Bill Text: NY A00160 | 2009-2010 | General Assembly | Amended
Bill Title: Relates to the definition of presence in New York in determining a taxpayer's New York residency status; adds filing fees for partnerships; enacts reforms to the empire zones program; relates to conforming the definition of manufacturing for purposes of tax credits under article 9-A of the tax law; excludes generation and distribution of electricity; provides for exemption from franchise tax for certain town or county cooperative insurance companies; increases the rate of the premiums tax on certain insurance companies; eliminates the franchise tax imposed on life insurance companies; relates to tax collection and offset agreements with the United States and other states; relates to the treatment of overcapitalized captive insurance companies; limits various under-utilized tax credits; requires nonresident individuals to include as income the gain or loss from the sale of a partnership, limited liability corporation, S corporation with 100 or fewer shareholders to the extent that the gain or loss includes gain or loss from real property located in New York state; changes the percentage used to compute the mandatory first installment of franchise tax and the metropolitan commuter transportation district business tax surcharge under articles 9, 9-A, 32 and 33; relates to a credit against income tax for persons or entities investing in low-income housing; provides for a five hundred dollar threshold for a sales and compensating use tax exemption for clothing and footwear for two, one week exemption periods; imposes state and local sales and compensating use taxes on certain personal services; hair, manicures, pedicures, beauty, massage services, credit rating services; exempts personal services that are rendered by a physician or other person licensed under title 8 of the education law; repeals provisions of the administrative code relating to sales and use taxes; relates to limiting itemized deductions for certain taxpayers and determining the amount of estimated tax installments to be paid; relates to the treatment of income received by partners for performing investment management services as New York source income received for services; provides a tax credit for increasing research activities; relates to qualified emerging technology company facilities, operations and training credits; relates to imposing a tax on cable television service; relates to tobacco products, cigarette taxes, and the manner in which cigars are taxed; includes the amount of any discount given for a coupon in the amounts subject to the sales and compensating use taxes; relates to investment of lottery moneys available and retained on deposit for the payment of lottery prizes; such moneys may be invested or caused to be invested in obligations by the comptroller as provided or in other investments with the care, skill, prudence and diligence of a prudent person acting in like capacity; such investments may be made by a money manager or other advisor recommended by the lottery division and approved by the comptroller; relates to the operation of video lottery gaming; makes technical corrections regarding the operation of video lottery gaming and approving the construction or alteration of any facility housing video lottery gaming; amends chapter 383 of the laws of 2001, authorizes the division of the lottery to conduct a pilot program involving the operation of video lottery terminals at certain racetracks; expands the definition of "vendor" for purposes of the sales and compensating use taxes; authorizes video lottery gaming at Belmont Park; relates to taxing flavored malt beverages at the low liquor tax rate; relates to extending certain provisions of the racing, pari-mutuel wagering and breeding law; increases the percentage for computing receipts and considerations for certain taxes; attempts to curtail certain sales and compensating use tax avoidance schemes; repeals sales and compensating use tax credit and refund for bad debt for purchases made by private label credit cards; provides for the taxation of digital products; removes the cap on the taxation of motor fuel and diesel motor fuel; authorizes the commissioner of taxation and finance to require the use of decals as evidence that a carrier has a valid certificate of registration for each motor vehicle operated or to be operated on the public highways of this state; imposes state sales and compensating use tax surcharge on certain beverage products; 18% on fruit drinks that contain less than 70% of natural fruit juice and soft drinks, soda and beverages that are ordinarily dispensed at soda fountains; does not apply to diet soda; raises replacement certificates of registration from four dollars to fifteen dollars for motor vehicles and for any trailer, semi-trailer, dolly or other device drawn thereby; imposes an additional rate of sales tax on certain luxury property; eliminates the expiration of and make permanent the provisions of law authorizing the quick draw lottery game; eliminates restrictions on the manner in which the quick draw lottery game is authorized to be conducted; relates to participation in more than one joint, multi-jurisdictional and out of state lottery; allows for participation in more than one such group at any time; creates a new grocery store or drug store wine license; provides schedule of fees for stores in business for less than twelve months and for stores in business for twelve months and longer; increases taxes paid by distributors of beer and wine; provides for a special floor tax to be imposed on beer and wine products under contract but not delivered prior to the effective date of the tax increase; increases the special tax on passenger car rentals from 5% to 6% of the receipts therefrom; relates to imposing a sales and compensating use tax on certain transportation services; expands sales taxes on certain amusement charges; relates to narrowing the sales tax definition and treatment of capitol improvements; imposes higher penalties for tax scofflaws.
Spectrum: Committee Bill
Status: (Introduced - Dead) 2009-01-21 - print number 160a [A00160 Detail]
Download: New_York-2009-A00160-Amended.html
S T A T E O F N E W Y O R K ________________________________________________________________________ S. 60--A A. 160--A S E N A T E - A S S E M B L Y (PREFILED) January 7, 2009 ___________ IN SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti- cle seven of the Constitution -- read twice and ordered printed, and when printed to be committed to the Committee on Finance -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee IN ASSEMBLY -- A BUDGET BILL, submitted by the Governor pursuant to article seven of the Constitution -- read once and referred to the Committee on Ways and Means -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the tax law and the administrative code of the city of New York, in relation to the definition of presence in New York in determining a taxpayer's New York residency status (Part A); to amend the tax law, in relation to conforming the definition of manufacturing under the capital base to the definition of manufacturing under the entire net income base (Part B); to amend the tax law, in relation to the exemption from the franchise tax on insurance corporations under article thirty-three of such law for town or county cooperative insur- ance corporations (Part C); to amend the tax law, in relation to increasing the rate of the premiums tax on certain insurance companies and eliminating the franchise tax imposed on life insurance companies, and to repeal certain provisions of the tax law relating thereto (Part D); to amend the tax law, in relation to collection and offset agree- ments with the United States or other states (Part E); to amend the tax law, in relation to the treatment of overcapitalized captive insurance companies (Part F); to amend the tax law, in relation to limiting various underutilized tax credits (Part G); to amend the tax law, in relation to requiring nonresidents to include as a source of income the gain or loss from the sale of a partnership, limited liability corporation, S corporation or a non-publicly traded C corpo- ration with one hundred or fewer shareholders to the extent that the gain or loss includes gain or loss from real property located in New York (Part H); to amend the tax law, in relation to changing the percentage used to complete the mandatory first installment of fran- chise tax and the metropolitan commuter transportation district busi- ness tax surcharge under articles 9, 9-A, 32 and 33 (Part I); to amend EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD12374-02-9 S. 60--A 2 A. 160--A the tax law, in relation to adding filing fees for partnerships (Part J); to amend the general municipal law and the tax law, in relation to enacting reforms to the empire zones program; and to repeal certain provisions of such laws relating thereto (Part K); to amend the public housing law, in relation to providing a credit against income tax for persons or entities investing in low-income housing (Part L); to amend the tax law and the administrative code of the city of New York, in relation to limiting itemized deductions for certain taxpayers and determining the amount of estimated tax installments to be paid (Part M); to amend the tax law, in relation to the treatment of income received by partners for performing investment management services as New York source income received for the performance of services (Part N); to amend the tax law, in relation to providing taxpayers with a credit for increasing research activities (Part O); to amend the tax law, in relation to the qualified emerging technology company facili- ties, operations and training credit (Part P); to amend the tax law, in relation to imposing sales tax on cable television service (Part Q); to amend the tax law, in relation to the tobacco products and cigarette taxes to remedy various compliance and enforcement problems and in relation to taxing cigars by unit rather than by a percentage of the wholesale price (Part R); to amend the tax law, in relation to including the amount of any discount given for a coupon in the amounts subject to the sales and compensating use taxes (Part S); to amend the state finance law, in relation to investment of lottery moneys avail- able and retained on deposit for the payment of lottery prizes (Part T); to amend the tax law, in relation to replacing the year-round sales and compensating use tax exemption for clothing and footwear under one hundred ten dollars with two one-week exemption periods with a five hundred dollar threshold and authorizing counties and cities that impose such taxes to elect or decline such exemption weeks; and to repeal subdivision (k) of section 1210 of such law relating thereto (Part U); to amend the tax law, in relation to imposing state and local sales and compensating use taxes on certain personal services and credit rating and reporting services currently imposed by a city of one million or more, and to repeal section 11-2002 and subchapter 3 of chapter 20 of title 11 of the administrative code of the city of New York, relating to that city's sales and use taxes on those personal services and credit rating and reporting services (Part V); to amend the tax law, in relation to making technical corrections regarding the operation of video lottery gaming and approving the construction or alteration of any facility housing video lottery gaming; and to amend chapter 383 of the laws of 2001, amending the tax law and other laws relating to authorizing the division of the lottery to conduct a pilot program involving the operation of video lottery terminals at certain racetracks, in relation to the effectiveness thereof; and to repeal certain provisions of the tax law relating thereto (Part W); to amend the tax law and the alcoholic beverage control law, in relation to taxing flavored malt beverages at the low liquor tax rate (Part X); to amend the racing, pari-mutuel wagering and breeding law in relation to licenses for simulcast facilities, sums relating to track simulcast, simulcast of out-of-state thorough- bred races, simulcasting of races run by out-of-state harness tracks and distributions of wagers; to amend chapter 281 of the laws of 1994 amending the racing, pari-mutuel wagering and breeding law and other laws relating to simulcasting and to amend chapter 346 of the laws of 1990 amending the racing, pari-mutuel wagering and breeding law and S. 60--A 3 A. 160--A other laws relating to simulcasting and the imposition of certain taxes, in relation to extending certain provisions thereof; and to amend the racing, pari-mutuel wagering and breeding law, in relation to extending certain provisions thereof (Part Y); to amend the tax law, in relation to changing the rate of the prepaid sales tax on cigarettes (Part Z); to amend the tax law, in relation to curtailing certain abusive sales and use tax avoidance schemes by narrowing the use tax non-resident exemption for certain items of tangible personal property and the sales tax exemption for commercial aircraft (Part AA); to repeal subdivision (e-1) of section 1132 of the tax law relat- ing to a sales tax bad debt credit or refund for purchases made by private label credit cards (Part BB); to amend the tax law and the rural electric cooperative law, in relation to imposing sales and compensating use tax on digital products and clarifying the corpo- ration franchise tax treatment of these products (Part CC); to amend the tax law, chapter 35 of the laws of 2006 amending the tax law relating to computing sales and compensating use tax on motor fuel and diesel motor fuel and amending the tax law and the general business law relating to requiring retail dealers of motor fuel and diesel motor fuel to reduce prices for such fuel, and chapter 109 of the laws of 2006 amending the tax law and other laws relating to the sales tax imposed on motor fuel and diesel motor fuel, in relation to repealing the state and any local sales and compensating use tax cap on motor fuel and diesel motor fuel and restoring the percentage rate of those taxes on those fuels (Part DD); to amend the tax law, in relation to reauthorizing the commissioner of taxation and finance to require the use of decals in certain instances (Part EE); to amend the tax law, in relation to expanding the definition of vendor for purposes of the sales and compensating use taxes (Part FF); to amend the racing, pari- mutuel wagering and breeding law and the tax law, in relation to authorizing video lottery gaming at Belmont Park (Part GG); to amend the tax law and the state finance law, in relation to imposing a state sales and compensating use tax surcharge on certain beverage products (Part HH); to amend chapter 405 of the laws of 1999, amending the real property tax law relating to improving the administration of the school tax relief (STAR) program, in relation to eliminating the expi- ration and repeal of the Quick Draw lottery game; and to amend the tax law, in relation to the game of Quick Draw (Part II); to amend the tax law, in relation to participation in more than one joint, multi-juris- diction and out-of-state lottery (Part JJ); to amend the alcoholic beverage control law, in relation to creating a new grocery or drug store wine license (Part KK); to amend the tax law, in relation to taxes on beer and wine under article 18 of the tax law (Part LL); to amend the tax law, in relation to the special tax on passenger car rentals under article 28-A of such law (Part MM); to amend the tax law, in relation to imposing state and local sales taxes on certain transportation services (Part NN); to amend the tax law, in relation to expanding sales taxes on certain amusement charges; and to repeal sections 1122 and 1123 of such law relating thereto (Part OO); to amend the tax law, in relation to narrowing the sales taxes definition and treatment of capital improvement (Part PP); to amend the tax law, in relation to the fees for replacement highway use tax credentials (Part QQ); to amend the tax law, in relation to imposing an additional rate of sales tax on certain luxury property (Part RR); and to amend the tax law, in relation to reporting information regarding deposits and bank settlements (Subpart A); to amend the tax law, in relation to S. 60--A 4 A. 160--A authorizing the use of generally accepted statistical sampling to determine the amount of sales and compensating use tax due under arti- cles 28 and 29 of such law (Subpart B); to amend the tax law, in relation to imposing a penalty for failure to keep mandatory records, to provide records in auditable format or to provide access to manda- tory records maintained electronically (Subpart C); to amend the tax law, in relation to the failure of a responsible person to collect and pay over withholding tax (Subpart D); to amend the tax law, in relation to certain penalties; to amend chapter 61 of the laws of 2005 amending the tax law relating to certain transactions and related information, in relation to making the penalty amount for aiding or assisting in the giving of fraudulent returns permanent; and to repeal certain provisions of the tax law relating thereto (Subpart E); to amend the tax law, in relation to providing expedited hearings relat- ing to cancellations, revocations, or suspensions of certain creden- tials and to penalties imposed on persons who aid or assist in the filing of fraudulent tax documents (Subpart F); to amend the tax law, in relation to establishing an award program for significant informa- tion concerning noncompliance with the tax laws of the state of New York (Subpart G); to amend the tax law, in relation to changing the last quarterly withholding filing date for employers (Subpart H); to amend the tax law, in relation to a branch or separate office of a bank (Subpart I); to amend the criminal procedure law, the penal law and the tax law, in relation to creating the offense of "tax fraud act"; to amend the tax law, in relation to simplifying and consolidat- ing the provisions describing the acts that constitute offenses under such law; and to repeal certain provisions of the tax law relating thereto (Subpart J); to amend the county law, in relation to authoriz- ing district attorneys to appoint attorneys employed by the department of taxation and finance as special assistant district attorneys in tax cases (Subpart K); to amend the tax law, in relation to clarifying some technical aspects of the voluntary disclosure and compliance program (Subpart L); to amend the tax law, abandoned property law, environmental conservation law, insurance law, lien law, mental hygiene law, public health law, real property tax law, social services law, state finance law and the administrative code of the city of New York, in relation to decreasing the overpayment and increasing the underpayment rates of interest, changing the overpayment interest accrual date for sales and compensating use taxes and providing for an interest-free period for refunds or credits of sales and compensating use taxes (Subpart M); to amend the tax law, in relation to requiring certain third-parties to file information returns providing informa- tion about vendors, hotel operators and recipients of amusement charg- es (Subpart N); to amend the tax law, in relation