§ 1119 — Subject to the conditions and limitations provided for herein, a refund or credit shall be allowed for a tax paid pursuant to subdivision...

New York § 1119

• Jurisdiction: New York
• Law TAX: Tax
• Part 3: Exemptions
• Art. 28: Sales and Compensating Use Taxes

Text

§ 1119. (a) Subject to the conditions and limitations provided for\nherein, a refund or credit shall be allowed for a tax paid pursuant to\nsubdivision (a) of section eleven hundred five or section eleven hundred\nten (1) on the sale or use of tangible personal property if the\npurchaser or user, in the performance of a contract, later incorporates\nthat tangible personal property into real property located outside this\nstate, (2) on the sale or use of tangible personal property purchased in\nbulk, or any portion thereof, which is stored and not used by the\npurchaser or user within this state if that property is subsequently\nreshipped by such purchaser or user to a point outside this state for\nuse outside this state, (3) on the sale to or use by a contractor or\nsubcontractor of tangible personal property if that property is used by\nhim solely in the performance of a pre-existing lump sum or unit price\nconstruction contract, (4) on the sale or use within this state of\ntangible personal property, not purchased for resale, if the use of such\nproperty in this state is restricted to fabricating such property\n(including incorporating it into or assembling it with other tangible\npersonal property), processing, printing or imprinting such property and\nsuch property is then shipped to a point outside this state for use\noutside this state, or (6) on the sale of tangible personal property\npurchased for use in constructing, expanding or rehabilitating\nindustrial or commercial real property (other than property used or to\nbe used exclusively by one or more registered vendors primarily engaged\nin the retail sale of tangible personal property) located in an area\ndesignated as an empire zone pursuant to article eighteen-B of the\ngeneral municipal law, but only to the extent that such property becomes\nan integral component part of the real property. (For the purpose of\nclause (3) of the preceding sentence, the term "pre-existing lump sum or\nunit price construction contract" shall mean a contract for the\nconstruction of improvements to real property under which the amount\npayable to the contractor or subcontractor is fixed without regard to\nthe costs incurred by him in the performance thereof, and which (i) was\nirrevocably entered into prior to the date of the enactment of this\narticle or the enactment of a law increasing the rate of tax imposed\nunder this article, or (ii) resulted from the acceptance by a\ngovernmental agency of a bid accompanied by a bond or other performance\nguaranty which was irrevocably submitted prior to such date.) Where the\ntax on the sale or use of such tangible personal property has been paid\nto the vendor, to qualify for such refund or credit, such tangible\npersonal property must be incorporated into real property as required in\nclause (1) above, reshipped as required in clause (2) above, used in the\nmanner described in clauses (3), (4) and (6) above within three years\nafter the date such tax was payable to the tax commission by the vendor\npursuant to section eleven hundred thirty-seven. Where the tax on the\nsale or use of such tangible personal property was paid by the applicant\nfor the credit or refund directly to the tax commission, to qualify for\nsuch refund or credit, such tangible personal property must be\nincorporated into real property as required in clause (1) above,\nreshipped as required in clause (2) above, used in the manner described\nin clauses (3), (4) and (6) above within three years after the date such\ntax was payable to the tax commission by such applicant pursuant to this\narticle. An application for a refund or credit pursuant to this section\nmust be filed with such commission within the time provided by\nsubdivision (a) of section eleven hundred thirty-nine. Such application\nshall be in such form as the tax commission may prescribe. Where an\napplication for credit has been filed, the applicant may immediately\ntake such credit on the return which is due coincident with or\nimmediately subsequent to the time that he files his application for\ncredit. However, the taking of the credit on the return shall be deemed\nto be part of the application for credit and shall be subject to the\nprovisions in respect to applications for credit in section eleven\nhundred thirty-nine as provided in subdivision (e) of such section. With\nrespect to a sale or use described in clause (3) above where a\npre-existing lump sum or unit price construction contract was\nirrevocably entered into prior to the date of the enactment of this\narticle or the bid accompanied by the performance guaranty was\nirrevocably submitted to the governmental agency prior to such date, the\npurchaser or user shall be entitled to a refund or credit only of the\namount by which the tax on such sale or use imposed under this article\nplus any tax imposed under the authority of article twenty-nine exceeds\nthe amount computed by applying against such sale or use the local rate\nof tax, if any, in effect at the time such contract was entered into or\nsuch bid was submitted.