§ 5-A — Certification of registration to collect sales and compensating use taxes by certain contractors, affiliates and subcontractors

§ 5-a. Certification of registration to collect sales and compensating\nuse taxes by certain contractors, affiliates and subcontractors. 1. For\npurposes of this section, the following terms shall have the specified\nmeanings:\n (a) "Affiliate" means a person which directly, indirectly or\nconstructively\n (1) controls another person;\n (2) is controlled by another person; or\n (3) is, along with another person, under the control of a common\nparent.\n "Control" means possession of the power to direct, or cause the\ndirection of, the management and policies of another person.\n (b) "Commodities" means commodities as defined in article eleven of\nthe state finance law.\n (c) (1) "Contract" means an agreement between a contractor and a\ncovered agency for the purchase by the covered agency, pursuant to\narticle eleven of the state finance law, of commodities or services\nhaving a value in excess of one hundred thousand dollars.\n The term "contract" shall also include a centralized contract, as\ndefined in article eleven of the state finance law, with a value in\nexcess of one hundred thousand dollars.\n (2) The term "contract" shall not include:\n (A) a purchase by a covered agency of commodities or services with a\nvalue in excess of one hundred thousand dollars based upon a formal\nmini-bid solicitation pursuant to a centralized contract;\n (B) a grant or an intergovernmental agreement; or\n (C) a purchase of commodities or services from a "preferred source,"\nas such term is defined in article eleven of the state finance law.\n (3) Multiple purchases of commodities or services by a covered agency\nfrom the same contractor during a state fiscal year shall not be\naggregated for purposes of determining whether the greater than one\nhundred thousand dollar threshold described in this subdivision has been\nmet.\n (d) "Contractor" means a person awarded a contract.\n (e) "Covered agency" means a "state agency" for purposes of article\neleven of the state finance law, the legislature, the judiciary, or a\npublic authority or public benefit corporation at least one of whose\nmembers is appointed by the governor.\n (f) "Department" means the department of taxation and finance.\n (g) "Person" means an individual, partnership, limited liability\ncompany, society, association, joint stock company, or corporation;\nprovided, however, that a "person" shall not include a "public\ncorporation" or an "education corporation," as such terms are defined in\nsection sixty-six of the general construction law, a not-for-profit\ncorporation whose contracts are subject to approval in accordance with\narticle eleven-B of the state finance law, a board of cooperative\neducational services created pursuant to article forty of the education\nlaw, or a soil and water conservation district created pursuant to\nsection five of the soil and water conservation districts law.\n (h) "Sales and compensating use taxes" means state and local sales and\ncompensating use taxes imposed by article twenty-eight and pursuant to\nthe authority of article twenty-nine of this chapter, which are\nadministered by the commissioner.\n (i) "Sales tax quarter" means a quarterly period ending on the last\nday of February, May, August or November.\n (j) "Services" means services as defined in article eleven of the\nstate finance law.\n (k) "Subcontractor" means a person engaged by a contractor or another\nsubcontractor to perform a portion of the contractor's obligations under\na contract.\n (l) "State" means the state of New York.\n (m) "Taxable services" means services, the receipts from the sale of\nwhich are taxable by article twenty-eight or article twenty-nine of this\nchapter.\n (n) The terms "receipts," "sale," "tangible personal property" and\n"vendor" have the meanings given in article twenty-eight of this\nchapter.\n 2. (a) Notwithstanding any provision of law to the contrary, before a\ncontract may take effect, the contractor must comply with the\nrequirements of subparagraphs one and two of this paragraph.\n (1) The contractor must file a written certification with the\ndepartment, made under penalty of perjury, stating that:\n (A) if the contractor made sales delivered by any means to locations\nwithin the state of tangible personal property or taxable services\nhaving a value in excess of three hundred thousand dollars during the\nimmediately preceding consecutive four sales tax quarters, the\ncontractor is registered for sales and compensating use tax purposes\nwith the department under sections eleven hundred thirty-four and twelve\nhundred fifty-three of this chapter. If the contractor did not make\nsales delivered by any means to locations within the state of tangible\npersonal property or taxable services having a value in excess of three\nhundred thousand dollars during such four sales tax quarters, then the\ncontractor shall so certify;\n (B) if any affiliate of the contractor made sales delivered by any\nmeans to locations within the state of tangible personal property or\ntaxable services having a value in excess of three hundred thousand\ndollars during the immediately preceding consecutive four sales tax\nquarters, to the best of the contractor's knowledge, each such affiliate\nis registered for sales and compensating use tax purposes with the\ndepartment under sections eleven hundred thirty-four and twelve hundred\nfifty-three of this chapter. If the contractor does not have any\naffiliates, or does not have any affiliates which made sales delivered\nby any means to locations within the state of tangible personal property\nor taxable services having a value in excess of three hundred thousand\ndollars during such four sales tax quarters, then the contractor shall\nso certify; and\n (C) if any subcontractor made sales delivered by any means to\nlocations within the state of tangible personal property or taxable\nservices having a value in excess of three hundred thousand dollars\nduring the immediately preceding consecutive four sales tax quarters, to\nthe best of the contractor's knowledge, each such subcontractor is\nregistered for sales and compensating use tax purposes with the\ndepartment under sections eleven hundred thirty-four and twelve hundred\nfifty-three of this chapter. If the contractor does not have any\nsubcontractors, or there are no subcontractors which made sales\ndelivered by any means to locations within the state of tangible\npersonal property or taxable services having a value in excess of three\nhundred thousand dollars during such four sales tax quarters, then the\ncontractor shall so certify.