to the filing of tax warrants and related records in the department of state; and to repeal section 6 of such law relating thereto (Subpart O); and to amend the tax law, in relation to the collection of a penalty and interest on sales and use taxes upon a bulk sale of assets (Subpart P) (Part SS) THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. This act enacts into law major components of legislation 2 which are necessary to implement the state fiscal plan for the 2009-2010 3 state fiscal year. Each component is wholly contained within a Part S. 60--A 5 A. 160--A 1 identified as Parts A through SS. The effective date for each particular 2 provision contained within such Part is set forth in the last section of 3 such Part. Any provision in any section contained within a Part, includ- 4 ing the effective date of the Part, which makes a reference to a section 5 "of this act", when used in connection with that particular component, 6 shall be deemed to mean and refer to the corresponding section of the 7 Part in which it is found. Section three of this act sets forth the 8 general effective date of this act. 9 PART A 10 Section 1. Subparagraph (A) of paragraph 1 of subsection (b) of 11 section 605 of the tax law, as amended by chapter 760 of the laws of 12 1992, is amended to read as follows: 13 (A) who is domiciled in this state, unless (i) [he] THE TAXPAYER main- 14 tains no permanent place of abode in this state, maintains a permanent 15 place of abode elsewhere, and spends in the aggregate not more than 16 thirty days of the taxable year in this state, or (ii) (I) within any 17 period of five hundred forty-eight consecutive days [he] THE TAXPAYER is 18 present in a foreign country or countries for at least four hundred 19 fifty days, and (II) during [such] THE period of five hundred forty- 20 eight consecutive days [he is] THE TAXPAYER, THE TAXPAYER'S SPOUSE 21 (UNLESS THE SPOUSE IS LEGALLY SEPARATED) AND THE TAXPAYER'S MINOR CHIL- 22 DREN ARE not present in this state for more than ninety days [and does 23 not maintain a permanent place of abode in this state at which his 24 spouse (unless such spouse is legally separated) or minor children are 25 present for more than ninety days], and (III) during the nonresident 26 portion of the taxable year with or within which [such] THE period of 27 five hundred forty-eight consecutive days begins and the nonresident 28 portion of the taxable year with or within which [such] THE period ends, 29 [he] THE TAXPAYER is present in this state for a number of days which 30 does not exceed an amount which bears the same ratio to ninety as the 31 number of days contained in [such] THAT portion of the taxable year 32 bears to five hundred forty-eight, or 33 S 2. Paragraph 1 of subsection (a) of section 1305 of the tax law, as 34 amended by chapter 790 of the laws of 1978, is amended to read as 35 follows: 36 (1) who is domiciled in the city wherein the tax is imposed, unless 37 (A) [he] THE TAXPAYER maintains no permanent place of abode in [such] 38 THE city, maintains a permanent place of abode elsewhere, and spends in 39 the aggregate not more than thirty days of the taxable year in [such] 40 THE city, or (B) (i) within any period of five hundred forty-eight 41 consecutive days [he] THE TAXPAYER is present in a foreign country or 42 countries for at least four hundred fifty days, and (ii) during such 43 period of five hundred forty-eight consecutive days [he is] THE TAXPAY- 44 ER, THE TAXPAYER'S SPOUSE (UNLESS THE SPOUSE IS LEGALLY SEPARATED) AND 45 THE TAXPAYER'S MINOR CHILDREN ARE not present in [such] THE city for 46 more than ninety days [and does not maintain a permanent place of abode 47 in such city at which his spouse (unless such spouse is legally sepa- 48 rated) or minor children are present for more than ninety days], and 49 (iii) during any period of less than twelve months, which would be 50 treated as a separate taxable period pursuant to section thirteen 51 hundred seven, and which period is contained within [such] THE period of 52 five hundred forty-eight consecutive days, [he] THE TAXPAYER is present 53 in [such] THE city for a number of days which does not exceed an amount 54 which bears the same ratio to ninety as the number of days contained in S. 60--A 6 A. 160--A 1 [such] THAT period of less than twelve months bears to five hundred 2 forty-eight, or 3 S 3. Subparagraph (A) of paragraph 1 of subdivision (b) of section 4 11-1705 of the administrative code of the city of New York, as amended 5 by chapter 333 of the laws of 1987, is amended to read as follows: 6 (A) who is domiciled in this city, unless (i) [he] THE TAXPAYER main- 7 tains no permanent place of abode in this city, maintains a permanent 8 place of abode elsewhere, and spends in the aggregate not more than 9 thirty days of the taxable year in this city, or (ii) (I) within any 10 period of five hundred forty-eight consecutive days [he] THE TAXPAYER is 11 present in a foreign country or countries for at least four hundred 12 fifty days, and (II) during [such] THE period of five hundred forty- 13 eight consecutive days [he is] THE TAXPAYER, THE TAXPAYER'S SPOUSE 14 (UNLESS THE SPOUSE IS LEGALLY SEPARATED) AND THE TAXPAYER'S MINOR CHIL- 15 DREN ARE not present in this city for more than ninety days [and does 16 not maintain a permanent place of abode in this city at which his spouse 17 (unless such spouse is legally separated) or minor children are present 18 for more than ninety days], and (III) during any period of less than 19 twelve months, which would be treated as a separate taxable period 20 pursuant to section 11-1754, and which period is contained within [such] 21 THE period of five hundred forty-eight consecutive days, [he] THE 22 TAXPAYER is present in this city for a number of days which does not 23 exceed an amount which bears the same ratio to ninety as the number of 24 days contained in [such] THAT period of less than twelve months bears to 25 five hundred forty-eight, or 26 S 4. Paragraph 1 of subsection (a) of section 1325 of the tax law, as 27 added by chapter 345 of the laws of 1984, is amended to read as follows: 28 (1) who is domiciled in the city wherein the city income tax surcharge 29 is imposed pursuant to the authority of this article, unless (A) [he] 30 THE TAXPAYER maintains no permanent place of abode in such city, main- 31 tains a permanent place of abode elsewhere, and spends in the aggregate 32 not more than thirty days of the taxable year in [such] THE city, or 33 (B)(i) within any period of five hundred forty-eight consecutive days 34 [he is] THE TAXPAYER, THE TAXPAYER'S SPOUSE (UNLESS THE SPOUSE IS LEGAL- 35 LY SEPARATED) AND THE TAXPAYER'S MINOR CHILDREN ARE present in a foreign 36 country or countries for at least four hundred fifty days, and (ii) 37 during [such] THE period of five hundred forty-eight consecutive days 38 [he] THE TAXPAYER is not present in [such] THE city for more than ninety 39 days [and does not maintain a permanent place of abode in such city at 40 which his spouse (unless such spouse is legally separated) or minor 41 children are present for more than ninety days], and (iii) during any 42 period of less than twelve months, which would be treated as a separate 43 taxable period pursuant to section thirteen hundred twenty-seven of this 44 article, and which period is contained within [such] THE period of five 45 hundred forty-eight consecutive days, [he] THE TAXPAYER is present in 46 [such] THE city for a number of days which does not exceed an amount 47 which bears the same ratio to ninety as the number of days contained in 48 [such] THAT period of less than twelve months bears to five hundred 49 forty-eight, or 50 S 5. Paragraph 1 of subsection (f) of section 1 contained in 51 subsection (c) of section 1340 of the tax law, as added by chapter 345 52 of the laws of 1984, is amended to read as follows: 53 (1) who is domiciled in the city, unless (A) [he] THE TAXPAYER main- 54 tains no permanent place of abode in the city, maintains a permanent 55 place of abode elsewhere, and spends in the aggregate not more than 56 thirty days of the taxable year in the city, or (B) (i) within any peri- S. 60--A 7 A. 160--A 1 od of five hundred forty-eight consecutive days [he] THE TAXPAYER is 2 present in a foreign country or countries for at least four hundred 3 fifty days, and (ii) during such period of five hundred forty-eight 4 consecutive days [he is] THE TAXPAYER, THE TAXPAYER'S SPOUSE (UNLESS THE 5 SPOUSE IS LEGALLY SEPARATED) AND THE TAXPAYER'S MINOR CHILDREN ARE not 6 present in the city for more than ninety days [and does not maintain a 7 permanent place of abode in the city at which his spouse (unless such 8 spouse is legally separated) or minor children are present for more than 9 ninety days], and (iii) during any period of less than twelve months, 10 which would be treated as a separate taxable period based on a change of 11 resident status, and which period is contained within [such] THE period 12 of five hundred forty-eight consecutive days, [he] THE TAXPAYER is pres- 13 ent in the city for a number of days which does not exceed an amount 14 which bears the same ratio to ninety as the number of days contained in 15 [such] THAT period of less than twelve months bears to five hundred 16 forty-eight, or 17 S 6. This act shall take effect immediately and apply to taxable years 18 beginning on or after January 1, 2009. 19 PART B 20 Section 1. Subparagraph 2 of paragraph (b) of subdivision 1 of section 21 210 of the tax law, as amended by section 1 of part GG-1 of chapter 57 22 of the laws of 2008, is amended to read as follows: 23 (2) For purposes of subparagraph one of this paragraph, the term 24 "manufacturer" shall mean a taxpayer which during the taxable year is 25 principally engaged in the production of goods by manufacturing, proc- 26 essing, assembling, refining, mining, extracting, farming, agriculture, 27 horticulture, floriculture, viticulture or commercial fishing. HOWEVER, 28 THE GENERATION AND DISTRIBUTION OF ELECTRICITY, THE DISTRIBUTION OF 29 NATURAL GAS, AND THE PRODUCTION OF STEAM ASSOCIATED WITH THE GENERATION 30 OF ELECTRICITY ARE NOT QUALIFYING ACTIVITIES FOR A MANUFACTURER UNDER 31 THIS SUBPARAGRAPH. Moreover, for purposes of computing the capital base 32 in a combined report, the combined group shall be considered a "manufac- 33 turer" for purposes of this subparagraph only if the combined group 34 during the taxable year is principally engaged in the activities set 35 forth in this subparagraph, or any combination thereof. A taxpayer or a 36 combined group shall be "principally engaged" in activities described 37 above if, during the taxable year, more than fifty percent of the gross 38 receipts of the taxpayer or combined group, respectively, are derived 39 from receipts from the sale of goods produced by such activities. In 40 computing a combined group's gross receipts, intercorporate receipts 41 shall be eliminated. A "qualified New York manufacturer" is a manufac- 42 turer that has property in New York that is described in clause (A) of 43 subparagraph (i) of paragraph (b) of subdivision twelve of this section 44 and either (i) the adjusted basis of that property for federal income 45 tax purposes at the close of the taxable year is at least one million 46 dollars or (ii) all of its real and personal property is located in New 47 York. In addition, a "qualified New York manufacturer" means a taxpayer 48 that is defined as a qualified emerging technology company under para- 49 graph (c) of subdivision one of section thirty-one hundred two-e of the 50 public authorities law regardless of the ten million dollar limitation 51 expressed in subparagraph one of such paragraph. 52 S 2. This act shall take effect immediately and shall apply to taxable 53 years beginning on or after January 1, 2009. S. 60--A 8 A. 160--A 1 PART C 2 Section 1. Paragraph 7 of subdivision (a) of section 1512 of the tax 3 law, as amended by chapter 817 of the laws of 1987, is amended to read 4 as follows: 5 (7) a town or county cooperative insurance corporation as heretofore 6 contemplated by section one hundred eighty-seven of this chapter in 7 effect immediately prior to January first, nineteen hundred 8 seventy-four, THAT PROPERLY REPORTED TO THE SUPERINTENDENT OF INSURANCE 9 TOTAL DIRECT PREMIUMS WRITTEN FOR THE TAXABLE YEAR OF TWENTY-FIVE 10 MILLION DOLLARS OR LESS. 11 S 2. This act shall take effect immediately and apply to taxable years 12 beginning on or after January 1, 2009. 13 PART D 14 Section 1. Subdivisions (g), (h), (i) and (j) of section 1500, and 15 sections 1501, 1502, 1502-a, 1503, 1504, and 1505 of the tax law are 16 REPEALED. 17 S 2. Subdivision (e) of section 1500 of the tax law, as amended by 18 section 1 of part H3 of chapter 62 of the laws of 2003, is amended to 19 read as follows: 20 (e) The term "taxpayer" means any insurance corporation subject to the 21 tax imposed under section [fifteen hundred one, fifteen hundred two-a, 22 or] fifteen hundred ten or any captive insurance company subject to the 23 tax imposed under section fifteen hundred two-b of this article. 24 S 3. Subdivision (a) of section 1502-b of the tax law, as separately 25 amended by section 3 of part H1 of chapter 62 and chapter 188 of the 26 laws of 2003, is amended to read as follows: 27 (a) In lieu of the [taxes] TAX and tax surcharge imposed by sections 28 [fifteen hundred one, fifteen hundred two-a,] fifteen hundred five-a[,] 29 and fifteen hundred ten of this article, every captive insurance company 30 licensed by the superintendent of insurance pursuant to the provisions 31 of article seventy of the insurance law, other than the metropolitan 32 transportation authority and a public benefit corporation or not-for- 33 profit corporation formed by a city with a population of one million or 34 more pursuant to subsection (a) of section seven thousand five of the 35 insurance law, each of which is expressly exempt from the payment of 36 fees, taxes or assessments whether state or local, shall, for the privi- 37 lege of exercising its corporate franchise, pay a tax on (1) all gross 38 direct premiums, less return premiums thereon, written on risks located 39 or resident in this state and (2) all assumed reinsurance premiums, less 40 return premiums thereon, written on risks located or resident in this 41 state. The rate of the tax imposed on gross direct premiums shall be 42 four-tenths of one percent on all or any part of the first twenty 43 million dollars of premiums, three-tenths of one percent on all or any 44 part of the second twenty million dollars of premiums, two-tenths of one 45 percent on all or any part of the third twenty million dollars of premi- 46 ums, and seventy-five thousandths of one percent on each dollar of 47 premiums thereafter. The rate of the tax on assumed reinsurance premiums 48 shall be two hundred twenty-five thousandths of one percent on all or 49 any part of the first twenty million dollars of premiums, one hundred 50 and fifty thousandths of one percent on all or any part of the second 51 twenty million dollars of premiums, fifty thousandths of one percent on 52 all or any part of the third twenty million dollars of premiums and 53 twenty-five thousandths of one percent on each dollar of premiums there- S. 60--A 9 A. 160--A 1 after. The tax imposed by this section shall be equal to the greater of 2 (i) the sum of the tax imposed on gross direct premiums and the tax 3 imposed on assumed reinsurance premiums or (ii) five thousand dollars. 4 S 4. Subdivisions (a) and (e) of section 1505-a of the tax law, subdi- 5 vision (a) as amended by section 6 of part II-1 of chapter 57 of the 6 laws of 2008 and subdivision (e) as amended by chapter 166 of the laws 7 of 1991, are amended to read as follows: 8 (a) (1) Every domestic insurance corporation and every foreign or 9 alien insurance corporation, and every life insurance corporation 10 described in PARAGRAPH TWO OF subdivision (b) of section fifteen hundred 11 [one] TEN of this article, for the privilege of exercising its corporate 12 franchise, or of doing business, or of employing capital, or of owning 13 or leasing property in the metropolitan commuter transportation district 14 in a corporate or organized capacity, or of maintaining an office in the 15 metropolitan commuter transportation district, for all or any part of 16 its taxable years commencing on or after January first, nineteen hundred 17 eighty-two, but ending before December thirty-first, two thousand thir- 18 teen, except corporations specified in subdivision (c) of section 19 fifteen hundred twelve of this article, shall annually pay, in addition 20 to the [taxes otherwise] TAX imposed by SECTION FIFTEEN HUNDRED TEN OF 21 this article, a tax surcharge on [the taxes imposed under this article] 22 THAT TAX after the deduction of any credits otherwise allowable under 23 this article as allocated to such district. [Such taxes shall be allo- 24 cated to such district for purposes of computing such tax surcharge upon 25 taxpayers subject to tax under subdivision (b) of section fifteen 26 hundred ten of this article by applying the methodology, procedures and 27 computations set forth in subdivisions (a) and (b) of section fifteen 28 hundred four of this article, except that references to terms denoting 29 New York premiums, and total wages, salaries, personal service compen- 30 sation and commissions within New York shall be read as denoting within 31 the metropolitan commuter transportation district and terms denoting 32 total premiums and total wages, salaries, personal service compensation 33 and commissions shall be read as denoting within the state. If it shall 34 appear to the commissioner that the application of the methodology, 35 procedures and computations set forth in such subdivisions (a) and (b) 36 does not properly reflect the activity, business or income of a taxpayer 37 within the metropolitan commuter transportation district, then the 38 commissioner shall be authorized, in the commissioner's discretion, to 39 adjust such methodology, procedures and computations for the purpose of 40 allocating such taxes by: 41 (A) excluding one or more factors therein; 42 (B) including one or more other factors therein, such as expenses, 43 purchases, receipts other than premiums, real property or tangible 44 personal property; or 45 (C) any other similar or different method which allocates such taxes 46 by attributing a fair and proper portion of such taxes to the metropol- 47 itan commuter transportation district. The commissioner from time to 48 time shall publish all rulings of general public interest with respect 49 to any application of the provisions of the preceding sentence. The 50 commissioner may promulgate rules and regulations to further implement 51 the provisions of this section. 