other provision of law, there is hereby imposed and\nthere shall be paid an additional tax at the rate of five percent upon\nthe receipts which are subject to tax under subparagraph (i) of this\nparagraph on the furnishing or provision of an entertainment or\ninformation service which is received by the customer exclusively in an\naural manner. Such additional tax shall not be imposed by section eleven\nhundred seven, eleven hundred eight or eleven hundred nine of this\narticle and shall not be included among the taxes authorized to be\nimposed pursuant to the authority of article twenty-nine of this\nchapter.\n (10) Transportation service, whether or not any tangible personal\nproperty is transferred in conjunction therewith, and regardless of\nwhether the charge is paid in this state or out of state so long as the\nservice is provided in this state.\n Wages, salaries and other compensation paid by an employer to an\nemployee for performing as an employee the services described in\nparagraphs (1) through (9) of this subdivision (c) are not receipts\nsubject to the taxes imposed under such subdivision.\n (d) (i) The receipts from every sale, other than sales for resale, of\nbeer, wine or other alcoholic beverages or any other drink of any\nnature, or from every sale, other than sales for resale, of food and\ndrink of any nature or of food alone, when sold in or by restaurants,\ntaverns or other establishments in this state, or by caterers, including\nin the amount of such receipts any cover, minimum, entertainment or\nother charge made to patrons or customers (except those receipts taxed\npursuant to subdivision (f) of this section):\n (1) in all instances where the sale is for consumption on the premises\nwhere sold;\n (2) in those instances where the vendor or any person whose services\nare arranged for by the vendor, after the delivery of the food or drink\nby or on behalf of the vendor for consumption off the premises of the\nvendor, serves or assists in serving, cooks, heats or provides other\nservices with respect to the food or drink; and\n (3) in those instances where the sale is made through a vending\nmachine that is activated by use of coin, currency, credit card or debit\ncard (except the sale of drinks in a heated state made through such a\nvending machine) or is for consumption off the premises of the vendor,\nexcept where food (other than sandwiches) or drink or both are (A) sold\nin an unheated state and, (B) are of a type commonly sold for\nconsumption off the premises and in the same form and condition,\nquantities and packaging, in establishments which are food stores other\nthan those principally engaged in selling foods prepared and ready to be\neaten.\n (ii) The tax imposed by this subdivision shall not apply to:\n (A) food or drink which is sold to an air line for consumption while\nin flight;\n * (B) food or drink sold to a student of a nursery school,\nkindergarten, elementary or secondary school at a restaurant or\ncafeteria located on the premises of such a school, or food or drink,\nother than beer, wine, or other alcoholic beverages, sold at a\nrestaurant, tavern or other establishment located on the premises of a\ncollege, university or a school (other than a nursery school,\nkindergarten, elementary or secondary school) to a student enrolled\ntherein who purchases such food or drink under a contractual arrangement\nwhereby the student does not pay cash at the time he is served, provided\nthe school, college or university described in this subparagraph is\noperated by an exempt organization described in subdivision (a) of\nsection eleven hundred sixteen, or is created, incorporated, registered,\nor licensed by the state legislature or pursuant to the education law or\nthe regulations of the commissioner of education, or is incorporated by\nthe regents of the university of the State of New York or with their\nconsent or the consent of the commissioner of education as provided in\nsection two hundred sixteen of the education law; and\n * NB Effective until June 1, 2026\n * (B) food or drink sold to a student of a nursery school,\nkindergarten, elementary or secondary school at a restaurant or\ncafeteria located on the premises of such a school, or food or drink,\nother than beer, wine, or other alcoholic beverages, sold at a\nrestaurant, tavern or other establishment located on the premises of a\ncollege, university or a school (other than a nursery school,\nkindergarten, elementary or secondary school) to a student enrolled\ntherein who purchases such food or drink under a contractual arrangement\nwhereby the student does not pay cash at the time such student is\nserved, including food sold to a student enrolled therein purchasing a\nmeal using an approved donation program of funds or food points,\nprovided the school, college or university described in this\nsubparagraph is operated by an exempt organization described in\nsubdivision (a) of section eleven hundred sixteen, or is created,\nincorporated, registered, or licensed by the state legislature or\npursuant to the education law or the regulations of the commissioner of\neducation, or is incorporated by the regents of the university of the\nState of New York or with their consent or the consent of the\ncommissioner of education as provided in section two hundred sixteen of\nthe education law; and\n * NB Effective June 1, 2026\n (C) Sales by a brewery licensed under section fifty-one of the\nalcoholic beverage control law, or a farm brewery licensed under section\nfifty-one-a of such law, of no more than four samples of beer not\nexceeding four fluid ounces each, and each sample shall be a different\nbeer than the others. Only a customer's first purchase during each\ncalendar day at each licensed entity shall be exempt under this\nsubparagraph.