\n In the case of the enactment of a law increasing the rate of tax\nimposed by this article, the purchaser or user shall be entitled only to\na refund or credit of the amount by which the increased tax on such sale\nor use imposed under this article plus any tax imposed under the\nauthority of article twenty-nine exceeds the amount computed by applying\nagainst such sale or use the state and local rates of tax in effect at\nthe time such contract was entered into or such bid was submitted.\n (b) Subject to the conditions and limitations provided for in this\nsubdivision, a refund or credit shall be allowed for a tax paid pursuant\nto subdivision (a) and paragraph three of subdivision (c) of section\neleven hundred five, or section eleven hundred ten of this article and\nany tax imposed pursuant to the authority of article twenty-nine of this\nchapter on the sale to or use by an omnibus carrier described in this\nsubdivision of any omnibus, and of parts, equipment, lubricants, motor\nfuel, diesel motor fuel, maintenance, servicing or repair purchased and\nused in the operation of any such omnibus by such carrier or on the sale\nto or use by a vessel operator described in this subdivision of a vessel\nwith a seating capacity of more than twenty passengers used for the\ntransportation on water of passengers for hire, and of parts, equipment,\nlubricants, diesel motor fuel, maintenance, servicing or repair\npurchased and used in the operation of any such vessel by such operator.\nAny such omnibus carrier or vessel operator must provide local transit\nservice in this state and operate pursuant to a certificate of public\nconvenience and necessity issued by the commissioner of transportation\nof this state or by a like officer or agency of the United States or\npursuant to the contract, franchise or consent between such carrier or\noperator and a city having a population of more than one million\ninhabitants, or any agency of such city. The amount of such refund or\ncredit shall be determined by first computing the local transit service\npercentage which shall be the proportion that, in the case of such a\ncarrier, such carrier's vehicle mileage or, in the case of such an\noperator, such operator's vessel hours in local transit service in this\nstate in the calendar year immediately preceding the end of the\nquarterly return period, prescribed by section eleven hundred thirty-six\nof this article, to which such refund or credit relates bears to such\ncarrier's total mileage operated in this state in such year or such\noperator's total hours operated in this state in such year, as the case\nmay be. An omnibus carrier or vessel operator which was not engaged in\nlocal transit service in the preceding calendar year shall determine\nsuch percentage with respect to its first four quarterly returns filed\npursuant to section eleven hundred thirty-six of this article, by using\nthe proportion that such carrier's vehicle mileage or such operator's\nvessel hours in local transit service in this state in the first three\nmonths of such operation bears to such carrier's total mileage or such\noperator's total hours operated in this state in such period. The amount\nof the refund or credit allowable on the combined state and local tax\npaid on such purchases or uses then shall be determined in accordance\nwith the following table:\nIf the local transit service The refund or credit is:\n percentage is:\nLess than 10 percent None\n10 percent 10 percent of such combined tax\nGreater than 10 percent but less 10 percent plus (the product of\n than 70 percent 1.5 times each whole percent\n in excess of 10 percent) of\n such combined tax\n70 percent or more 100 percent of such combined tax\nFor purposes of this subdivision, local transit service, vehicle\nmileage, vessel hours, total mileage operated and total hours operated\nshall be defined by rule or regulation of the commissioner and records\nsatisfactory to the commissioner shall be maintained by the carrier or\noperator. An application for a refund or credit pursuant to this\nsubdivision must be filed with the commissioner within the time provided\nby subdivision (a) of section eleven hundred thirty-nine of this\narticle. Such application shall be in such form as the commissioner may\nprescribe. Where an application for credit has been filed, the applicant\nmay immediately take such credit on the return which is due coincident\nwith or immediately subsequent to the time that the applicant files the\napplication for credit. However, the taking of the credit on the return\nshall be deemed to be part of the application for credit and shall be\nsubject to the provisions in respect to applications for credit in\nsection eleven hundred thirty-nine of this article as provided in\nsubdivision (e) of such section.