52 (2) Such taxes] THE TAX IMPOSED BY SECTION FIFTEEN HUNDRED TEN shall 53 be allocated to such district for purposes of computing such tax 54 surcharge [upon taxpayers subject to tax under section fifteen hundred 55 two-a of this article] pursuant to a fraction, the denominator of which 56 shall be the direct premiums subject to tax under section fifteen S. 60--A 10 A. 160--A 1 hundred ten of this article, and the numerator of which shall be the 2 direct premiums subject to tax under section fifteen hundred ten of this 3 article that are written on risks located or resident in the metropol- 4 itan commuter transportation district, including premiums written, 5 procured or received in the metropolitan commuter transportation 6 district on business that cannot be specifically assigned as located or 7 resident in an area of New York state outside the metropolitan commuter 8 transportation district, or in another state or states; provided, howev- 9 er, in the case of special risk premiums, the numerator shall include 10 only those premiums written, procured or received in the metropolitan 11 commuter transportation district on property or risks located or resi- 12 dent in the metropolitan commuter transportation district. If it shall 13 appear to the commissioner that the application of the methodology, 14 procedures and computations set forth in this paragraph does not proper- 15 ly reflect the activity[,] OR business [or income] of a taxpayer within 16 the metropolitan commuter transportation district, then the commissioner 17 shall be authorized, in the commissioner's discretion, to adjust such 18 methodology, procedures and computations for the purpose of allocating 19 such taxes by: (A) excluding the factor therein and including one or 20 more other factors such as expenses, purchases, receipts other than 21 premiums, real property or tangible personal property; or (B) any other 22 similar or different method which allocates such taxes by attributing a 23 fair and proper portion of such taxes to the metropolitan commuter 24 transportation district. The commissioner from time to time shall 25 publish all rulings of general public interest with respect to any 26 application of the provisions of the preceding sentence. The commission- 27 er may promulgate rules and regulations to further implement the 28 provisions of this section. 29 [(3)] (2) Such tax surcharge shall be computed at the rate of [eigh- 30 teen percent of the taxes imposed under sections fifteen hundred one and 31 fifteen hundred ten of this article as limited by section fifteen 32 hundred five of this article, as allocated to such district, for such 33 taxable years or any part of such taxable years ending before December 34 thirty-first, nineteen hundred eighty-three after the deduction of any 35 credits otherwise allowable under this article, at the rate of seventeen 36 percent of the taxes imposed under such sections as limited by section 37 fifteen hundred five of this article, as allocated to such district, for 38 such taxable years or any part of such taxable years ending on or after 39 December thirty-first, nineteen hundred eighty-three and before January 40 first, two thousand three after the deduction of any credits otherwise 41 allowable under this article, and at the rate of seventeen percent of 42 the taxes imposed under sections fifteen hundred one, fifteen hundred 43 two-a, and fifteen hundred ten of this article, as limited or otherwise 44 determined by subdivision (a) or (b) of section fifteen hundred five of 45 this article, as allocated to such district, for such taxable years or 46 any part of such taxable years ending after December thirty-first, two 47 thousand two after the deduction of any credits otherwise allowable 48 under this article] SEVENTEEN PERCENT OF THE TAX IMPOSED BY SECTION 49 FIFTEEN HUNDRED TEN OF THIS ARTICLE AFTER THE DEDUCTION OF ANY CREDITS 50 OTHERWISE ALLOWABLE UNDER THIS ARTICLE, AS ALLOCATED TO SUCH DISTRICT, 51 FOR TAXABLE YEARS OR ANY PART OF A TAXABLE YEAR ENDING AFTER DECEMBER 52 THIRTY-FIRST, TWO THOUSAND EIGHT; provided, however, that the tax 53 surcharge imposed by this section shall not be imposed upon any taxpayer 54 for more than three hundred seventy-two months. [Provided however, that 55 for taxable years commencing on or after July first, two thousand, and 56 in the case of taxpayers subject to tax under section fifteen hundred S. 60--A 11 A. 160--A 1 two-a of this article, for taxable years of such taxpayers beginning on 2 or after July first, two thousand and before January first, two thousand 3 three, such surcharge shall be calculated as if (i) the rate of the tax 4 computed under paragraph one of subdivision (a) of section fifteen 5 hundred two of this article was nine percent and (ii) the rate of the 6 limitation on tax set forth in section fifteen hundred five of this 7 article for domestic, foreign and alien insurance corporations except 8 life insurance corporations was two and six-tenths percent.] 9 (e) The provisions concerning returns under section fifteen hundred 10 fifteen of this article shall be applicable to this section, except that 11 for purposes of an automatic extension for six months for filing a 12 return covering the tax surcharges imposed by this section, such auto- 13 matic extension shall be allowed only if a taxpayer files with the 14 commissioner an application for extension in such form and manner as 15 said commissioner may prescribe by regulation and such taxpayer pays on 16 or before the date of such filing in addition to any other amounts 17 required under this article, either ninety percent of the entire tax 18 required to be paid under this section for the applicable period, or not 19 less than the tax surcharge shown on the taxpayer's return for the 20 preceding taxable year, if such preceding taxable year was a taxable 21 year of twelve months. The tax surcharge imposed by this section shall 22 be payable to the commissioner in full at the time the return is 23 required to be filed, and such tax surcharge or the balance thereof, 24 imposed on any taxpayer which ceases to exercise its franchise or be 25 subject to the tax surcharge imposed by this section shall be payable to 26 the commissioner at the time the return is required to be filed, 27 provided such tax surcharge of such domestic, foreign or alien insurance 28 corporation including life insurance corporations, as described in PARA- 29 GRAPH TWO OF subdivision (b) of section fifteen hundred [one] TEN of 30 this article, shall be subject to adjustment as the circumstances may 31 require; all other tax surcharges of any such taxpayer, which pursuant 32 to the foregoing provisions of this section would otherwise be payable 33 subsequent to the time such return is required to be filed, shall never- 34 theless be payable at such time. All of the provisions of this article 35 presently applicable are applicable to the tax surcharge imposed by this 36 section. 37 S 5. The section heading of section 1510 of the tax law, as amended by 38 section 7 of part H3 of chapter 62 of the laws of 2003, is amended to 39 read as follows: 40 [Additional franchise] FRANCHISE tax on insurance corporations. 41 S 6. Subdivision (a) of section 1510 of the tax law, as amended by 42 section 7 of part H3 of chapter 62 of the laws of 2003, is amended to 43 read as follows: 44 (a) Domestic, foreign and alien insurance corporations except life 45 insurance corporations. [Except as hereinafter provided, for taxable 46 years beginning before January first, two thousand three every] EVERY 47 domestic insurance corporation, every foreign insurance corporation and 48 every alien insurance corporation, other than such corporations trans- 49 acting the business of life insurance, (1) authorized to transact busi- 50 ness in this state under a certificate of authority from the superinten- 51 dent of insurance or (2) which is a risk retention group as defined in 52 subsection (n) of section five thousand nine hundred two of the insur- 53 ance law, shall, for the privilege of exercising corporate franchises or 54 for carrying on business in a corporate or organized capacity within 55 this state, and in addition to any other taxes imposed for such privi- 56 lege, pay a tax on all gross direct premiums, less return premiums ther- S. 60--A 12 A. 160--A 1 eon, written on risks located or resident in this state. The rate of 2 tax imposed by this subdivision shall be two percent on premiums [writ- 3 ten on or after January first, nineteen hundred seventy-four and before 4 January first, nineteen hundred seventy-five, one and nine-tenths 5 percent on premiums written on or after January first, nineteen hundred 6 seventy-five and before January first, nineteen hundred seventy-six, one 7 and eight-tenths percent on premiums written on or after January first, 8 nineteen hundred seventy-six and before January first, nineteen hundred 9 seventy-eight, one and two-tenths percent on premiums written on or 10 after January first, nineteen hundred seventy-eight and before January 11 first, nineteen hundred ninety-two and one and three-tenths percent on 12 premiums written on and after such date. Provided, however, that the 13 rate of tax imposed by this subdivision on all gross direct premiums, 14 less return premiums thereon, for accident and health insurance 15 contracts shall be one and six-tenths percent for such premiums written 16 on or after January first, nineteen hundred seventy-four and before 17 January first, nineteen hundred seventy-eight, and one percent for such 18 premiums written on or after January first, nineteen hundred seventy- 19 eight]. 20 S 7. Paragraph 1 of subdivision (b) of section 1510 of the tax law, as 21 amended by section 7 of part H3 of chapter 62 of the laws of 2003, is 22 amended to read as follows: 23 (1) Except as hereinafter provided, every domestic life insurance 24 corporation, and every foreign and alien life insurance corporation 25 authorized to transact business in this state under a certificate of 26 authority from the superintendent of insurance, shall, for the privilege 27 of exercising corporate franchises or for carrying on business in a 28 corporate or organized capacity within this state, and in addition to 29 any other taxes imposed for such privilege, pay a tax on all gross 30 direct premiums, less return premiums thereon, received in cash or 31 otherwise on risks resident in this state, including supplemental 32 contracts for total and permanent disability benefits and accidental 33 death benefits. The rate of such tax shall be [(i) one and six-tenths] 34 TWO percent on such premiums [received on or after January first, nine- 35 teen hundred seventy-four and before January first, nineteen hundred 36 seventy-eight, (ii) one percent on such premiums received on or after 37 January first, nineteen hundred seventy-eight and before January first, 38 nineteen hundred eighty-seven, (iii) eight-tenths percent on such premi- 39 ums received on or after January first, nineteen hundred eighty-seven 40 and before January first, nineteen hundred ninety-eight, and (iv) 41 seven-tenths percent on such premiums received on or after January 42 first, nineteen hundred ninety-eight]. 43 S 8. Section 1510 of the tax law is amended by adding a new subdivi- 44 sion (d) to read as follows: 45 (D) IN NO EVENT CAN THE TAX IMPOSED UNDER THIS SECTION BE LESS THAN 46 TWO HUNDRED FIFTY DOLLARS. 47 S 9. Paragraph 2 of subdivision (e) of section 1511 of the tax law, as 48 amended by section 8 of part H3 of chapter 62 of the laws of 2003, is 49 amended to read as follows: 50 (2) In no event shall the credit herein provided for be allowed in an 51 amount which will reduce the tax payable to less than the minimum tax 52 fixed by [paragraph four of subdivision (a) of section fifteen hundred 53 two of this article or section fifteen hundred two-a of this article, 54 whichever is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN 55 OF THIS ARTICLE. If, however, the amount of credit allowable under this 56 subdivision for any taxable year reduces the tax to such amount, any S. 60--A 13 A. 160--A 1 amount of credit not deductible in such taxable year may be carried over 2 to the following year or years and may be deducted from the taxpayer's 3 tax for such year or years. 4 S 10. Subparagraph (A) of paragraph 3 and paragraph 5 of subdivision 5 (f) of section 1511 of the tax law, subparagraph (A) of paragraph 3 as 6 amended by chapter 803 of the laws of 1985 and paragraph 5 as amended by 7 section 9 of part H3 of chapter 62 of the laws of 2003, are amended to 8 read as follows: 9 (A) For each calendar year for which a credit has been authorized 10 pursuant to section seven thousand seven hundred twelve of the insurance 11 law, the commissioner of taxation and finance shall determine the total 12 tax liability of all life insurance corporations under this article, 13 [other than under section fifteen hundred five-a of this article,] 14 before the application of any credits allowed pursuant to this section, 15 for taxable years beginning in such calendar year. Such total tax 16 liability shall be published in the state register on or before the 17 thirtieth day of September of the next succeeding calendar year. 18 (5) No credit allowed pursuant to this subdivision shall reduce the 19 tax payable by any taxpayer under this article for any taxable year to 20 an amount less than the minimum tax fixed by [paragraph four of subdivi- 21 sion (a) of section fifteen hundred two of this article or section 22 fifteen hundred two-a of this article, whichever is applicable] SUBDIVI- 23 SION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. 24 S 11. The closing paragraph of paragraph 4 and paragraph 5 of subdivi- 25 sion (g) of section 1511 of the tax law, the closing paragraph of para- 26 graph 4 as amended by section 10 and paragraph 5 as amended by section 27 11 of part H3 of chapter 62 of the laws of 2003, are amended to read as 28 follows: 29 Provided, further, however, that the credit provided for herein with 30 respect to the taxable year, and carryovers of such credit to the taxa- 31 ble year, deducted from the tax otherwise due, may not, in the aggre- 32 gate, exceed fifty percent of [(i) in the case of taxpayers subject to 33 tax under subdivision (b) of section fifteen hundred ten of this arti- 34 cle, the lesser of (I) the limitation on tax computed pursuant to subdi- 35 vision (a) of section fifteen hundred five, or (II) the greater of the 36 sum of the taxes imposed under sections fifteen hundred one and fifteen 37 hundred ten or the amount of tax computed pursuant to subdivision (b) of 38 section fifteen hundred five, or (ii) for all other insurance corpo- 39 rations,] the tax imposed under section fifteen hundred [two-a] TEN of 40 this article, computed without regard to any credit provided for under 41 this article. 42 (5) The credit or carryovers of such credit allowed under this subdi- 43 vision for any taxable year shall not, in the aggregate, reduce the tax 44 due for such year to less than the minimum tax fixed by [paragraph four 45 of subdivision (a) of section fifteen hundred two of this article or by 46 section fifteen hundred two-a of this article, whichever is applicable] 47 SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. Howev- 48 er, if the amount of credit or carryovers of such credit, or both, 49 allowed under this subdivision for any taxable year reduces the tax to 50 such amount, or if any part of the credit or carryovers of such credit 51 may not be deducted from the tax otherwise due by reason of the final 52 sentence in paragraph four [hereof] OF THIS SUBDIVISION, any amount of 53 credit or carryovers of such credit thus not deductible in such taxable 54 year may be carried over to the following year or years and may be 55 deducted from the taxpayer's tax for such year or years. S. 60--A 14 A. 160--A 1 S 12. Paragraphs 2 and 3 of subdivision (h) of section 1511 of the tax 2 law, paragraph 2 as amended by section 12 of part H3 of chapter 62 of 3 the laws of 2003 and paragraph 3 as amended by chapter 708 of the laws 4 of 1993, are amended to read as follows: 5 (2) The credit and carryover of such credit allowed under this subdi- 6 vision for any taxable year shall not, in the aggregate, reduce the tax 7 due for such year to less than the minimum fixed by [paragraph four of 8 subdivision (a) of section fifteen hundred two of this article or by 9 section fifteen hundred two-a of this article, whichever is applicable] 10 SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. Howev- 11 er, if the amount of credit or carryovers of such credit, or both, 12 allowed under this subdivision for any taxable year reduces the tax to 13 such amount, or if any part of the credit or carryovers of such credit 14 may not be deducted from the tax otherwise due by reason of the final 15 sentence of this paragraph, any amount of credit or carryovers of such 16 credit thus not deductible in such taxable year may be carried over to 17 the following year or years and may be deducted from the tax for such 18 year or years. In addition, the amount of such credit, and carryovers of 19 such credit to the taxable year, deducted from the tax otherwise due may 20 not, in the aggregate, exceed fifty percent of [(i) in the case of 21 taxpayers subject to tax under subdivision (b) of section fifteen 22 hundred ten of this article, the lesser of (I) the limitation on tax 23 computed pursuant to subdivision (a) of section fifteen hundred five, or 24 (II) the greater of the sum of the taxes imposed under sections fifteen 25 hundred one and fifteen hundred ten or the amount of tax computed pursu- 26 ant to subdivision (b) of section fifteen hundred five, or (ii) for all 27 other insurance corporations,] the tax imposed under section fifteen 28 hundred [two-a] TEN of this article, computed without regard to any 29 credit provided for under this article. 30 [(3) Where the stock, partnership interest or other ownership interest 31 arising from a qualified investment as described in subparagraphs (A) 32 and (B) of paragraph one of this subdivision is disposed of, the taxpay- 33 er's entire net income shall be computed, pursuant to regulations 34 promulgated by the commissioner, so as to properly reflect the reduced 35 cost thereof arising from the application of the credit provided for 36 herein.] 37 S 13. Paragraph 5 of subdivision (j) of section 1511 of the tax law, 38 as amended by section 13 of part H3 of chapter 62 of the laws of 2003, 39 is amended to read as follows: 40 (5) Carryover. The credit and carryovers of such credit allowed under 41 this subdivision for any taxable year shall not, in the aggregate, 42 reduce the tax due for such year to less than the minimum tax fixed by 43 [paragraph four of subdivision (a) of section fifteen hundred two of 44 this article or by section fifteen hundred two-a of this article, which- 45 ever is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF 46 THIS ARTICLE. However, if the amount of credit or carryovers of such 47 credit, or both, allowed under this subdivision for any taxable year 48 reduces the tax to such amount, then any amount of credit or carryovers 49 of such credit thus not deductible in such taxable year may be carried 50 over to the following year or years and may be deducted from the taxpay- 51 er's tax for such year or years. 52 S 14. Paragraph 3 of subdivision (k) of section 1511 of the tax law, 53 as amended by section 14 of part H3 of chapter 62 of the laws of 2003, 54 is amended to read as follows: 55 (3) No credit allowable pursuant to this subdivision shall reduce the 56 tax payable under this article to less than the minimum tax fixed by S. 60--A 15 A. 160--A 1 [paragraph four of subdivision (a) of section fifteen hundred two of 2 this article or by section fifteen hundred two-a of this article, which- 3 ever is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF 4 THIS ARTICLE. If, however, the amount of credit allowable under this 5 subdivision for any taxable year reduces the tax to such amount, any 6 amount of credit not taken in such taxable year may be carried over to 7 the following year or years and may be deducted from the taxpayer's tax 8 for such year or years. 