\n (e) (1) The rent for every occupancy of a room or rooms in a hotel or\nshort term rental unit in this state, except that the tax shall not be\nimposed upon (i) a permanent resident, or (ii) where the rent is not\nmore than at the rate of two dollars per day.\n (2) Except as provided in subdivision (r) of section eleven hundred\neleven of this part, when occupancy is provided, for a single\nconsideration, with property, services, amusement charges, or any other\nitems, the separate sale of which is not subject to tax under this\narticle, and the rent paid for such occupancy does not qualify for the\nexemption in subdivision (kk) of section eleven hundred fifteen of this\narticle, the entire consideration shall be treated as rent subject to\ntax under paragraph one of this subdivision; provided, however, that\nwhere the amount of the rent for occupancy is stated separately from the\nprice of such property, services, amusement charges, or other items, on\nany sales slip, invoice, receipt, or other statement given the occupant,\nand such rent is reasonable in relation to the value of such property,\nservices, amusement charges or other items, only such separately stated\nrent will be subject to tax under paragraph one of this subdivision.\n (f) (1) Any admission charge where such admission charge is in excess\nof ten cents to or for the use of any place of amusement in the state,\nexcept charges for admission to combative sports which charges are taxed\nunder any other law of this state, or dramatic or musical arts\nperformances, or live circus performances, or motion picture theaters,\nand except charges to a patron for admission to, or use of, facilities\nfor sporting activities in which such patron is to be a participant,\nsuch as bowling alleys and swimming pools. For any person having the\npermanent use or possession of a box or seat or a lease or a license,\nother than a season ticket, for the use of a box or seat at a place of\namusement, the tax shall be upon the amount for which a similar box or\nseat is sold for each performance or exhibition at which the box or seat\nis used or reserved by the holder, licensee or lessee, and shall be paid\nby the holder, licensee or lessee.\n (2) (i) The dues paid to any social or athletic club in this state if\nthe dues of an active annual member, exclusive of the initiation fee,\nare in excess of ten dollars per year, and on the initiation fee alone,\nregardless of the amount of dues, if such initiation fee is in excess of\nten dollars. Where the tax on dues applies to any such social or\nathletic club, the tax shall be paid by all members, other than honorary\nmembers, thereof regardless of the amount of their dues, and shall be\npaid on all dues or initiation fees for a period commencing on or after\nAugust first, nineteen hundred sixty-five. In the case of a life\nmembership, the tax shall be upon the amount paid as life membership\ndues, however, a life member, other than an honorary member, paying an\nannual sales tax, based on the dues of an active annual member, shall\ncontinue such payments until the total amount of such tax paid is equal\nto the amount of tax that would have otherwise been due had the tax been\nimposed at the time such paid life membership has been purchased and at\nthe then applicable rate.\n (ii) Dues and initiation fees paid to the following shall not be\nsubject to the tax imposed by this paragraph:\n (A) A fraternal society, order or association operating under the\nlodge system;\n (B) Any fraternal association of students of a college or university;\n (C) A homeowners association. For purposes of this subparagraph, a\nhomeowners association is an association (including a cooperative\nhousing or apartment corporation) (I) the membership of which is\ncomprised exclusively of owners or residents of residential dwelling\nunits, including owners of units in a condominium, and including\nshareholders in a cooperative housing or apartment corporation, where\nsuch units are located in a defined geographical area such as a housing\ndevelopment or subdivision and (II) which operates social or athletic\nfacilities located in such area for use (whether or not exclusive) by\nsuch owners or residents.\n (3) The amount paid as charges of a roof garden, cabaret or other\nsimilar place in the state.\n