\n (c) A refund or credit equal to the amount of sales or compensating\nuse tax imposed by this article and pursuant to the authority of article\ntwenty-nine, and paid on the sale or use of tangible personal property,\nshall be allowed the purchaser where such property is later used by the\npurchaser in performing a service subject to tax under paragraph (1),\n(2), (3), (5), (7) or (8) of subdivision (c) of section eleven hundred\nfive or under section eleven hundred ten and such property has become a\nphysical component part of the property upon which the service is\nperformed or has been transferred to the purchaser of the service in\nconjunction with the performance of the service subject to tax or if a\ncontractor, subcontractor or repairman purchases tangible personal\nproperty and later makes a retail sale of such tangible personal\nproperty, the acquisition of which would not have been a sale at retail\nto him but for the second to last sentence of subparagraph (i) of\nparagraph (4) of subdivision (b) of section eleven hundred one. An\napplication for the refund or credit provided for herein must be filed\nwith the commissioner of taxation and finance within the time provided\nby subdivision (a) of section eleven hundred thirty-nine. Such\napplication shall be in such form as the commissioner may prescribe.\nWhere an application for credit has been filed, the applicant may\nimmediately take such credit on the return which is due coincident with\nor immediately subsequent to the time that he files his application for\ncredit. However, the taking of the credit on the return shall be deemed\nto be part of the application for credit. The procedure for granting or\ndenying such applications for refund or credit and review of such\ndeterminations shall be as provided in subdivision (e) of section eleven\nhundred thirty-nine.\n (d) (1) Subject to the conditions and limitations provided for in this\nsection, a refund or credit will be allowed for taxes imposed on the\nretail sale of tangible personal property described in subdivision (a)\nof section eleven hundred five of this article, and on every sale of\nservices described in subdivisions (b) and (c) of such section, and\nconsideration given or contracted to be given for, or for the use of,\nsuch tangible personal property or services, where such tangible\npersonal property or services are sold to a qualified empire zone\nenterprise or to a qualified entity that is also a tenant in or part of\na New York state innovation hot spot as provided in section thirty-eight\nof this chapter or to a business located in a tax-free NY area approved\npursuant to article twenty-one of the economic development law, provided\nthat (A) such tangible personal property or tangible personal property\nupon which such a service has been performed or such service (other than\na service described in subdivision (b) of section eleven hundred five of\nthis article) is directly and predominantly, or such a service described\nin clause (A) or (D) of paragraph one of such subdivision (b) of section\neleven hundred five of this article is directly and exclusively, used or\nconsumed by (i) such qualified empire zone enterprise in an area\ndesignated as an empire zone pursuant to article eighteen-B of the\ngeneral municipal law with respect to which such enterprise is certified\npursuant to such article eighteen-B, or (ii) such qualified entity at\nits location in or as part of a New York state innovation hot spot, or\n(iii) such business at its location in such tax-free NY area, or (B)\nsuch a service described in clause (B) or (C) of paragraph one of\nsubdivision (b) of section eleven hundred five of this article is\ndelivered and billed to (i) such enterprise at an address in such empire\nzone or (ii) such qualified entity at its location in or as part of the\nNew York state innovation hot spot, or (iii) such business at its\nlocation in such tax-free NY area, or (C) the enterprise's place of\nprimary use of the service described in paragraph two of such\nsubdivision (b) of section eleven hundred five is at an address in such\nempire zone or at its location in or as part of a New York state\ninnovation hot spot, or at its location in such tax-free NY area;\nprovided, further, that, in order for a motor vehicle, as defined in\nsubdivision (c) of section eleven hundred seventeen of this article, or\ntangible personal property related to such a motor vehicle to be found\nto be used predominantly in such a zone, at least fifty percent of such\nmotor vehicle's use shall be exclusively within such zone or at least\nfifty percent of such motor vehicle's use shall be in activities\noriginating or terminating in such zone, or both; and either or both\nsuch usages shall be computed either on the basis of mileage or hours of\nuse, at the discretion of such enterprise. For purposes of this\nsubdivision, tangible personal property related to such a motor vehicle\nshall include a battery, diesel motor fuel, an engine, engine\ncomponents, motor fuel, a muffler, tires and similar tangible personal\nproperty used in or on such a motor vehicle.