9 S 15. Subdivision 1 of section 1511 of the tax law, as amended by 10 section 15 of part H3 of chapter 62 of the laws of 2003, is amended to 11 read as follows: 12 (l) Credit for purchase of an automated external defibrillator. A 13 taxpayer shall be allowed a credit as hereinafter provided, against the 14 tax imposed by this article for the purchase, other than for resale, of 15 an automated external defibrillator, as such term is defined in section 16 three thousand-b of the public health law. The amount of the credit 17 shall be the cost to the taxpayer of automated external defibrillators 18 purchased during the taxable year, such credit not to exceed five 19 hundred dollars with respect to each unit purchased. The credit allowed 20 under this subdivision for any taxable year shall not reduce the tax due 21 for such year to less than the minimum tax fixed by [paragraph four of 22 subdivision (a) of section fifteen hundred two of this article or by 23 section fifteen hundred two-a of this article, whichever is applicable] 24 SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. 25 S 16. Paragraph 2 of subdivision (m) of section 1511 of the tax law, 26 as amended by section 16 of part H3 of chapter 62 of the laws of 2003, 27 is amended to read as follows: 28 (2) In no event shall the credit herein provided for be allowed in an 29 amount which will reduce the tax payable to less than the minimum tax 30 fixed by [paragraph four of subdivision (a) of section fifteen hundred 31 two of this article or by section fifteen hundred two-a of this article, 32 whichever is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN 33 OF THIS ARTICLE. If, however, the amount of credit allowable under this 34 subdivision for any taxable year reduces the tax to such amount, any 35 amount of credit not deductible in such taxable year may be carried over 36 to the following year or years and may be deducted from the taxpayer's 37 tax for such year or years. 38 S 17. Paragraph 2 of subdivision (n) of section 1511 of the tax law, 39 as amended by section 17 of part H3 of chapter 62 of the laws of 2003, 40 is amended to read as follows: 41 (2) Application of credit. The credit and carryovers of such credit 42 allowed under this subdivision for any taxable year shall not, in the 43 aggregate, reduce the tax due for such year to less than the minimum tax 44 fixed by [paragraph four of subdivision (a) of section fifteen hundred 45 two of this article or by section fifteen hundred two-a of this article, 46 whichever is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN 47 OF THIS ARTICLE. However, if the amount of credit or carryovers of such 48 credit, or both, allowed under this subdivision for any taxable year 49 reduces the tax to such amount, then any amount of credit or carryovers 50 of such credit thus not deductible in such taxable year may be carried 51 over to the following year or years and may be deducted from the taxpay- 52 er's tax for such year or years. 53 S 18. Paragraph 2 of subdivision (o) of section 1511 of the tax law, 54 as amended by section 18 of part H3 of chapter 62 of the laws of 2003, 55 is amended to read as follows: S. 60--A 16 A. 160--A 1 (2) Carryover. The credit and carryovers of such credit allowed under 2 this subdivision for any taxable year shall not, in the aggregate, 3 reduce the tax due for such year to less than the minimum tax fixed by 4 [paragraph four of subdivision (a) of section fifteen hundred two of 5 this article or by section fifteen hundred two-a of this article, which- 6 ever is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF 7 THIS ARTICLE. However, if the amount of credit or carryovers of such 8 credit, or both, allowed under this subdivision for any taxable year 9 reduces the tax to such amount, then any amount of credit or carryovers 10 of such credit thus not deductible in such taxable year may be carried 11 over to the following year or years and may be deducted from the taxpay- 12 er's tax for such year or years. 13 S 19. Paragraph 2 of subdivision (p) of section 1511 of the tax law, 14 as amended by section 19 of part H3 of chapter 62 of the laws of 2003, 15 is amended to read as follows: 16 (2) Application of credit. The credit allowed under this subdivision 17 for any taxable year shall not reduce the tax due for such year to less 18 than the minimum tax fixed by [paragraph four of subdivision (a) of 19 section fifteen hundred two of this article or by section fifteen 20 hundred two-a of this article, whichever is applicable] SUBDIVISION (D) 21 OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, if the amount 22 of credit allowed under this subdivision for any taxable year reduces 23 the tax to such amount, then any amount of credit thus not deductible in 24 such taxable year shall be treated as an overpayment of tax to be cred- 25 ited or refunded in accordance with the provisions of section ten 26 hundred eighty-six of this chapter. Provided, however, the provisions of 27 subsection (c) of section ten hundred eighty-eight of this chapter 28 notwithstanding, no interest shall be paid thereon. 29 S 20. Paragraph 4 of subdivision (q) of section 1511 of the tax law, 30 as amended by section 20 of part H3 of chapter 62 of the laws of 2003, 31 is amended to read as follows: 32 (4) Except as otherwise provided in this paragraph, the credit allowed 33 under this subdivision for any taxable year shall not reduce the tax due 34 for such year to less than the amount fixed as a minimum tax by [para- 35 graph four of subdivision (a) of section fifteen hundred two of this 36 article or by section fifteen hundred two-a of this article, whichever 37 is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS 38 ARTICLE. However, if the amount of credit allowable under this subdivi- 39 sion for any taxable year reduces the tax to such amount, any amount of 40 credit allowed for a taxable year may be carried over to the fifteen 41 taxable years next following such taxable year and may be deducted from 42 the taxpayer's tax for such year or years. In lieu of such carryover, 43 any such taxpayer which qualifies as a new business under paragraph 44 seven of this subdivision may elect to treat the amount of such carry- 45 over as an overpayment of tax to be credited or refunded in accordance 46 with the provisions of section one thousand eighty-six of this chapter, 47 provided, however, the provisions of subsection (c) of section one thou- 48 sand eighty-eight of this chapter notwithstanding no interest shall be 49 paid thereon. 50 S 21. Paragraph 2 of subdivision (r) of section 1511 of the tax law, 51 as amended by section 21 of part H3 of chapter 62 of the laws of 2003, 52 is amended to read as follows: 53 (2) Application of credit. The credit allowed under this subdivision 54 for any taxable year shall not reduce the tax due for such year to less 55 than the minimum tax fixed by [paragraph four of subdivision (a) of 56 section fifteen hundred two of this article or by section fifteen S. 60--A 17 A. 160--A 1 hundred two-a of this article, whichever is applicable] SUBDIVISION (D) 2 OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, if the amount 3 of credit allowed under this subdivision for any taxable year reduces 4 the tax to such amount, then any amount of credit thus not deductible in 5 such taxable year shall be treated as an overpayment of tax to be cred- 6 ited or refunded in accordance with the provisions of section ten 7 hundred eighty-six of this chapter. Provided, however, the provisions of 8 subsection (c) of section ten hundred eighty-eight of this chapter 9 notwithstanding, no interest shall be paid thereon. 10 S 22. Paragraph 2 of subdivision (s) of section 1511 of the tax law, 11 as amended by section 22 of part H3 of chapter 62 of the laws of 2003, 12 is amended to read as follows: 13 (2) Application of credit. The credit allowed under this subdivision 14 for any taxable year shall not reduce the tax due for such year to less 15 than the minimum tax fixed by [paragraph four of subdivision (a) of 16 section fifteen hundred two of this article or by section fifteen 17 hundred two-a of this article, whichever is applicable] SUBDIVISION (D) 18 OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. 19 S 23. Paragraph 2 of subdivision (u) of section 1511 of the tax law, 20 as added by section 11 of part H of chapter 1 of the laws of 2003, is 21 amended to read as follows: 22 (2) Application of credit. The credit allowed under this subdivision 23 for any taxable year shall not reduce the tax due for such year to less 24 than the minimum fixed by [paragraph four of subdivision (a) of section 25 fifteen hundred two of this article] SUBDIVISION (D) OF SECTION FIFTEEN 26 HUNDRED TEN OF THIS ARTICLE. However, if the amount of credits allowed 27 under this subdivision for any taxable year reduces the tax to such 28 amount, any amount of credit thus not deductible in such taxable year 29 shall be treated as an overpayment of tax to be credited or refunded in 30 accordance with the provisions of section ten hundred eighty-six of this 31 chapter. Provided, however, the provisions of subsection (c) of section 32 ten hundred eighty-eight of this chapter notwithstanding, no interest 33 shall be paid thereon. 34 S 24. Paragraph 2 of subdivision (v) of section 1511 of the tax law, 35 as added by section 18 of part H of chapter 1 of the laws of 2003, is 36 amended to read as follows: 37 (2) Application of credit. The credit allowed under this subdivision 38 for any taxable year shall not reduce the tax due for such year to less 39 than the minimum tax fixed by [paragraph four of subdivision (a) of 40 section fifteen hundred two of this article] SUBDIVISION (D) OF SECTION 41 FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, if the amount of credit 42 allowed under this subdivision for any taxable year reduces the tax to 43 such amount, any amount of credit thus not deductible in such taxable 44 year shall be treated as an overpayment of tax to be credited or 45 refunded in accordance with the provisions of section ten hundred eight- 46 y-six of this chapter. Provided, however, the provisions of subsection 47 (c) of section ten hundred eighty-eight of this chapter notwithstanding, 48 no interest shall be paid thereon. 49 S 25. Paragraph 2 of subdivision (w) of section 1511 of the tax law, 50 as added by section 29 of part H of chapter 1 of the laws of 2003, is 51 amended to read as follows: 52 (2) Application of credit. The credit allowed under this subdivision 53 for any taxable year shall not reduce the tax due for such year to less 54 than the minimum fixed by [paragraph four of subdivision (a) of section 55 fifteen hundred two or section fifteen hundred two-a of this article] 56 SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, S. 60--A 18 A. 160--A 1 if the amount of credits allowed under this subdivision for any taxable 2 year reduces the tax to such amount, any amount of credit thus not 3 deductible in such taxable year shall be treated as an overpayment of 4 tax to be credited or refunded in accordance with the provisions of 5 section one thousand eighty-six of this chapter. Provided, however, the 6 provisions of subsection (c) of section one thousand eighty-eight of 7 this chapter notwithstanding, no interest shall be paid thereon. 8 S 26. Paragraph 2 of subdivision (x) of section 1511 of the tax law, 9 as added by chapter 537 of the laws of 2005, is amended to read as 10 follows: 11 (2) Application of credit. The credit allowed under this subdivision 12 for any taxable year shall not reduce the tax due for such year to less 13 than the minimum fixed by [paragraph four of subdivision (a) of section 14 fifteen hundred two or section fifteen hundred two-a of this article] 15 SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, 16 if the amount of credits allowed under this subdivision for any taxable 17 year reduces the tax to such amount, any amount of credit thus not 18 deductible in such taxable year shall be treated as an overpayment of 19 tax to be credited or refunded in accordance with the provisions of 20 section one thousand eighty-six of this chapter. Provided, however, the 21 provisions of subsection (c) of section one thousand eighty-eight of 22 this chapter notwithstanding, no interest shall be paid thereon. 23 S 27. Paragraph 3 of subdivision (x) of section 1511 of the tax law, 24 as added by chapter 446 of the laws of 2005, is amended to read as 25 follows: 26 (3) Application of credit. The credit allowed under this subdivision 27 for any taxable year shall not reduce the tax due for such year to less 28 than the minimum tax fixed by [paragraph four of subdivision (a) of 29 section fifteen hundred two of this article or by section fifteen 30 hundred two-a of this article, whichever is applicable] SUBDIVISION (D) 31 OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, if the amount 32 of credit allowed under this subdivision for any taxable year reduces 33 the tax to such amount, any amount of credit thus not deductible in such 34 taxable year may be carried over to the following year or years and may 35 be deducted from the taxpayer's tax for such year or years. 36 S 28. Subdivision (b) of section 1513 of the tax law, as amended by 37 section 25 of part H3 of chapter 62 of the laws of 2003, is amended to 38 read as follows: 39 (b) Definition of estimated tax and estimated tax surcharge. The terms 40 "estimated tax" and "estimated tax surcharge" mean the amounts which the 41 taxpayer estimates to be the taxes imposed by [sections fifteen hundred 42 one, fifteen hundred two-a and] SECTION fifteen hundred ten of this 43 article or the tax surcharge imposed by section fifteen hundred five-a 44 of this article, respectively, for the current taxable year, less the 45 sum of any credits which it estimates to be allowable against such taxes 46 or tax surcharge, respectively. 47 S 29. Subdivisions (e) and (f) of section 1514 of the tax law, subdi- 48 vision (e) as amended by chapter 166 of the laws of 1991 and subdivision 49 (f) as amended by section 26 of part H3 of chapter 62 of the laws of 50 2003, are amended to read as follows: 51 (e) Interest on certain installments based on the preceding year's 52 tax. Notwithstanding the provisions of section one thousand eighty- 53 eight of this chapter or section sixteen of the state finance law, if an 54 amount paid pursuant to subdivision (a) of this section exceeds the tax 55 or tax surcharge, respectively, shown on the return required to be filed 56 by the taxpayer for the taxable year during which such amount was paid, S. 60--A 19 A. 160--A 1 interest shall be allowed and paid on the amount by which the amount so 2 paid pursuant to SUCH subdivision (a) exceeds such tax or tax surcharge, 3 at the overpayment rate set by the commissioner of taxation and finance 4 pursuant to subdivision (e) of section one thousand ninety-six or, if no 5 rate is set, at the rate of six percent per annum, from the date of 6 payment of the amount so paid pursuant to such subdivision (a) to the 7 fifteenth day of the third month following the close of the taxable 8 year, provided, however, that no interest shall be allowed or paid under 9 this subdivision if the amount thereof is less than one dollar [or if 10 such interest becomes payable solely because of a loss described in 11 paragraph four of subdivision (b) of section fifteen hundred three]. 12 (f) The preceding year's tax defined. As used in this section, "the 13 preceding year's tax" means[, for taxpayers subject to tax under subdi- 14 vision (b) of section fifteen hundred ten of this article, the taxes 15 imposed upon the taxpayer by sections fifteen hundred one and fifteen 16 hundred ten of this article from the preceding taxable year or as other- 17 wise determined by subdivision (b) of section fifteen hundred five of 18 this article, and for taxpayers subject to tax under section fifteen 19 hundred two-a of this article, the tax imposed upon the taxpayer by such 20 section fifteen hundred two-a of this article from the preceding year,] 21 THE TAX IMPOSED ON THE TAXPAYER BY THIS ARTICLE WITHOUT REGARD TO THE 22 TAX SURCHARGE IMPOSED BY SECTION FIFTEEN HUNDRED FIVE-A, or for purposes 23 of computing the first installment of estimated tax when an application 24 has been filed for extension of the time for filing the return required 25 to be filed for such preceding taxable year, the amount properly esti- 26 mated pursuant to paragraph one of subdivision (b) of section fifteen 27 hundred sixteen of this article as the tax imposed upon the taxpayer for 28 such taxable year. 29 S 30. Paragraph 1 of subdivision (e) of section 1515 of the tax law, 30 as amended by chapter 770 of the laws of 1992, is amended to read as 31 follows: 32 (1) [If] FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOU- 33 SAND NINE, IF the amount of the life insurance company taxable income 34 (which shall include, in the case of a stock life insurance company 35 which has an existing policyholders surplus account, the amount of 36 direct and indirect distributions during the taxable year to sharehold- 37 ers from such account), taxable income of a partnership or taxable 38 income, as the case may be, or alternative minimum taxable income for 39 any year of any taxpayer as returned to the United States treasury 40 department is changed or corrected by the commissioner of internal 41 revenue or other officer of the United States or other competent author- 42 ity, such taxpayer shall report such change or corrected taxable income 43 or alternative minimum taxable income within ninety days (or one hundred 44 twenty days, in the case of a taxpayer making a combined return under 45 this article for such year) after the final determination of such change 46 or correction or as required by the commissioner, and shall concede the 47 accuracy of such determination or state wherein it is erroneous. Any 48 taxpayer filing an amended return with such department shall also file 49 within ninety days (or one hundred twenty days, in the case of a taxpay- 50 er making a combined return under this article for such year) thereafter 51 an amended return with the commissioner which shall contain such infor- 52 mation as the commissioner shall require. The allowance of a tentative 53 carryback adjustment based upon a net operating loss carryback or net 54 capital loss carryback pursuant to section sixty-four hundred eleven of 55 the internal revenue code or upon an operations loss carryback pursuant S. 60--A 20 A. 160--A 1 to section eight hundred ten of the internal revenue code, shall be 2 treated as a final determination for purposes of this subdivision. 3 S 31. Subdivisions (f) and (g) of section 1515, subdivision (g) of 4 section 1518 and section 1520 of the tax law are REPEALED. 