\n (D) The certification required by this subparagraph shall include such\nadditional information as the department deems necessary for the proper\nadministration of this section.\n (E) The certification required by this subparagraph need only be filed\nwith the department once and, once filed, shall be deemed to satisfy the\nrequirements of this subparagraph for purposes of any subsequent\ncontract to which the contractor is a party; provided, however, that if\nthe contractor, or an affiliate or subcontractor, is not certified as\nregistered with the department for sales and compensating use tax\npurposes on the contractor's original certification, and such\ncontractor, affiliate or subcontractor makes sales delivered by any\nmeans to locations within the state of tangible personal property or\ntaxable services having a value in excess of three hundred thousand\ndollars during any consecutive four sales tax quarters which follow the\nsales tax quarter in which the contractor's original certification was\nmade, then the contractor shall, as soon as possible after such\noccurrence, file an amended written certification with the department,\nmade under penalty of perjury, indicating that such contractor,\naffiliate or subcontractor, as applicable, is registered with the\ndepartment for sales and compensating use tax purposes.\n (2) The contractor shall also provide the procuring covered agency\nwith a written certification, made under penalty of perjury, stating\nthat:\n (A) the contractor has filed the certification prescribed by this\nsection with the department, and that such certification is correct and\ncomplete, or\n (B) such certification is not required to be filed with the\ndepartment, and explaining the reasons for such determination.\n (C) the certification required by this subparagraph shall be included\nin the procurement record (as such term is defined in article eleven of\nthe state finance law), or similar documentation if the state\ncomptroller is not required by law to approve the contract.\n (D) any question as to the accuracy of the contractor certification\ndescribed in clause (B) of this subparagraph shall be resolved by the\ncontracting covered agency, in consultation, as necessary, with the\nstate comptroller and the department.\n (b) A contractor, affiliate of the contractor, or subcontractor which\nregisters for sales and compensating use tax purposes under sections\neleven hundred thirty-four and twelve hundred fifty-three of this\nchapter in order to comply with the provisions of this subdivision shall\nbe a vendor and shall comply with and be subject to the provisions of\narticles twenty-eight and twenty-nine of this chapter.\n (c) The certification requirements prescribed by this subdivision in\norder for a contract to take effect shall be in addition to any other\nrequirements prescribed by law relating to the formation of contracts to\nwhich a covered agency is a party.\n 3. (a) If a contract has taken effect, and the terms of such contract\nprovide that it may be renewed upon expiration of an initial or\nsubsequent term, then the contractor shall, no later than the day prior\nto the commencement date of the applicable renewal term, certify to the\ncontracting covered agency in writing, and under penalty of perjury,\nthat:\n (1) the contractor has filed the certification prescribed by this\nsection with the department, and that such certification is correct and\ncomplete, or\n (2) that such certification is not required to be filed with the\ndepartment, and explains the reasons for such determination.\n (3) Any question as to the accuracy of the contractor certification\ndescribed in subparagraph two of this paragraph shall be resolved by the\ncontracting covered agency, in consultation, as necessary, with the\nstate comptroller and the department.\n (b) The certification required by paragraph (a) of this subdivision\nshall be made a part of the procurement record (as such term is defined\nin article eleven of the state finance law), or similar documentation if\nthe state comptroller is not required by law to approve the contract.\n (c) If the contractor fails to make the certification required by\nparagraph (a) of this subdivision, or if, during the term of the\ncontract, the department or the covered agency discovers that such\ncertification is false, then such failure or false certification shall\nbe a material breach of the contract, and the contract shall be subject\nto termination if the covered agency determines that such action is in\nthe best interests of the state.\n (d) A contractor, affiliate of the contractor, or subcontractor which\nregisters for sales and compensating use tax purposes under sections\neleven hundred thirty-four and twelve hundred fifty-three of this\nchapter in order to comply with the provisions of paragraph (a) of this\nsubdivision shall be a vendor and shall comply with and be subject to\nthe provisions of articles twenty-eight and twenty-nine of this chapter.\n 4. The provisions of this section shall not apply to a contract if the\nprocuring covered agency and the state comptroller, or other approving\nauthority if the state comptroller is not required to approve the\ncontract, find in writing that the contract is necessary to address an\n"emergency," within the meaning of article eleven of the state finance\nlaw, or to ensure the public health, safety or welfare. Such written\nfinding shall explain the reasons supporting such determination.\n