\n (2) Subject to the conditions and limitations provided for in this\nsection, a refund or credit will be allowed for taxes imposed on the\nretail sale of, and consideration given or contracted to be given for,\nor for the use of, tangible personal property sold to a contractor,\nsubcontractor or repairman for use in (A) erecting a structure or\nbuilding of a qualified empire zone enterprise or a business located in\na tax-free NY area approved pursuant to article twenty-one of the\neconomic development law, (B) adding to, altering or improving real\nproperty, property or land of such an enterprise or such business, or\n(C) maintaining, servicing or repairing real property, property or land\nof such an enterprise or of such business, as the terms real property,\nproperty or land are defined in the real property tax law; provided,\nhowever, no credit or refund will be allowed under this paragraph unless\nsuch tangible personal property is to become an integral component part\nof such structure, building, real property, property or land located in\nan area designated as an empire zone pursuant to article eighteen-B of\nthe general municipal law in, and with respect to which such enterprise\nis certified pursuant to such article eighteen-B, or in an area approved\nas a tax-free NY area pursuant to article twenty-one of the economic\ndevelopment law where such business is located.\n (3) Except as otherwise provided by law, the refund or credit provided\nfor in this subdivision will not apply to taxes imposed by paragraph ten\nof subdivision (c) of section eleven hundred five and eleven hundred\nseven of this article or to taxes imposed pursuant to the authority of\narticle twenty-nine of this chapter.\n (4) In those instances when the provisions of subdivision (w) of\nsection nine hundred fifty-nine of the general municipal law are\napplicable, no refund or credit will be allowed under this subdivision\nunless the qualified empire zone enterprise has been issued an empire\nzone retention certificate.\n (5) A taxpayer may not apply for a credit or refund under this\nsubdivision more frequently than once a sales tax quarter, pursuant to\nsubdivision (b) of section eleven hundred thirty-six of this article.\n (6) Any reference in this chapter or in any local law, ordinance or\nresolution enacted pursuant to the authority of article twenty-nine of\nthis chapter to former subdivision (z) of section eleven hundred fifteen\nof this article will be deemed to be a reference to this subdivision,\nand any such local law, ordinance or resolution which provides the\nexemptions described in former subdivision (z) of such section eleven\nhundred fifteen shall be deemed instead to provide the refunds and\ncredits described in this subdivision.\n (7) Notwithstanding any other provision in this article, article\ntwenty-nine of this chapter, or any other law to the contrary, a credit\nor refund for any sale or use under this section shall not be allowed to\na person that is first certified under article eighteen-B of the general\nmunicipal law on or after April first, two thousand nine, unless that\nsale or use is eligible for a credit or refund of the county or city\nsales and compensating use taxes imposed pursuant to the authority of\nsubpart b of part I of article twenty-nine of this chapter.\n (e) Subject to conditions and limitations provided in this\nsubdivision, a room remarketer shall be allowed a refund or credit\nagainst the amount of tax collected and required to be remitted under\nsection eleven hundred thirty-seven of this article in the amount of the\ntax it paid to an operator of a hotel under section eleven hundred four\nof this article, where applicable, and subdivision (e) of section eleven\nhundred five of this article. Provided, however, that, in order to\nqualify for a refund or credit under this subdivision for any sales tax\nquarterly period, the room remarketer must, for that quarter, (1) be\nregistered for sales tax purposes under section eleven hundred\nthirty-four of this article; (2) collect the taxes imposed by section\neleven hundred four of this article, where applicable, and subdivision\n(e) of section eleven hundred five of this article; and (3) furnish the\ncertificate of authority number of the operator to whom the applicant\npaid the tax in its application for refund or credit if required on that\nform or upon request. Provided that if the room remarketer requests the\noperator's certificate of authority number and is not provided with that\nnumber, the room remarketer may satisfy this requirement by providing\nthe operator's name, business address, telephone number, and the address\nof the hotel where the occupancy took place. An application for refund\nor credit under this subdivision must be filed with the commissioner\nwithin the time provided by subdivision (a) of section eleven hundred\nthirty-nine of this article. The application must be in the form\nprescribed by the commissioner. Where an application for credit has been\nfiled, the applicant may immediately take the credit on the return that\nis due coincident with or immediately subsequent to the time that the\napplicant files the application for credit. However, the taking of the\ncredit on the return is deemed to be part of the application for credit.\nThe procedure for granting or denying the applications for refund or\ncredit and review of those determinations shall be as provided in\nsubdivision (e) of section eleven hundred thirty-nine of this article.