5 S 32. Paragraph 1, clause (ii) of subparagraph (B) of paragraph 2 and 6 subparagraph (A) of paragraph 3 of subdivision (f) of section 16 of the 7 tax law, as amended by section 14 of part CC of chapter 85 of the laws 8 of 2002, are amended to read as follows: 9 (1) General. The tax factor shall be, in the case of article nine-A of 10 this chapter, the larger of the amounts of tax determined for the taxa- 11 ble year under paragraphs (a) and (c) of subdivision one of section two 12 hundred ten of such article. The tax factor shall be, in the case of 13 article twenty-two of this chapter, the tax determined for the taxable 14 year under subsections (a) through (d) of section six hundred one of 15 such article. The tax factor shall be, in the case of article thirty-two 16 of this chapter, the larger of the amounts of tax determined for the 17 taxable year under subsection (a) and paragraph two of subsection (b) of 18 section fourteen hundred fifty-five of such article. The tax factor 19 shall be, in the case of article thirty-three of this chapter, the 20 [larger of the amounts] AMOUNT of tax determined for the taxable year 21 under [paragraphs one and three of] subdivision (a) OR (B) of section 22 fifteen hundred [two] TEN of such article. 23 (ii) For purposes of article nine-A[,] OR thirty-two [or thirty-three] 24 of this chapter, the term "partner's income from the partnership" means 25 partnership items of income, gain, loss and deduction, and New York 26 modifications thereto, entering into entire net income, minimum taxable 27 income, alternative entire net income or entire net income plus compen- 28 sation and the term "partner's entire income" means entire net income, 29 minimum taxable income, alternative entire net income or entire net 30 income plus compensation, allocated within the state. For purposes of 31 article twenty-two of this chapter, the term "partner's income from the 32 partnership" means partnership items of income, gain, loss and 33 deduction, and New York modifications thereto, entering into New York 34 adjusted gross income, and the term "partner's entire income" means New 35 York adjusted gross income. 36 (A) Where the taxpayer is a qualified empire zone enterprise and is 37 required or permitted to make a return or report on a combined basis 38 under article nine-A[,] OR thirty-two [or thirty-three] of this chapter, 39 the taxpayer's tax factor shall be the amount determined in paragraph 40 one of this subdivision which is attributable to the income of the qual- 41 ified empire zone enterprise. Such attribution shall be made in accord- 42 ance with the ratio of the qualified empire zone enterprise's income 43 allocated within the state to the combined group's income, or in accord- 44 ance with such other methods as the commissioner may prescribe as 45 providing an apportionment which reasonably reflects the portion of the 46 combined group's tax attributable to the income of the qualified empire 47 zone enterprise. In no event may the ratio so determined exceed 1.0. 48 S 33. Subparagraph (A) of paragraph 3 of subsection (d) of section 49 1085 of the tax law, as amended by chapter 170 of the laws of 1994, is 50 amended to read as follows: 51 (A) General. An amount equal to ninety-one percent of the tax for the 52 taxable year computed on all items entering into the computation of the 53 tax or taxes of the taxpayer for the taxable year under article nine, 54 nine-A[,] OR thirty-two [or thirty-three] of this chapter. For purposes 55 of computing the tax, all items of receipts, income and expenses shall 56 be placed on an annualized basis-- S. 60--A 21 A. 160--A 1 (i) for the first three months of the taxable year, in the case of the 2 installment required to be paid in the sixth month, 3 (ii) for the first six months of the taxable year, in the case of the 4 installment required to be paid in the ninth month, and 5 (iii) for the first nine months of the taxable year, in the case of 6 the installment required to be paid in the twelfth month. 7 S 34. Clause (i) of subparagraph (A) of paragraph 4 of subsection (d) 8 of section 1085 of the tax law, as amended by chapter 57 of the laws of 9 1993, is amended to read as follows: 10 (i) take the items entering into the computation of the tax or taxes 11 of the taxpayer for the taxable year under article nine, nine-A[,] OR 12 thirty-two [or thirty-three] of this chapter, for all months during the 13 taxable year preceding the filing month, 14 S 35. Paragraph 1 of subsection (e) of section 1085 of the tax law, as 15 amended by section 28 of part H3 of chapter 62 of the laws of 2003, is 16 amended to read as follows: 17 (1) Paragraphs (1) and (2) of subsection (d) of this section shall not 18 apply in the case of any corporation (or any predecessor corporation) 19 which had entire net income, or the portion thereof allocated within the 20 state, of one million dollars or more for any taxable year during the 21 three taxable years immediately preceding the taxable year involved; 22 provided, however, that in the case of a corporation subject to tax 23 under section fifteen hundred [two-a] TEN of this chapter, paragraphs 24 (1) and (2) of subsection (d) of this section shall not apply if [such 25 corporation had entire net income, or the portion thereof allocated 26 within the state, of one million dollars or more for any of the three 27 taxable years immediately preceding the taxable year involved, or if] 28 the direct premiums subject to tax under section fifteen hundred [two-a] 29 TEN of this chapter of the corporation for any of such three preceding 30 taxable years [beginning on or after January first, two thousand three] 31 equals or exceeds three million seven hundred fifty thousand dollars. 32 S 36. This act shall take effect immediately and apply to taxable 33 years beginning on or after January 1, 2009; provided however, that 34 section four of this act shall apply to taxable years ending after 35 December 31, 2008. 36 PART E 37 Section 1. The tax law is amended by adding a new section 171-t to 38 read as follows: 39 S 171-T. RECIPROCAL OFFSET AGREEMENTS WITH THE UNITED STATES OR OTHER 40 STATES. (1) FOR THE PURPOSES OF THIS SECTION, THE DEFINITIONS PROVIDED 41 FOR IN SECTION ONE HUNDRED SEVENTY-ONE-N OF THIS ARTICLE APPLY TOGETHER 42 WITH THE FOLLOWING: 43 (A) "CLAIMANT" MEANS ANY STATE OR THE UNITED STATES THAT ENTERS INTO A 44 RECIPROCAL AGREEMENT UNDER THIS SECTION OR REQUESTS APPLICATION OF A 45 VENDOR PAYMENT OR AN OVERPAYMENT TO A DEBT. 46 (B) "DEBT" MEANS A "TAX DEBT" AS DEFINED IN SECTION ONE HUNDRED SEVEN- 47 TY-ONE-N OF THIS ARTICLE AND ANY OTHER PAST DUE LEGALLY ENFORCEABLE 48 OBLIGATION OWED TO A STATE OR THE UNITED STATES, WHICH ARISES FROM (I) 49 AN ENFORCEABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION THAT IS NO 50 LONGER SUBJECT TO JUDICIAL REVIEW, OR (II) AN ENFORCEABLE DETERMINATION 51 OF AN ADMINISTRATIVE BODY THAT IS NO LONGER SUBJECT TO ADMINISTRATIVE OR 52 JUDICIAL REVIEW, OR (III) A DETERMINATION THAT HAS BECOME FINAL OR 53 FINALLY AND IRREVOCABLY FIXED AND NO LONGER SUBJECT TO ADMINISTRATIVE OR 54 JUDICIAL REVIEW. S. 60--A 22 A. 160--A 1 (C) "DEBTOR" MEANS A PERSON WHO OWES A DEBT. 2 (D) "PERSON" HAS THE SAME MEANING AS THAT TERM HAS IN SUBDIVISION (A) 3 OF SECTION ELEVEN HUNDRED ONE OF THIS CHAPTER. 4 (E) "VENDOR PAYMENT" MEANS ANY PAYMENT, OTHER THAN AN OVERPAYMENT, 5 MADE BY A STATE OR THE UNITED STATES TO ANY PERSON, AND INCLUDES BUT IS 6 NOT LIMITED TO ANY EXPENSE REIMBURSEMENT TO AN EMPLOYEE OF THE STATE OR 7 THE UNITED STATES; BUT DOES NOT INCLUDE A PERSON'S SALARY, WAGES OR 8 PENSION. 9 (2) THE COMMISSIONER MAY, IN HIS OR HER DISCRETION, ENTER INTO A 10 COLLECTION AND OFFSET AGREEMENT WITH ANOTHER STATE OR WITH THE UNITED 11 STATES SECRETARY OF THE TREASURY THROUGH THE INTERNAL REVENUE SERVICE OR 12 THE FINANCIAL MANAGEMENT SERVICE OF THE DEPARTMENT OF THE TREASURY OF 13 THE UNITED STATES UNDER WHICH THE COMMISSIONER, ON BEHALF OF THE STATE 14 OF NEW YORK, MAY, IN HIS OR HER DISCRETION, AGREE TO PAY TO A CLAIMANT 15 OWED A DEBT BY A TAXPAYER OR OTHER PERSON THE WHOLE OR PART OF AN OVER- 16 PAYMENT OR A VENDOR PAYMENT OWED BY THE STATE TO THAT TAXPAYER OR OTHER 17 PERSON, PROVIDED THE CLAIMANT GRANTS SUBSTANTIALLY SIMILAR PRIVILEGES TO 18 THIS STATE. HOWEVER, THE UNITED STATES WILL NOT BE REQUIRED UNDER THIS 19 SECTION TO OFFSET TAX OVERPAYMENTS OWED BY IT EXCEPT TO THE EXTENT THAT 20 IT AGREES TO DO SO. AN AGREEMENT WITH THE CLAIMANT MUST SPECIFY THAT A 21 TAXPAYER OR ANY PERSON OWED A VENDOR PAYMENT WILL RECEIVE THIRTY DAYS 22 ADVANCE WRITTEN NOTICE OF THE OFFSET AND WILL BE PROVIDED WITH AN OPPOR- 23 TUNITY TO PRESENT WRITTEN OR ORAL EVIDENCE ABOUT THE APPLICATION OF THE 24 OVERPAYMENT OR VENDOR PAYMENT TO THE DEBT. A PROCEEDING FOR JUDICIAL 25 REVIEW OF THE DECISION IN THE MANNER PROVIDED BY ARTICLE SEVENTY-EIGHT 26 OF THE CIVIL PRACTICE LAW AND RULES MAY BE COMMENCED BY A TAXPAYER OR A 27 PERSON OWED A VENDOR PAYMENT WITHIN FOUR MONTHS AFTER A COPY OF A DECI- 28 SION ADVERSE TO THE TAXPAYER OR THAT PERSON IS MAILED TO THE TAXPAYER OR 29 THAT PERSON. ARTICLE FORTY OF THIS CHAPTER DOES NOT APPLY TO ANY HEARING 30 OR PROCEEDING ON WHETHER AN OVERPAYMENT OR VENDOR PAYMENT MAY BE APPLIED 31 TO A DEBT UNDER THIS SECTION. THE REMEDY PROVIDED BY THIS SECTION FOR 32 REVIEW OF HEARINGS AND PROCEEDINGS IS THE EXCLUSIVE REMEDY AVAILABLE TO 33 JUDICIALLY DETERMINE WHETHER AN OVERPAYMENT OR VENDOR PAYMENT MAY BE 34 APPLIED TO A DEBT UNDER THIS SECTION. THE AMOUNT OF A DEBT REMAINING DUE 35 AS CERTIFIED BY A CLAIMANT WILL BE PRIMA FACIE EVIDENCE OF THE CORRECT 36 AMOUNT OF A DEBT. 37 (3) THE COMMISSIONER WILL CALCULATE THE AMOUNT OF AN OVERPAYMENT AND 38 INTEREST THEREON THAT IS TO BE CREDITED AGAINST THE AMOUNT OF A PAST DUE 39 LEGALLY ENFORCEABLE DEBT OWED BY A TAXPAYER WHICH IS CERTIFIED TO THE 40 DEPARTMENT FOR COLLECTION UNDER THIS SECTION USING THE RULES IN SUBDIVI- 41 SION FIVE OF SECTION ONE HUNDRED SEVENTY-ONE-F OF THIS ARTICLE. IF A 42 TAXPAYER OR A PERSON OWES MORE THAN ONE DEBT WHICH IS CERTIFIED TO THE 43 COMMISSIONER FOR COLLECTION UNDER THIS SECTION, ANY OVERPAYMENT OR 44 VENDOR PAYMENT WILL BE CREDITED AGAINST THE DEBTS IN THE ORDER IN WHICH 45 THE DEBTS ACCRUED. A DEBT WILL BE CONSIDERED TO HAVE ACCRUED AT THE TIME 46 AT WHICH THE DEBT BECAME PAST DUE. 47 (4) NOTWITHSTANDING ANY OTHER LAW, THE COMMISSIONER IS AUTHORIZED TO 48 RELEASE TO A CLAIMANT TAXPAYER INFORMATION FOR PURPOSES OF IMPLEMENTING 49 AND ADMINISTERING AN AGREEMENT ENTERED INTO BETWEEN THE CLAIMANT AND 50 THIS STATE UNDER THIS SECTION. 51 S 2. Subdivision 2 of section 171-p of the tax law, as added by 52 section 1 of part BB-1 of chapter 57 of the laws of 2008, is amended to 53 read as follows: 54 (2) The commissioner may implement procedures under which any cost or 55 fee imposed or charged by the United States or any state, with respect 56 to payment or remittance of a taxpayer's overpayment to satisfy a tax S. 60--A 23 A. 160--A 1 debt of the taxpayer, must not be credited by the commissioner to 2 payment or satisfaction of the tax debt, must be deemed to be part of 3 the taxpayer's tax debt, and must be eligible for offset against the 4 taxpayer's overpayment to the extent permitted by law. THE COMMISSIONER 5 MAY ALSO IMPLEMENT PROCEDURES UNDER WHICH ANY COST OR FEE IMPOSED OR 6 CHARGED BY THE UNITED STATES OR ANY OTHER STATE, WITH RESPECT TO ANY 7 OTHER PAYMENT OR REMITTANCE OF A TAXPAYER'S OVERPAYMENT OR A VENDOR 8 PAYMENT TO SATISFY A DEBT OF THE TAXPAYER OR THE PERSON WHO IS OWED THE 9 VENDOR PAYMENT AS AUTHORIZED BY SECTION ONE HUNDRED SEVENTY-ONE-T OF 10 THIS ARTICLE, MUST NOT BE CREDITED BY THE STATE OF NEW YORK TO PAYMENT 11 OR SATISFACTION OF THE DEBT, MUST BE DEEMED TO BE PART OF THE TAXPAYER'S 12 OR PERSON'S DEBT, AND MUST BE ELIGIBLE FOR OFFSET AGAINST THE TAXPAYER'S 13 OVERPAYMENT OR THE PERSON'S VENDOR PAYMENT TO THE EXTENT PERMITTED BY 14 LAW. 15 S 3. Paragraph (c) of subdivision 1 of section 171-n of the tax law, 16 as added by section 2 of part O of chapter 61 of the laws of 2005, is 17 amended to read as follows: 18 (c) "tax debt" means any past due, legally enforceable tax obligation 19 owed any other state administering that tax, which arises from (i) an 20 enforceable judgment of a court of competent jurisdiction which is no 21 longer subject to judicial review, or (ii) an enforceable determination 22 of an administrative body which is no longer subject to administrative 23 or judicial review, or (iii) an assessment or determination (including 24 self-assessment or self-assessed determination) which has become final 25 or finally and irrevocably fixed and no longer subject to administrative 26 or judicial review[, and which has not been delinquent for more than ten 27 years]; and 28 S 4. This act shall take effect immediately. 29 PART F 30 Section 1. Section 2 of the tax law is amended by adding a new subdi- 31 vision 11 to read as follows: 32 11. THE TERM "OVERCAPITALIZED CAPTIVE INSURANCE COMPANY" MEANS AN 33 ENTITY THAT IS TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION UNDER 34 THE INTERNAL REVENUE CODE (A) MORE THAN FIFTY PERCENT OF THE VOTING 35 STOCK OF WHICH IS OWNED OR CONTROLLED, DIRECTLY OR INDIRECTLY, BY A 36 SINGLE ENTITY THAT IS TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION 37 UNDER THE INTERNAL REVENUE CODE AND NOT EXEMPT FROM FEDERAL INCOME TAX; 38 (B) THAT IS LICENSED AS A CAPTIVE INSURANCE COMPANY UNDER THE LAWS OF 39 THIS STATE OR ANOTHER JURISDICTION; (C) WHOSE BUSINESS INCLUDES PROVID- 40 ING, DIRECTLY AND INDIRECTLY, INSURANCE OR REINSURANCE COVERING THE 41 RISKS OF ITS PARENT AND/OR MEMBERS OF ITS AFFILIATED GROUP; AND (D) 42 FIFTY PERCENT OR LESS OF WHOSE GROSS RECEIPTS FOR THE TAXABLE YEAR 43 CONSIST OF PREMIUMS. FOR PURPOSES OF THIS SUBDIVISION, "AFFILIATED 44 GROUP" HAS THE SAME MEANING AS THAT TERM IS GIVEN IN SECTION 1504 OF THE 45 INTERNAL REVENUE CODE, EXCEPT THAT THE TERM "COMMON PARENT CORPORATION" 46 IN THAT SECTION IS DEEMED TO MEAN ANY PERSON, AS DEFINED IN SECTION 7701 47 OF THE INTERNAL REVENUE CODE; REFERENCES TO "AT LEAST EIGHTY PERCENT" IN 48 SECTION 1504 OF THE INTERNAL REVENUE CODE ARE TO BE READ AS "FIFTY 49 PERCENT OR MORE;" SECTION 1504 OF THE INTERNAL REVENUE CODE IS TO BE 50 READ WITHOUT REGARD TO THE EXCLUSIONS PROVIDED FOR IN SUBSECTION (B) OF 51 THAT SECTION; "PREMIUMS" HAS THE SAME MEANING AS THAT TERM IS GIVEN IN 52 PARAGRAPH ONE OF SUBDIVISION (C) OF SECTION FIFTEEN HUNDRED TEN OF THIS 53 CHAPTER, EXCEPT THAT IT INCLUDES CONSIDERATION FOR ANNUITY CONTRACTS AND 54 EXCLUDES ANY PART OF THE CONSIDERATION FOR INSURANCE, REINSURANCE OR S. 60--A 24 A. 160--A 1 ANNUITY CONTRACTS THAT DO NOT PROVIDE BONA FIDE INSURANCE, REINSURANCE 2 OR ANNUITY BENEFITS; AND "GROSS RECEIPTS" INCLUDES THE AMOUNTS INCLUDED 3 IN GROSS RECEIPTS FOR PURPOSES OF SECTION 501(C) (15) OF THE INTERNAL 4 REVENUE CODE, EXCEPT THAT THOSE AMOUNTS ALSO INCLUDE ALL PREMIUMS AS 5 DEFINED IN THIS SUBDIVISION. 6 S 2. Paragraph (a) of subdivision 4 of section 211 of the tax law is 7 amended by adding a new subparagraph 7 to read as follows: 8 (7) (I) FOR PURPOSES OF THIS SUBPARAGRAPH, THE TERM "CLOSEST CONTROL- 9 LING STOCKHOLDER" MEANS THE CORPORATION THAT INDIRECTLY OWNS OR CONTROLS 10 OVER FIFTY PERCENT OF THE VOTING STOCK OF AN OVERCAPITALIZED CAPTIVE 11 INSURANCE COMPANY; IS SUBJECT TO TAX UNDER THIS ARTICLE OR ARTICLE THIR- 12 TY-TWO OF THIS CHAPTER, OR IS OTHERWISE REQUIRED TO BE INCLUDED IN A 13 COMBINED RETURN OR REPORT UNDER THIS ARTICLE OR ARTICLE THIRTY-TWO OF 14 THIS CHAPTER; AND IS THE FEWEST TIERS OF CORPORATIONS AWAY IN THE OWNER- 15 SHIP STRUCTURE FROM THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY. THE 16 COMMISSIONER IS AUTHORIZED TO PRESCRIBE BY REGULATION OR PUBLISHED GUID- 17 ANCE THE CRITERIA FOR DETERMINING THE CLOSEST CONTROLLING STOCKHOLDER. 18 (II) AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE INCLUDED IN 19 A COMBINED REPORT WITH THE CORPORATION THAT DIRECTLY OWNS OR CONTROLS 20 OVER FIFTY PERCENT OF THE VOTING STOCK OF THE OVERCAPITALIZED CAPTIVE 21 INSURANCE COMPANY IF THAT CORPORATION IS SUBJECT TO TAX OR REQUIRED TO 22 BE INCLUDED IN A COMBINED REPORT UNDER THIS ARTICLE. 23 (III) IF OVER FIFTY PERCENT OF THE VOTING STOCK OF AN OVERCAPITALIZED 24 CAPTIVE INSURANCE COMPANY IS NOT DIRECTLY OWNED OR CONTROLLED BY A 25 CORPORATION THAT IS SUBJECT TO TAX OR REQUIRED TO BE INCLUDED IN A 26 COMBINED REPORT UNDER THIS ARTICLE, THEN THE OVERCAPITALIZED CAPTIVE 27 INSURANCE COMPANY MUST BE INCLUDED IN A COMBINED RETURN OR REPORT WITH 28 THE CORPORATION THAT IS THE CLOSEST CONTROLLING STOCKHOLDER OF THE OVER- 29 CAPITALIZED CAPTIVE INSURANCE COMPANY. IF THE CLOSEST CONTROLLING STOCK- 30 HOLDER OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS SUBJECT TO 31 TAX OR OTHERWISE REQUIRED TO BE INCLUDED IN A COMBINED REPORT UNDER THIS 32 ARTICLE, THEN THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE 33 INCLUDED IN A COMBINED REPORT UNDER THIS ARTICLE. 34 (IV) IF THE CORPORATION THAT DIRECTLY OWNS OR CONTROLS THE VOTING 35 STOCK OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS DESCRIBED IN 36 SUBPARAGRAPH TWO, THREE, OR FIVE OF THIS PARAGRAPH AS A CORPORATION NOT 37 PERMITTED TO MAKE A COMBINED REPORT, THEN THE PROVISIONS IN CLAUSE (III) 38 OF THIS SUBPARAGRAPH MUST BE APPLIED TO DETERMINE THE CORPORATION IN 39 WHOSE COMBINED RETURN OR REPORT THE OVERCAPITALIZED CAPTIVE INSURANCE 40 COMPANY SHOULD BE INCLUDED. IF, UNDER CLAUSE (III) OF THIS SUBPARAGRAPH, 41 THE CORPORATION THAT IS THE CLOSEST CONTROLLING STOCKHOLDER OF THE OVER- 42 CAPITALIZED CAPTIVE INSURANCE COMPANY IS DESCRIBED IN SUBPARAGRAPH TWO, 43 THREE OR FIVE OF THIS PARAGRAPH AS A CORPORATION NOT PERMITTED TO MAKE A 44 COMBINED RETURN, THEN THAT CORPORATION IS DEEMED NOT TO BE IN THE OWNER- 45 SHIP STRUCTURE OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY, AND THE 46 CLOSEST CONTROLLING STOCKHOLDER WILL BE DETERMINED WITHOUT REGARD TO 47 THAT CORPORATION. 48 (V) IF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS REQUIRED UNDER 49 THIS SUBPARAGRAPH TO BE INCLUDED IN A COMBINED REPORT WITH ANOTHER 50 CORPORATION, AND THAT OTHER CORPORATION IS ALSO REQUIRED TO BE INCLUDED 51 IN A COMBINED REPORT WITH ANOTHER RELATED CORPORATION OR CORPORATIONS 52 UNDER THIS PARAGRAPH, THEN THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY 53 MUST BE INCLUDED IN THAT COMBINED REPORT WITH THOSE CORPORATIONS. 54 (VI) IF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS NOT REQUIRED 55 TO BE INCLUDED IN A COMBINED REPORT WITH ANOTHER CORPORATION UNDER 56 CLAUSE (II) OR (III) OF THIS SUBPARAGRAPH, OR IN A COMBINED RETURN UNDER S. 60--A 25 A. 160--A 1 THE PROVISIONS OF SUBPARAGRAPH (V) OF PARAGRAPH TWO OF SUBSECTION (F) OF 2 SECTION FOURTEEN HUNDRED SIXTY-TWO OF THIS CHAPTER, THEN THE OVERCAPI- 3 TALIZED CAPTIVE INSURANCE COMPANY IS SUBJECT TO THE OPENING PROVISIONS 4 OF THIS PARAGRAPH AND THE PROVISIONS OF SUBPARAGRAPH FOUR OF THIS PARA- 5 GRAPH. THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE INCLUDED IN 6 A COMBINED REPORT UNDER THIS ARTICLE WITH ANOTHER CORPORATION IF EITHER 7 THE SUBSTANTIAL INTERCORPORATE TRANSACTIONS REQUIREMENT IN THE OPENING 8 PROVISIONS OF THIS PARAGRAPH OR THE INTER-COMPANY TRANSACTIONS OR AGREE- 9 MENT, UNDERSTANDING, ARRANGEMENT OR TRANSACTION REQUIREMENT OF SUBPARA- 10 GRAPH FOUR OF THIS PARAGRAPH IS SATISFIED, AND BOTH MORE THAN FIFTY 11 PERCENT OF THE VOTING STOCK OF THE OVERCAPITALIZED CAPTIVE INSURANCE 12 COMPANY AND SUBSTANTIALLY ALL OF THE CAPITAL STOCK OF THAT OTHER CORPO- 13 RATION ARE OWNED AND CONTROLLED, DIRECTLY OR INDIRECTLY, BY THE SAME 14 CORPORATION. 15 S 3. Subparagraph 1 of paragraph (b) of subdivision 4 of section 211 16 of the tax law, as amended by section 4 of part FF-1 of chapter 57 of 17 the laws of 2008, is amended to read as follows: 18 (1) Tax. (i) In the case of a combined report the tax shall be meas- 19 ured by the combined entire net income, combined minimum taxable income, 20 combined pre-nineteen hundred ninety minimum taxable income or combined 21 capital, of all the corporations included in the report, including any 22 captive REIT [or], captive RIC OR OVERCAPITALIZED CAPTIVE INSURANCE 23 COMPANY; provided, however, in no event shall the tax measured by 24 combined capital exceed the limitation provided for in paragraph (b) of 25 subdivision one of section two hundred ten of this article. 26 (ii) In the case of a captive REIT or captive RIC required under this 27 subdivision to be included in a combined report, entire net income must 28 be computed as required under subdivision five (in the case of a captive 29 REIT) or subdivision seven (in the case of a captive RIC) of section two 30 hundred nine of this article. However, the deduction under the internal 31 revenue code for dividends paid by the captive REIT or captive RIC to 32 any member of the affiliated group that includes the corporation that 33 directly or indirectly owns over fifty percent of the voting stock of 34 the captive REIT or captive RIC shall not be allowed for taxable years 35 beginning on or after January first, two thousand eight. The term 36 "affiliated group" means "affiliated group" as defined in section 37 fifteen hundred four of the internal revenue code, but without regard to 38 the exceptions provided for in subsection (b) of that section. 39 (III) IN THE CASE OF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY 40 REQUIRED UNDER THIS SUBDIVISION TO BE INCLUDED IN A COMBINED REPORT, 41 ENTIRE NET INCOME MUST BE COMPUTED AS REQUIRED BY SUBDIVISION NINE OF 42 SECTION TWO HUNDRED EIGHT OF THIS ARTICLE. 43 S 4. Subsection (d) of section 1452 of the tax law, as amended by 44 section 5 of part FF-1 of chapter 57 of the laws of 2008, is amended to 45 read as follows: 46 (d) Corporations taxable under article nine-A. Notwithstanding the 47 provisions of this article, all corporations of classes now or hereto- 48 fore taxable under article nine-A of this chapter shall continue to be 49 taxable under article nine-A, except: (1) corporations organized under 50 article five-A of the banking law; (2) corporations subject to article 51 three-A of the banking law, or registered under the federal bank holding 52 company act of nineteen hundred fifty-six, as amended, or registered as 53 a savings and loan holding company (but excluding a diversified savings 54 and loan holding company) under the federal national housing act, as 55 amended, which make a combined return under the provisions of subsection 56 (f) of section fourteen hundred sixty-two; (3) banking corporations S. 60--A 26 A. 160--A 1 described in paragraph nine of subsection (a) of this section; [and] (4) 2 any captive REIT or captive RIC that is required to be included in a 3 combined return under the provisions of subsection (f) of section four- 4 teen hundred sixty-two of this article; AND (5) ANY OVERCAPITALIZED 5 CAPTIVE INSURANCE COMPANY REQUIRED TO BE INCLUDED IN A COMBINED RETURN 6 UNDER SUBSECTION (F) OF SECTION FOURTEEN HUNDRED SIXTY-TWO OF THIS ARTI- 7 CLE. Provided, however, that a corporation described in paragraph three 8 of this subsection which was subject to the tax imposed by article 9 nine-A of this chapter for its taxable year ending during nineteen 10 hundred eighty-four may, on or before the due date for filing its return 11 (determined with regard to extensions) for its taxable year ending 12 during nineteen hundred eighty-five, make a one time election to contin- 13 ue to be taxable under such article nine-A. Such election shall continue 14 to be in effect until revoked by the taxpayer. In no event shall such 15 election or revocation be for a part of a taxable year. 16 S 5. Paragraph 4 of subsection (m) of section 1452 of the tax law, as 17 added by section 6 of part FF-1 of chapter 57 of the laws of 2008, is 18 amended to read as follows: 19 (4) The provisions of this subsection shall not apply to a captive 20 REIT [or], a captive RIC OR AN OVERCAPITALIZED CAPTIVE INSURANCE 21 COMPANY. 22 S 6. Paragraph 2 of subsection (f) of section 1462 of the tax law is 23 amended by adding a new subparagraph (vi) to read as follows: 24 (VI) (A) FOR PURPOSES OF THIS SUBPARAGRAPH, THE TERM "CLOSEST CONTROL- 25 LING STOCKHOLDER" MEANS THE CORPORATION THAT INDIRECTLY OWNS OR CONTROLS 26 OVER FIFTY PERCENT OF THE VOTING STOCK OF AN OVERCAPITALIZED CAPTIVE 27 INSURANCE COMPANY, IS SUBJECT TO TAX UNDER THIS ARTICLE OR ARTICLE 28 NINE-A OF THIS CHAPTER OR OTHERWISE REQUIRED TO BE INCLUDED IN A 29 COMBINED RETURN UNDER THIS ARTICLE OR ARTICLE NINE-A OF THIS CHAPTER, 30 AND IS THE FEWEST TIERS OF CORPORATIONS AWAY IN THE OWNERSHIP STRUCTURE 31 FROM THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY. THE COMMISSIONER IS 32 AUTHORIZED TO PRESCRIBE BY REGULATION OR PUBLISHED GUIDANCE THE CRITERIA 33 FOR DETERMINING THE CLOSEST CONTROLLING STOCKHOLDER. 34 (B) AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE INCLUDED IN A 35 COMBINED RETURN WITH THE BANKING CORPORATION OR BANK HOLDING COMPANY 36 THAT DIRECTLY OWNS OR CONTROLS OVER FIFTY PERCENT OF THE VOTING STOCK OF 37 THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IF THAT BANKING CORPO- 38 RATION OR BANK HOLDING COMPANY IS SUBJECT TO TAX OR REQUIRED TO BE 39 INCLUDED IN A COMBINED RETURN UNDER THIS ARTICLE. 40 (C) IF OVER FIFTY PERCENT OF THE VOTING STOCK OF AN OVERCAPITALIZED 41 CAPTIVE INSURANCE COMPANY IS NOT DIRECTLY OWNED OR CONTROLLED BY A BANK- 42 ING CORPORATION OR BANK HOLDING COMPANY THAT IS SUBJECT TO TAX OR 43 REQUIRED TO BE INCLUDED IN A COMBINED RETURN UNDER THIS ARTICLE, THEN 44 THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE INCLUDED IN A 45 COMBINED RETURN OR REPORT WITH THE CORPORATION THAT IS THE CLOSEST 46 CONTROLLING STOCKHOLDER OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPA- 47 NY. IF THE CLOSEST CONTROLLING STOCKHOLDER OF THE OVERCAPITALIZED 48 CAPTIVE INSURANCE COMPANY IS A BANKING CORPORATION OR BANK HOLDING 49 COMPANY THAT IS SUBJECT TO TAX OR OTHERWISE REQUIRED TO BE INCLUDED IN A 50 COMBINED RETURN UNDER THIS ARTICLE, THEN THE OVERCAPITALIZED CAPTIVE 51 INSURANCE COMPANY MUST BE INCLUDED IN A COMBINED RETURN UNDER THIS ARTI- 52 CLE. 53 (D) IF THE CORPORATION THAT DIRECTLY OWNS OR CONTROLS THE VOTING STOCK 54 OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS DESCRIBED IN SUBPAR- 55 AGRAPH (II) OR (IV) OF PARAGRAPH FOUR OF THIS SUBSECTION AS A CORPO- 56 RATION NOT PERMITTED TO MAKE A COMBINED RETURN, THEN THE PROVISIONS IN S. 60--A 27 A. 160--A 1 CLAUSE (C) OF THIS SUBPARAGRAPH MUST BE APPLIED TO DETERMINE THE CORPO- 2 RATION IN WHOSE COMBINED RETURN OR REPORT THE OVERCAPITALIZED CAPTIVE 3 INSURANCE COMPANY SHOULD BE INCLUDED. IF, UNDER CLAUSE (C) OF THIS 4 SUBPARAGRAPH, THE CORPORATION THAT IS THE CLOSEST CONTROLLING STOCKHOLD- 5 ER OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS DESCRIBED IN 6 SUBPARAGRAPH (II) OR (IV) OF PARAGRAPH FOUR OF THIS SUBSECTION AS A 7 CORPORATION NOT PERMITTED TO MAKE A COMBINED RETURN, THEN THAT CORPO- 8 RATION IS DEEMED NOT TO BE IN THE OWNERSHIP STRUCTURE OF THE OVERCAPI- 9 TALIZED CAPTIVE INSURANCE COMPANY, AND THE CLOSEST CONTROLLING STOCK- 10 HOLDER WILL BE DETERMINED WITHOUT REGARD TO THAT CORPORATION. 11 (E) IF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS REQUIRED UNDER 12 THIS SUBPARAGRAPH TO BE INCLUDED IN A COMBINED RETURN WITH ANOTHER 13 CORPORATION, AND THAT OTHER CORPORATION IS REQUIRED TO BE INCLUDED IN A 14 COMBINED RETURN WITH ANOTHER CORPORATION UNDER OTHER PROVISIONS OF THIS 15 SUBSECTION, THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE 16 INCLUDED IN THAT COMBINED RETURN WITH THOSE CORPORATIONS. 17 S 7. Paragraph 3 of subsection (f) of section 1462 of the tax law, as 18 amended by section 11 of part FF-1 of chapter 57 of the laws of 2008, is 19 amended to read as follows: 20 (3) (i) In the case of a combined return, the tax shall be measured by 21 the combined entire net income, combined alternative entire net income 22 or combined assets of all the corporations included in the return, 23 including any captive REIT [or], captive RIC OR OVERCAPITALIZED CAPTIVE 24 INSURANCE COMPANY. The allocation percentage shall be computed based on 25 the combined factors with respect to all the corporations included in 26 the combined return. In computing combined entire net income and 27 combined alternative entire net income intercorporate dividends and all 28 other intercorporate transactions shall be eliminated and in computing 29 combined assets intercorporate stockholdings and intercorporate bills, 30 notes and accounts receivable and payable and other intercorporate 31 indebtedness shall be eliminated. 32 (ii) In the case of a captive REIT required under this subsection to 33 be included in a combined return, "entire net income" means "real estate 34 investment trust taxable income" as defined in paragraph two of subdivi- 35 sion (b) of section eight hundred fifty-seven (as modified by section 36 eight hundred fifty-eight) of the internal revenue code, plus the amount 37 taxable under paragraph three of subdivision (b) of section eight 38 hundred fifty-seven of that code, subject to the modifications required 39 by section fourteen hundred fifty-three of this article. In the case of 40 a captive RIC required under this subsection to be included in a 41 combined return, "entire net income" means "investment company taxable 42 income" as defined in paragraph two of subdivision (b) of section eight 43 hundred fifty-two (as modified by section eight hundred fifty-five) of 44 the internal revenue code, plus the amount taxable under paragraph three 45 of subdivision (b) of section eight hundred fifty-two of that code, 46 subject to the modifications required by section fourteen hundred 47 fifty-three of this article. However, the deduction under the internal 48 revenue code for dividends paid by the captive REIT or captive RIC to 49 any member of the affiliated group that includes the corporation that 50 directly or indirectly owns over fifty percent of the voting stock of 51 the captive REIT or captive RIC will be limited to the following 52 percentages: (A) fifty percent for taxable years beginning on or after 53 January first, two thousand eight and before January first, two thousand 54 nine; (B) twenty-five percent for taxable years beginning on or after 55 January first, two thousand nine and before January first, two thousand 56 eleven; and (C) zero percent for taxable years beginning on or after S. 60--A 28 A. 160--A 1 January first, two thousand eleven. The term "affiliated group" means 2 "affiliated group" as defined in section fifteen hundred four of the 3 internal revenue code, but without regard to the exceptions provided for 4 in subsection (b) of SUCH section fifteen hundred four. 5 (III) IN THE CASE OF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY 6 REQUIRED UNDER THIS SUBSECTION TO BE INCLUDED IN A COMBINED RETURN, 7 ENTIRE NET INCOME MUST BE COMPUTED AS REQUIRED BY SECTION FOURTEEN 8 HUNDRED FIFTY-THREE OF THIS ARTICLE. 9 S 8. Subdivision (a) of section 1500 of the tax law, as amended by 10 chapter 188 of the laws of 2003, is amended to read as follows: 11 (a) The term "insurance corporation" includes a corporation, associ- 12 ation, joint stock company or association, person, society, aggregation 13 or partnership, by whatever name known, doing an insurance business, 14 and, notwithstanding the provisions of section fifteen hundred twelve of 15 this article, shall include (1) a risk retention group as defined in 16 subsection (n) of section five thousand nine hundred two of the insur- 17 ance law, (2) the state insurance fund and (3) a corporation, associ- 18 ation, joint stock company or association, person, society, aggregation 19 or partnership doing an insurance business as a member of the New York 20 insurance exchange described in section six thousand two hundred one of 21 the insurance law. The definition of the "state insurance fund" 22 contained in this subdivision shall be limited in its effect to the 23 provisions of this article and the related provisions of this chapter 24 and shall have no force and effect other than with respect to such 25 provisions. The term "insurance corporation" shall also include a 26 captive insurance company doing a captive insurance business, as defined 27 in subsections (c) and (b), respectively, of section seven thousand two 28 of the insurance law; provided, however, "insurance corporation" shall 29 not include the metropolitan transportation authority, or a public bene- 30 fit corporation or not-for-profit corporation formed by a city with a 31 population of one million or more pursuant to subsection (a) of section 32 seven thousand five of the insurance law, each of which is expressly 33 exempt from the payment of fees, taxes or assessments, whether state or 34 local; AND PROVIDED FURTHER "INSURANCE CORPORATION" DOES NOT INCLUDE ANY 35 OVERCAPITALIZED CAPTIVE INSURANCE COMPANY. The term "insurance corpo- 36 ration" shall also include an unauthorized insurer operating from an 37 office within the state, pursuant to paragraph five of subsection (b) of 38 section one thousand one hundred one and subsection (i) of section two 39 thousand one hundred seventeen of the insurance law. 40 S 9. Subdivision (a) of section 1502-b of the tax law, as separately 41 amended by chapter 188 and section 3 of part H3 of chapter 62 of the 42 laws of 2003, is amended to read as follows: 43 (a) In lieu of the taxes and tax surcharge imposed by sections fifteen 44 hundred one, fifteen hundred two-a, fifteen hundred five-a, and fifteen 45 hundred ten of this article, every captive insurance company licensed by 46 the superintendent of insurance pursuant to the provisions of article 47 seventy of the insurance law, other than the metropolitan transportation 48 authority and a public benefit corporation or not-for-profit corporation 49 formed by a city with a population of one million or more pursuant to 50 subsection (a) of section seven thousand five of the insurance law, each 51 of which is expressly exempt from the payment of fees, taxes or assess- 52 ments whether state or local, AND OTHER THAN AN OVERCAPITALIZED CAPTIVE 53 INSURANCE COMPANY, shall, for the privilege of exercising its corporate 54 franchise, pay a tax on (1) all gross direct premiums, less return 55 premiums thereon, written on risks located or resident in this state and 56 (2) all assumed reinsurance premiums, less return premiums thereon, S. 60--A 29 A. 160--A 1 written on risks located or resident in this state. The rate of the tax 2 imposed on gross direct premiums shall be four-tenths of one percent on 3 all or any part of the first twenty million dollars of premiums, three- 4 tenths of one percent on all or any part of the second twenty million 5 dollars of premiums, two-tenths of one percent on all or any part of the 6 third twenty million dollars of premiums, and seventy-five thousandths 7 of one percent on each dollar of premiums thereafter. The rate of the 8 tax on assumed reinsurance premiums shall be two hundred twenty-five 9 thousandths of one percent on all or any part of the first twenty 10 million dollars of premiums, one hundred and fifty thousandths of one 11 percent on all or any part of the second twenty million dollars of 12 premiums, fifty thousandths of one percent on all or any part of the 13 third twenty million dollars of premiums and twenty-five thousandths of 14 one percent on each dollar of premiums thereafter. The tax imposed by 15 this section shall be equal to the greater of (i) the sum of the tax 16 imposed on gross direct premiums and the tax imposed on assumed reinsur- 17 ance premiums or (ii) five thousand dollars. 18 S 10. This act shall take effect immediately and apply to taxable 19 years beginning on or after January 1, 2009; provided, however that the 20 amendments to subparagraph 1 of paragraph (b) of subdivision 4 of 21 section 211 of the tax law made by section three of this act shall not 22 affect the expiration of such subparagraph and shall be deemed expired 23 therewith; the amendments to subsection (d) and paragraph 4 of 24 subsection (m) of section 1452 of the tax law made by sections four and 25 five of this act, respectively, shall not affect the expiration and 26 repeal of such subsection and paragraph and shall be deemed expired and 27 repealed therewith; and the amendments to paragraph 3 of subsection (f) 28 of section 1462 of the tax law made by section seven of this act shall 29 not affect the expiration and reversion of such paragraph and shall 30 expire and be deemed repealed therewith. 31 PART G 32 Section 1. Subdivision 1 of section 187-b of the tax law, as amended 33 by section 14 of part W-1 of chapter 109 of the laws of 2006, is amended 34 to read as follows: 35 1. General. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO 36 THOUSAND NINE, A taxpayer shall be allowed a credit, to be credited 37 against the taxes imposed under sections one hundred eighty-three, one 38 hundred eighty-four, and one hundred eighty-five of this article. Such 39 credit, to be computed as hereinafter provided, shall be allowed for 40 alternative fuel vehicle refueling property placed in service during the 41 taxable year. Provided, however, that the amount of such credit allow- 42 able against the tax imposed by section one hundred eighty-four of this 43 article shall be the excess of the credit allowed by this section over 44 the amount of such credit allowable against the tax imposed by section 45 one hundred eighty-three of this article. 46 S 2. Paragraph (g) of subdivision 24 of section 210 of the tax law, as 47 amended by section 15 of part W-1 of chapter 109 of the laws of 2006, is 48 amended to read as follows: 49 (g) Termination. The credit allowed by paragraph (b) of this subdivi- 50 sion shall not apply in taxable years beginning after December thirty- 51 first, two thousand [ten] EIGHT. 52 S 3. Paragraph 6 of subsection (p) of section 606 of the tax law, as 53 amended by section 16 of part W-1 of chapter 109 of the laws of 2006, is 54 amended to read as follows: S. 60--A 30 A. 160--A 1 (6) Termination. The credit allowed by paragraph two of this 2 subsection shall not apply in taxable years beginning after December 3 thirty-first, two thousand [ten] EIGHT. 4 S 4. Subdivision 25 of section 210 of the tax law, as added by section 5 1 of part J of chapter 407 of the laws of 1999, is amended to read as 6 follows: 7 25. Credit for purchase of an automated external defibrillator. [A] 8 FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND NINE, A 9 taxpayer shall be allowed a credit, to be computed as hereinafter 10 provided, against the tax imposed by this article, for the purchase, 11 other than for resale, of an automated external defibrillator, as such 12 term is defined in section three thousand-b of the public health law. 13 The amount of credit shall be the cost to the taxpayer of automated 14 external defibrillators purchased during the taxable year, such credit 15 not to exceed five hundred dollars with respect to each unit purchased. 