\nAn operator, including a room remarketer, who is paid tax by a room\nremarketer must upon request provide the remarketer with its certificate\nof authority number, provided that the operator's failure to do so does\nnot change the requirement set forth in paragraph three of this\nsubdivision.\n * (f)(1) Subject to the conditions and limitations provided for in\nthis section, a refund will be allowed for tax paid pursuant to\nsubdivision (a) of section eleven hundred five, or section eleven\nhundred ten of this article, on the purchase or use of tangible personal\nproperty sold to a participant who has received a certificate of\neligibility in the economic transformation and facility redevelopment\nprogram; provided that such tangible personal property has been used in\nconstructing, expanding or rehabilitating industrial or commercial real\nproperty located in an area designated as an economic transformation\narea pursuant to article eighteen of the economic development law, but\nonly to the extent that such tangible personal property becomes an\nintegral component part of such real property. Such tangible personal\nproperty must be purchased, or contracted to be purchased, after the\nparticipant receives its certificate of eligibility and before the\nissuance of a certificate of occupancy and it must be used in a manner\nconsistent with the participant's application for such constructed,\nexpanded, or rehabilitated real property.\n (2) Subject to the conditions and limitations provided for in this\nsection, a refund will be allowed for taxes imposed on receipts from the\nretail sale of, and consideration given or contracted to be given for,\nor for the use of, tangible personal property sold to a contractor,\nsubcontractor or repairman for use in (A) erecting a structure or\nbuilding of a participant who has received a certificate of eligibility,\nor (B) adding to, altering or improving real property, property or land\nof such a participant, as the terms real property, property or land are\ndefined in the real property tax law; provided, however, no refund will\nbe allowed under this paragraph unless such tangible personal property\nhas become an integral component part of such structure, building, real\nproperty, property or land located within an economic transformation\narea as defined by article eighteen of the economic development law in,\nand with respect to which such participant has been issued a certificate\nof eligibility pursuant to such article eighteen and only to the extent\nthat such property is used in a manner consistent with the participant's\napplication. Such tangible personal property must be in the contractor's\ninventory on or after the day the participant receives its certificate\nof eligibility, or be purchased or contracted to be purchased after the\nparticipant receives its certificate of eligibility, but such property\nmust meet the conditions of the preceding sentence and be used before\nthe issuance of a certificate of occupancy for such constructed,\nexpanded, or rehabilitated real property.\n (3) Notwithstanding any other provision of law, the refund provided\nfor in this subdivision shall not apply to the taxes imposed by section\neleven hundred seven or eleven hundred nine of this article or to any\ntax imposed pursuant to the authority of article twenty-nine of this\nchapter.\n (4) Notwithstanding any other provision of law, where the tax on the\nsale or use of such tangible personal property has been paid to the\nvendor, to qualify for such refund, such tangible personal property must\nbe incorporated into real property and used as required in paragraphs\none and two of this subdivision within three years after the date such\ntax was payable to the commissioner by the vendor pursuant to section\neleven hundred thirty-seven of this article. Where the tax on the sale\nor use of such tangible personal property was paid by the applicant for\nthe refund directly to the commissioner, to qualify for such refund,\nsuch tangible personal property must be incorporated into real property\nand used in the manner described in paragraphs one and two of this\nsubdivision within three years after the date such tax was payable to\nthe commissioner by such applicant pursuant to this article. An\napplication for a refund pursuant to this section must be filed with the\ncommissioner within the time provided by subdivision (a) of section\neleven hundred thirty-nine of this article. Such application shall be in\nsuch form as the commissioner may prescribe. This application will be\nthe only means of applying for the refund allowed by this section; the\napplicant may not take this refund in any other manner, including the\ntaking of a credit on any return due pursuant to section eleven hundred\nthirty-six of this article. A taxpayer may not apply for a refund under\nthis subdivision more frequently than once a sales tax quarterly period\nas described in subdivision (b) of section eleven hundred thirty-six of\nthis article.\n (5) The terms "participant", "economic transformation area", and\n"certificate of eligibility" shall have the same meaning as those terms\nhave in section four hundred of the economic development law.\n * NB Repealed December 31, 2026\n