16 The credit allowed under this subdivision for any taxable year shall not 17 reduce the tax due for such year to less than the higher of the amounts 18 prescribed in paragraphs (c) and (d) of subdivision one of this section. 19 S 5. Subsection (s) of section 606 of the tax law, as added by section 20 3 of part J of chapter 407 of the laws of 1999, is amended to read as 21 follows: 22 (s) Credit for purchase of an automated external defibrillator. [A] 23 FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND NINE, A 24 taxpayer shall be allowed a credit as hereinafter provided, against the 25 tax imposed by this article for the purchase, other than for resale, of 26 an automated external defibrillator, as such term is defined in section 27 three thousand-b of the public health law. The amount of credit shall be 28 the cost to the taxpayer of automated external defibrillators purchased 29 during the taxable year, such credit not to exceed five hundred dollars 30 with respect to each unit purchased. 31 S 6. Subsection (j) of section 1456 of the tax law, as added by 32 section 4 of part J of chapter 407 of the laws of 1999, is amended to 33 read as follows: 34 (j) Credit for purchase of an automated external defibrillator. [A] 35 FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND NINE, A 36 taxpayer shall be allowed a credit as hereinafter provided, against the 37 tax imposed by this article for the purchase, other than for resale, of 38 an automated external defibrillator, as such term is defined in section 39 three thousand-b of the public health law. The amount of the credit 40 shall be the cost to the taxpayer of automated external defibrillators 41 purchased during the taxable year, such credit not to exceed five 42 hundred dollars with respect to each unit purchased. The credit allowed 43 under this subsection for any taxable year shall not reduce the tax due 44 for such year to less than the minimum tax fixed by subsection (b) of 45 section fourteen hundred fifty-five of this article. 46 S 7. Subdivision (l) of section 1511 of the tax law, as amended by 47 section 15 of part H3 of chapter 62 of the laws of 2003, is amended to 48 read as follows: 49 (l) Credit for purchase of an automated external defibrillator. [A] 50 FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND NINE, A 51 taxpayer shall be allowed a credit as hereinafter provided, against the 52 tax imposed by this article for the purchase, other than for resale, of 53 an automated external defibrillator, as such term is defined in section 54 three thousand-b of the public health law. The amount of the credit 55 shall be the cost to the taxpayer of automated external defibrillators 56 purchased during the taxable year, such credit not to exceed five S. 60--A 31 A. 160--A 1 hundred dollars with respect to each unit purchased. The credit allowed 2 under this subdivision for any taxable year shall not reduce the tax due 3 for such year to less than the minimum tax fixed by paragraph four of 4 subdivision (a) of section fifteen hundred two of this article or by 5 section fifteen hundred two-a of this article, whichever is applicable. 6 S 8. Subdivision (a) of section 26 of the tax law, as added by chapter 7 537 of the laws of 2005, is amended to read as follows: 8 (a) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU- 9 ARY FIRST, TWO THOUSAND NINE, A taxpayer, which is subject to tax under 10 article nine, nine-A, twenty-two, thirty-two or thirty-three of this 11 chapter and which is a qualified building owner, shall be allowed a 12 credit against such tax. The amount of the credit allowed under this 13 section shall equal the sum of the number of qualified security officers 14 providing protection to a building or buildings owned by the taxpayer 15 multiplied by three thousand dollars. Provided, however, that in the 16 case of a worker not so employed for a full year, such amount shall be 17 prorated to reflect the length of such employment under regulations of 18 the commissioner. 19 S 9. Subdivision 1 of section 187-n of the tax law, as added by chap- 20 ter 537 of the laws of 2005, is amended to read as follows: 21 1. Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANUARY 22 FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit, to be 23 computed as provided in section twenty-six of this chapter, against the 24 tax imposed by this article. 25 S 10. Paragraph 1 of subsection (ii) of section 606 of the tax law, as 26 added by chapter 537 of the laws of 2005, is amended to read as follows: 27 (1) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU- 28 ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit, to 29 be computed as provided in section twenty-six of this chapter, against 30 the tax imposed by this article. 31 S 11. Paragraph 1 of subsection (t) of section 1456 of the tax law, as 32 added by chapter 537 of the laws of 2005, is amended to read as follows: 33 (1) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU- 34 ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit, to 35 be computed as provided in section twenty-six of this chapter, against 36 the tax imposed by this article. 37 S 12. Paragraph 1 of subdivision (x) of section 1511 of the tax law, 38 as added by chapter 537 of the laws of 2005, is amended to read as 39 follows: 40 (1) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU- 41 ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit, to 42 be computed as provided in section twenty-six of this chapter, against 43 the tax imposed by this article. 44 S 13. Subdivision 1 of section 187-n of the tax law, as added by chap- 45 ter 446 of the laws of 2005, is amended to read as follows: 46 (1) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU- 47 ARY FIRST, TWO THOUSAND NINE, A taxpayer whose business is not substan- 48 tially engaged in the commercial generation, distribution, transmission, 49 or servicing of energy or energy products shall be allowed a credit 50 against the taxes imposed by sections one hundred eighty-three, one 51 hundred eighty-four and one hundred eighty-five of this article, equal 52 to its qualified fuel cell electric generating equipment expenditures. 53 Provided, however, that the amount of such credit allowable against the 54 tax imposed by section one hundred eighty-four of this article shall be 55 the excess of the amount of such credit over the amount of any credit 56 allowed by this section against the tax imposed by section one hundred S. 60--A 32 A. 160--A 1 eighty-three of this article. This credit shall not exceed one thousand 2 five hundred dollars per generating unit with respect to any taxable 3 year. The credit provided for herein shall be allowed with respect to 4 the taxable year in which the fuel cell electric generating equipment is 5 placed in service. 6 S 14. Paragraph (a) of subdivision 37 of section 210 of the tax law, 7 as added by chapter 446 of the laws of 2005, is amended to read as 8 follows: 9 (a) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU- 10 ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit 11 against the tax imposed by this article, equal to its qualified fuel 12 cell electric generating equipment expenditures. This credit shall not 13 exceed one thousand five hundred dollars per generating unit with 14 respect to any taxable year. The credit provided for herein shall be 15 allowed with respect to the taxable year in which the fuel cell electric 16 generating equipment is placed in service. 17 S 15. Paragraph 1 of subsection (g-2) of section 606 of the tax law, 18 as added by chapter 446 of the laws of 2005, is amended to read as 19 follows: 20 (1) General. [An] FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, 21 TWO THOUSAND NINE, AN individual taxpayer shall be allowed a credit 22 against the tax imposed by this article equal to twenty percent of qual- 23 ified fuel cell electric generating equipment expenditures. This credit 24 shall not exceed one thousand five hundred dollars per generating unit 25 with respect to any taxable year. The credit provided for herein shall 26 be allowed with respect to the taxable year in which the fuel cell elec- 27 tric generating equipment is placed in service. 28 S 16. Paragraph 1 of subsection (t) of section 1456 of the tax law, as 29 added by chapter 446 of the laws of 2005, is amended to read as follows: 30 (1) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU- 31 ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit 32 against the tax imposed by this article, equal to its qualified fuel 33 cell electric generating equipment expenditures. This credit shall not 34 exceed one thousand five hundred dollars per generating unit with 35 respect to any taxable year. The credit provided for in this subsection 36 shall be allowed with respect to the taxable year in which the fuel cell 37 electric generating equipment is placed in service. 38 S 17. Paragraph 1 of subdivision (x) of section 1511 of the tax law, 39 as added by chapter 446 of the laws of 2005, is amended to read as 40 follows: 41 (1) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU- 42 ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit 43 against the tax imposed by this article, equal to its qualified fuel 44 cell electric generating equipment expenditures. This credit shall not 45 exceed one thousand five hundred dollars per generating unit with 46 respect to any taxable year. The credit provided for in this subdivision 47 shall be allowed with respect to the taxable year in which the fuel cell 48 electric generating equipment is placed in service. 49 S 18. Paragraph (a) of subdivision 12-F of section 210 of the tax law, 50 as added by section 32 of part A of chapter 56 of the laws of 1998, is 51 amended to read as follows: 52 (a) [A] FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND 53 NINE, A taxpayer shall be allowed a credit against the tax imposed by 54 this article. The amount of the credit shall be equal to one of the 55 following percentages, per each qualified investment in a qualified 56 emerging technology company as defined in section thirty-one hundred S. 60--A 33 A. 160--A 1 two-e of the public authorities law, made during the taxable year, and 2 certified by the commissioner, either: 3 (1) ten percent of qualified investments in qualified emerging tech- 4 nology companies, except for investments made by or on behalf of an 5 owner of the business, including, but not limited to, a stockholder, 6 partner or sole proprietor, or any related person, as defined in subpar- 7 agraph (C) of paragraph three of subsection (b) of section four hundred 8 sixty-five of the internal revenue code, and provided, however, that the 9 taxpayer certifies to the commissioner that the qualified investment 10 will not be sold, transferred, traded, or disposed of during the four 11 years following the year in which the credit is first claimed; or 12 (2) twenty percent of qualified investments in qualified emerging 13 technology companies, except for investments made by or on behalf of an 14 owner of the business, including, but not limited to, a stockholder, 15 partner or sole proprietor, or any related person, as defined in subpar- 16 agraph (C) of paragraph three of subsection (b) of section four hundred 17 sixty-five of the internal revenue code, and provided, however, that the 18 taxpayer certifies to the commissioner that the qualified investment 19 will not be sold, transferred, traded, or disposed of during the nine 20 years following the year in which the credit is first claimed. 21 "Qualified investment" means the contribution of property to a corpo- 22 ration in exchange for original issue capital stock or other ownership 23 interest, the contribution of property to a partnership in exchange for 24 an interest in the partnership, and similar contributions in the case of 25 a business entity not in corporate or partnership form in exchange for 26 an ownership interest in such entity. 27 The total amount of credit allowable to a taxpayer under this provision 28 for all years, taken in the aggregate, shall not exceed one hundred 29 fifty thousand dollars in the case of investments made pursuant to 30 subparagraph one of this paragraph and shall not exceed three hundred 31 thousand dollars in the case of investments made pursuant to subpara- 32 graph two of this paragraph. 33 S 19. Paragraph 1 of subsection (r) of section 606 of the tax law, as 34 added by section 2 of part I of chapter 407 of the laws of 1999, is 35 amended to read as follows: 36 (1) [A] FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND 37 NINE, A taxpayer shall be allowed a credit against the tax imposed by 38 this article. The amount of the credit shall be equal to one of the 39 following percentages, per each qualified investment in a qualified 40 emerging technology company as defined in section thirty-one hundred 41 two-e of the public authorities law, made during the taxable year, and 42 certified by the commissioner, either: 43 (A) ten percent of qualified investments in qualified emerging tech- 44 nology companies, except for investments made by or on behalf of an 45 owner of the business, including, but not limited to, a stockholder, 46 partner or sole proprietor, or any related person, as defined in subpar- 47 agraph (C) of paragraph three of subsection (b) of section four hundred 48 sixty-five of the internal revenue code, and provided, however, that the 49 taxpayer certifies to the commissioner that the qualified investment 50 will not be sold, transferred, traded, or disposed of during the four 51 years following the year in which the credit is first claimed; or 52 (B) twenty percent of qualified investments in qualified emerging 53 technology companies, except for investments made by or on behalf of an 54 owner of the business, including, but not limited to, a stockholder, 55 partner or sole proprietor, or any related person, as defined in subpar- 56 agraph (C) of paragraph three of subsection (b) of section four hundred S. 60--A 34 A. 160--A 1 sixty-five of the internal revenue code, and provided, however, that the 2 taxpayer certifies to the commissioner that the qualified investment 3 will not be sold, transferred, traded, or disposed of during the nine 4 years following the year in which the credit is first claimed. 5 (C) "Qualified investment" means the contribution of property to a 6 corporation in exchange for original issue capital stock or other owner- 7 ship interest, the contribution of property to a partnership in exchange 8 for an interest in the partnership, and similar contributions in the 9 case of a business entity not in corporate or partnership form in 10 exchange for an ownership interest in such entity. The total amount of 11 credit allowable to a taxpayer under this provision for all years, taken 12 in the aggregate, shall not exceed one hundred fifty thousand dollars in 13 the case of investments made pursuant to subparagraph (A) of this para- 14 graph and shall not exceed three hundred thousand dollars in the case of 15 investments made pursuant to subparagraph (B) of this paragraph. 16 S 20. Subdivision (a) of section 20 of the tax law, as added by 17 section 1 of part I of chapter 63 of the laws of 2000, is amended to 18 read as follows: 19 (a) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU- 20 ARY FIRST, TWO THOUSAND NINE, A taxpayer subject to tax under article 21 nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter 22 shall be allowed a credit against such tax, pursuant to the provisions 23 referenced in subdivision (d) of this section. The credit shall be 24 allowed where a taxpayer has made a certified contribution of at least 25 ten million dollars to a qualified transportation improvement project in 26 a prior taxable year. The credit shall be equal to six percent of the 27 taxpayer's increased qualified business facility payroll for the taxable 28 year. The aggregate of all credit amounts allowed to the taxpayer pursu- 29 ant to this section with respect to a certified contribution shall not 30 exceed the amount of such certified contribution. 31 S 21. Subparagraph (B) of paragraph 1 of subsection (i) of section 606 32 of the tax law, as amended by section 2 of part ZZ-1 of chapter 57 of 33 the laws of 2008, is amended to read as follows: 34 (B) shall be treated as the owner of a new business with respect to 35 such share if the corporation qualifies as a new business pursuant to 36 paragraph (j) of subdivision twelve of section two hundred ten of this 37 chapter. 38 The corporation's credit base under 39 section two hundred ten or section 40 With respect to the following fourteen hundred fifty-six of this 41 credit under this section: chapter is: 42 Investment tax credit Investment credit base 43 under subsection (a) or qualified 44 rehabilitation 45 expenditures under 46 subdivision twelve of 47 section two hundred ten 48 Empire zone Cost or other basis 49 investment tax credit under subdivision 50 under subsection (j) twelve-B 51 of section two hundred 52 ten S. 60--A 35 A. 160--A 1 Empire zone Eligible wages under 2 wage tax credit subdivision nineteen of 3 under subsection (k) section two hundred ten 4 or subsection (e) of 5 section fourteen hundred 6 fifty-six 7 Empire zone Qualified investments 8 capital tax credit and contributions under 9 under subsection (l) subdivision twenty of 10 section two hundred ten 11 or subsection (d) of 12 section fourteen hundred 13 fifty-six 14 Agricultural property tax Allowable school 15 credit under subsection (n) district property taxes under 16 subdivision twenty-two of 17 section two hundred ten 18 Credit for employment Qualified first-year wages or 19 of persons with dis- qualified second-year wages 20 abilities under under subdivision 21 subsection (o) twenty-three of section 22 two hundred ten 23 or subsection (f) 24 of section fourteen 25 hundred fifty-six 26 Employment incentive Applicable investment credit 27 credit under subsec- base under subdivision 28 tion (a-1) twelve-D of section two 29 hundred ten 30 Empire zone Applicable investment 31 employment credit under sub- 32 incentive credit under division twelve-C 33 subsection (j-1) of section two hundred ten 34 Alternative fuels credit [Cost] FOR TAXABLE 35 under subsection (p) YEARS BEGINNING 36 BEFORE JANUARY FIRST, 37 TWO THOUSAND NINE, COST 38 under subdivision 39 twenty-four of section two 40 hundred ten 41 Qualified emerging Applicable credit base 42 technology company under subdivision twelve-E 43 employment credit of section two hundred ten 44 under subsection (q) 45 Qualified emerging [Qualified] FOR TAXABLE YEARS 46 technology company BEGINNING BEFORE JANUARY 47 capital tax credit FIRST, TWO THOUSAND NINE, 48 under subsection (r) QUALIFIED S. 60--A 36 A. 160--A 1 investments under 2 subdivision twelve-F of 3 section two hundred ten 4 Credit for purchase of an [Cost] FOR TAXABLE YEARS 5 automated external defibrillator BEGINNING BEFORE JANUARY 6 under subsection (s) FIRST, TWO THOUSAND 7 NINE, COST 8 of an automated 9 external defibrillator under 10 subdivision twenty-five of 11 section two hundred ten 12 or subsection (j) of section 13 fourteen hundred fifty-six 14 Low-income housing Credit amount under 15 credit under subsection (x) subdivision thirty 16 of section two hundred ten or 17 subsection (l) of section 18 fourteen hundred fifty-six 19 Credit for transportation [Amount] FOR TAXABLE 20 improvement contributions YEARS BEGINNING BEFORE 21 under subsection (z) JANUARY FIRST, TWO 22 THOUSAND NINE, AMOUNT 23 of credit under sub- 24 division thirty-two of section 25 two hundred ten or subsection 26 (n) of section fourteen 27 hundred fifty-six 28 QEZE credit for real property Amount of credit under 29 taxes under subsection (bb) subdivision twenty-seven of 30 section two hundred ten or 31 subsection (o) of section 32 fourteen hundred fifty-six 33 QEZE tax reduction credit Amount of benefit period 34 under subsection (cc) factor, employment increase factor 35 and zone allocation 36 factor (without regard 37 to pro ration) under 38 subdivision twenty-eight of 39 section two hundred ten or 40 subsection (p) of section 41 fourteen hundred fifty-six 42 and amount of tax factor 43 as determined under 44 subdivision (f) of section sixteen 45 Green building credit Amount of green building credit 46 under subsection (y) under subdivision thirty-one 47 of section two hundred ten 48 or subsection (m) of section 49 fourteen hundred fifty-six S. 60--A 37 A. 160--A 1 Credit for long-term Qualified costs under 2 care insurance premiums subdivision twenty-five-a of 3 under subsection (aa) section two hundred ten 4 or subsection (k) of section 5 fourteen hundred fifty-six 6 Brownfield redevelopment Amount of credit 7 credit under subsection under subdivision 8 (dd) thirty-three of section 9 two hundred ten 10 or subsection (q) of 11 section fourteen hundred 12 fifty-six 13 Remediated brownfield Amount of credit under 14 credit for real property subdivision thirty-four 15 taxes for qualified of section two hundred 16 sites under subsection ten or subsection (r) of 17 (ee) section fourteen hundred 18 fifty-six 19 Environmental Amount of credit under 20 remediation subdivision thirty-five of 21 insurance credit under section two hundred 22 subsection (ff) ten or subsection 23 (s) of section 24 fourteen hundred 25 fifty-six 26 Empire state film production Amount of credit for qualified 27 credit under subsection (gg) production costs in production 28 of a qualified film under 29 subdivision thirty-six of 30 section two hundred ten 31 Qualified emerging Qualifying expenditures and 32 technology company facilities, development activities under 33 operations and training credit subdivision twelve-G of section 34 under subsection (nn) two hundred ten 35 Security training tax [Amount] FOR TAXABLE YEARS 36 credit under BEGINNING BEFORE JANUARY 37 subsection (ii) FIRST, TWO THOUSAND 38 NINE, AMOUNT 39 of credit 40 under subdivision thirty-seven 41 of section two hundred ten or 42 under subsection (t) of 43 section fourteen hundred fifty-six 44 Credit for qualified fuel [Amount] FOR TAXABLE YEARS 45 cell electric generating equipment BEGINNING BEFORE JANUARY 46 expenditures under subsection (g-2) FIRST, TWO THOUSAND 47 NINE, AMOUNT 48 of credit under 49 subdivision thirty-seven S. 60--A 38 A. 160--A 1 of section two hundred ten 2 or subsection (t) of 3 section fourteen hundred 4 fifty-six 5 Empire state commercial production Amount of credit for qualified 6 credit under subsection (jj) production costs in production 7 of a qualified commercial under 8 subdivision thirty-eight of sec- 9 tion two hundred ten 10 Biofuel production Amount of credit 11 tax credit under under subdivision 12 subsection (jj) thirty-eight of 13 section two hundred ten 14 Clean heating fuel credit Amount of credit under 15 under subsection (mm) subdivision thirty-nine of 16 section two hundred ten 17 Credit for rehabilitation Amount of credit under 18 of historic properties subdivision forty of 19 under subsection (oo) subsection two hundred ten 20 Credit for companies who Amount of credit under 21 provide transportation subdivision forty of 22 to individuals section two hundred ten 23 with disabilities 24 under subsection (oo) 25 S 22. This act shall take effect immediately; provided, however that 26 the empire state film production credit under subsection (gg), the 27 empire state commercial production credit under subsection (jj) and the 28 credit for companies who provide transportation to individuals with 29 disabilities under subsection (oo) of section 606 of the tax law 30 contained in section twenty-one of this act shall expire on the same 31 date as provided in section 9 of part P of chapter 60 of the laws of 32 2004, as amended, section 10 of part V of chapter 62 of the laws of 33 2006, as amended and section 5 of chapter 522 of the laws of 2006, as 34 amended, respectively. 35 PART H 36 Section 1. Subparagraph (A) of paragraph 1 of subsection (b) of 37 section 631 of the tax law is amended by adding a new clause 1 to read 38 as follows: 39 (1) FOR PURPOSES OF THIS SUBPARAGRAPH, THE TERM "REAL PROPERTY LOCATED 40 IN THIS STATE" INCLUDES AN INTEREST IN A PARTNERSHIP, LIMITED LIABILITY 41 CORPORATION, S CORPORATION, OR NON-PUBLICLY TRADED C CORPORATION WITH 42 ONE HUNDRED OR FEWER SHAREHOLDERS (HEREINAFTER THE "ENTITY") THAT OWNS 43 REAL PROPERTY THAT IS LOCATED IN NEW YORK AND HAS A FAIR MARKET VALUE 44 THAT EQUALS OR EXCEEDS FIFTY PERCENT OF ALL THE ASSETS OF THE ENTITY ON 45 THE DATE OF SALE OR EXCHANGE OF THE TAXPAYER'S INTEREST IN THE ENTITY. 46 ONLY THOSE ASSETS THAT THE ENTITY OWNED FOR AT LEAST TWO YEARS BEFORE 47 THE DATE OF THE SALE OR EXCHANGE OF THE TAXPAYER'S INTEREST IN THE ENTI- 48 TY ARE TO BE USED IN DETERMINING THE FAIR MARKET VALUE OF ALL THE ASSETS S. 60--A 39 A. 160--A 1 OF THE ENTITY ON THE DATE OF SALE OR EXCHANGE. THE GAIN OR LOSS DERIVED 2 FROM NEW YORK SOURCES FROM THE TAXPAYER'S SALE OR EXCHANGE OF AN INTER- 3 EST IN AN ENTITY THAT IS SUBJECT TO THE PROVISIONS OF THIS SUBPARAGRAPH 4 IS THE TOTAL GAIN OR LOSS FOR FEDERAL INCOME TAX PURPOSES FROM THAT SALE 5 OR EXCHANGE MULTIPLIED BY A FRACTION, THE NUMERATOR OF WHICH IS THE FAIR 6 MARKET VALUE OF THE REAL PROPERTY LOCATED IN NEW YORK ON THE DATE OF 7 SALE OR EXCHANGE AND THE DENOMINATOR OF WHICH IS THE FAIR MARKET VALUE 8 OF ALL THE ASSETS OF THE ENTITY ON THE DATE OF SALE OR EXCHANGE. 9 S 2. This act shall take effect immediately and shall apply to sales 10 or exchanges of entity interests that occur thirty or more days after 11 the date this act becomes law. 12 PART I 13 Section 1. Paragraph (a) of subdivision 1 of section 197-b of the tax 14 law, as amended by section 1 of part JJ-1 of chapter 57 of the laws of 15 2008, is amended to read as follows: 16 (a) For taxable years beginning on or after January first, nineteen 17 hundred seventy-seven, every taxpayer subject to tax under section one 18 hundred eighty-two, one hundred eighty-two-a, former section one hundred 19 eighty-two-b, one hundred eighty-four, one hundred eighty-six-a or one 20 hundred eighty-six-e of this article, must pay in each year an amount 21 equal to (i) twenty-five percent of the tax imposed under each of such 22 sections for the preceding taxable year if the preceding year's tax 23 exceeded one thousand dollars but was equal to or less than one hundred 24 thousand dollars, or (ii) [thirty] FORTY percent of the tax imposed 25 under any of these sections for the preceding taxable year if the 26 preceding year's tax exceeded one hundred thousand dollars. If the 27 preceding year's tax under section one hundred eighty-four, one hundred 28 eighty-six-a or one hundred eighty-six-e of this article exceeded one 29 thousand dollars and the taxpayer is subject to the tax surcharge 30 imposed by section one hundred eighty-four-a or one hundred eighty-six-c 31 of this article, respectively, the taxpayer must also pay in each such 32 year an amount equal to (i) twenty-five percent of the tax surcharge 33 imposed under such section for the preceding taxable year if the preced- 34 ing year's tax exceeded one thousand dollars but was equal to or less 35 than one hundred thousand dollars, or (ii) [thirty] FORTY percent of the 36 tax surcharge imposed under that section for the preceding taxable year 37 if the preceding year's tax exceeded one hundred thousand dollars. The 38 amount or amounts must be paid with the return or report required to be 39 filed with respect to the tax or tax surcharge for the preceding taxable 40 year or with an application for extension of the time for filing the 41 return or report. 42 S 2. Subdivision (a) of section 213-b of the tax law, as amended by 43 section 2 of part JJ-1 of chapter 57 of the laws of 2008, is amended to 44 read as follows: 45 (a) First installments for certain taxpayers.--In privilege periods of 46 twelve months ending at any time during the calendar year nineteen 47 hundred seventy and thereafter, every taxpayer subject to the tax 48 imposed by section two hundred nine of this chapter must pay with the 49 report required to be filed for the preceding privilege period, or with 50 an application for extension of the time for filing the report, an 51 amount equal to (i) twenty-five percent of the preceding year's tax if 52 the preceding year's tax exceeded one thousand dollars but was equal to 53 or less than one hundred thousand dollars, or (ii) [thirty] FORTY 54 percent of the preceding year's tax if the preceding year's tax exceeded S. 60--A 40 A. 160--A 1 one hundred thousand dollars. If the preceding year's tax under section 2 two hundred nine of this chapter exceeded one thousand dollars and the 3 taxpayer is subject to the tax surcharge imposed by section two hundred 4 nine-B of this chapter, the taxpayer must also pay with the tax 5 surcharge report required to be filed for the preceding privilege peri- 6 od, or with an application for extension of the time for filing the 7 report, an amount equal to (i) twenty-five percent of the tax surcharge 8 imposed for the preceding year if the preceding year's tax was equal to 9 or less than one hundred thousand dollars, or (ii) [thirty] FORTY 10 percent of the tax surcharge imposed for the preceding year if the 11 preceding year's tax exceeded one hundred thousand dollars. 12 S 3. Subsection (a) of section 1461 of the tax law, as amended by 13 section 3 of part JJ-1 of chapter 57 of the laws of 2008, is amended to 14 read as follows: 15 (a) Every taxpayer subject to the tax imposed by section fourteen 16 hundred fifty-one must pay an amount equal to (i) twenty-five percent of 17 the preceding year's tax if the preceding year's tax exceeded one thou- 18 sand dollars but was equal to or less than one hundred thousand dollars, 19 or (ii) [thirty] FORTY percent of the preceding year's tax if the 20 preceding year's tax exceeded one hundred thousand dollars. The amount 21 must be paid with the return required to be filed for the preceding 22 taxable year or with an application for an extension of the time for 23 filing the return. If the preceding year's tax under section fourteen 24 hundred fifty-one OF THIS ARTICLE exceeded one thousand dollars and the 25 taxpayer is subject to the tax surcharge imposed by section fourteen 26 hundred fifty-five-B OF THIS ARTICLE, the taxpayer must also pay with 27 the tax surcharge return required to be filed for the preceding taxable 28 year, or with an application for an extension of the time for filing the 29 return, an amount equal to (i) twenty-five percent of the tax surcharge 30 imposed for the preceding year if the preceding year's tax was equal to 31 or less than one hundred thousand dollars, or (ii) [thirty] FORTY 32 percent of the tax surcharge imposed for the preceding year if the 33 preceding year's tax exceeded one hundred thousand dollars. 34 S 4. Paragraph 1 of subdivision (a) of section 1514 of the tax law, as 35 amended by section 4 of part JJ-1 of chapter 57 of the laws of 2008, is 36 amended to read as follows: 37 (1) Except as otherwise provided in paragraph two of this subdivision, 38 for taxable years beginning on or after January first, nineteen hundred 39 seventy-six, every taxpayer subject to tax under this article must pay 40 in each year an amount equal to (i) twenty-five percent of the tax 41 imposed under this article for the preceding taxable year if the preced- 42 ing year's tax exceeded one thousand dollars but was equal to or less 43 than one hundred thousand dollars, or (ii) [thirty] FORTY percent of the 44 tax imposed under this article for the preceding taxable year if the 45 preceding year's tax exceeded one hundred thousand dollars. If the 46 preceding year's tax exceeded one thousand dollars and the taxpayer is 47 subject to the tax surcharge imposed by section fifteen hundred five-a 48 of this article, the taxpayer must also pay an amount equal to (i) twen- 49 ty-five percent of the tax surcharge imposed under section fifteen 50 hundred five-a for the preceding taxable year if the preceding year's 51 tax was equal to or less than one hundred thousand dollars, or (ii) 52 [thirty] FORTY percent of the tax surcharge imposed for the preceding 53 taxable year if the preceding year's tax exceeded one hundred thousand 54 dollars. 55 S 5. This act shall take effect immediately and shall apply to taxable 56 years beginning on or after January 1, 2010. S. 60--A 41 A. 160--A 1 PART J 2 Section 1. Paragraph 3 of subsection (c) of section 658 of the tax 3 law, as amended by section 1 of part AA-1 of chapter 57 of the laws of 4 2008, is amended to read as follows: 5 (3) Filing fees. (A) Every subchapter K limited liability company, 6 every limited liability company that is a disregarded entity for federal 7 income tax purposes, and every [limited liability] partnership [under 8 article eight-B of the partnership law and every foreign limited liabil- 9 ity partnership,] which has any income derived from New York sources, 10 determined in accordance with the applicable rules of section six 11 hundred thirty-one of this article as in the case of a nonresident indi- 12 vidual, shall, within thirty days after the last day of the taxable 13 year, make a payment of a filing fee. The amount of the filing fee is 14 the amount set forth in subparagraph (B) of this paragraph. The minimum 15 filing fee is twenty-five dollars for taxable years beginning in two 16 thousand eight and [after] THEREAFTER. Limited liability companies that 17 are disregarded [entitled] ENTITIES for federal income tax purposes must 18 pay a filing fee of twenty-five dollars for taxable years beginning on 19 or after January first, two thousand eight. 20 (B) The filing fee will be based on the New York source gross income 21 of the limited liability company or [limited liability] partnership for 22 the taxable year immediately preceding the taxable year for which the 23 fee is due. If the limited liability company or [limited liability] 24 partnership does not have any New York source gross income for the taxa- 25 ble year immediately preceding the taxable year for which the fee is 26 due, the limited liability company or [limited liability] partnership 27 shall pay the minimum filing fee. PARTNERSHIPS, OTHER THAN LIMITED 28 LIABILITY PARTNERSHIPS UNDER ARTICLE EIGHT-B OF THE PARTNERSHIP LAW AND 29 FOREIGN LIMITED LIABILITY PARTNERSHIPS, WITH LESS THAN ONE MILLION 30 DOLLARS IN NEW YORK SOURCE GROSS INCOME ARE EXEMPT FROM THE FILING FEE. 31 New York source gross income is the sum of the partners' or members' 32 shares of federal gross income from the [limited liability] partnership 33 or limited liability company derived from or connected with New York 34 sources, determined in accordance with the provisions of section six 35 hundred thirty-one of this article as if those provisions and any 36 related provisions expressly referred to a computation of federal gross 37 income from New York sources. For this purpose, federal gross income is 38 computed without any allowance or deduction for cost of goods sold. 39 The amount of the filing fee for taxable years beginning on or after 40 January first, two thousand eight will be determined in accordance with 41 the following table: 42 If the New York source gross income is: The fee is: 43 not more than $100,000 $25 44 more than $100,000 but not over $250,000 $50 45 more than $250,000 but not over $500,000 $175 46 more than $500,000 but not over $1,000,000 $500 47 more than $1,000,000 but not over $5,000,000 $1,500 48 more than $5,000,000 but not over $25,000,000 $3,000 49 Over $25,000,000 $4,500 50 (C) No credits provided by this article may be taken against the fee 51 imposed by this paragraph. 52 (D) Where the filing fee is not timely paid, it shall be paid upon 53 notice and demand and shall be assessed, collected and paid in the same S. 60--A 42 A. 160--A 1 manner as taxes, and for those purposes any reference in this article to 2 tax imposed by this article shall be deemed also to refer to this filing 3 fee. 4 S 2. Subsection (a) of section 1304-C of the tax law, as amended by 5 section 5 of part AA-1 of chapter 57 of the laws of 2008, is amended to 6 read as follows: 7 (a) In addition to any other taxes or fees authorized by this article 8 or any other law, any city imposing the taxes authorized by this article 9 is hereby authorized and empowered to adopt and amend local laws provid- 10 ing that every subchapter K limited liability company (as such term is 11 defined in subsection (b) of section thirteen hundred two of this arti- 12 cle), every limited liability company that is a disregarded entity for 13 federal income tax purposes and every [limited liability] partnership 14 [under article eight-B of the partnership law and every foreign limited 15 liability partnership,] which has any income derived from sources within 16 such city, determined in accordance with the applicable rules of section 17 six hundred thirty-one of this chapter as in the case of a state nonres- 18 ident individual (except that in making that determination any refer- 19 ences in section six hundred thirty-one of this chapter to "New York 20 source" or "New York sources" shall be read as references to "New York 21 city source" or "New York city sources" and any references in that 22 section to "this state" or "the state" shall be read as references to 23 "this city" or "the city"), shall within thirty days after the last day 24 of the taxable year make a payment of a filing fee. The amount of the 25 filing fee shall be the amount determined under paragraph three of 26 subsection (c) of section six hundred fifty-eight of this chapter, 27 except that in making that determination any references in that section 28 to "New York source gross income" must be read as reference to "New York 29 city source gross income". Any local law imposing the filing fee author- 30 ized by this section shall provide that where the filing fee is not 31 timely paid, it shall be paid upon notice and demand and shall be 32 assessed, collected and paid in the same manner as the taxes imposed 33 pursuant to the authority of this article, and for these purposes any 34 reference in the local law imposing those taxes to the taxes imposed by 35 that local law shall be deemed also to refer to the filing fee imposed 36 pursuant to the authority of this section. 37 S 3. This act shall take effect immediately and shall apply to taxable 38 years beginning on or after January 1, 2009. 39 PART K 40 Section 1. Section 957 of the general municipal law, as added by chap- 41 ter 686 of the laws of 1986, subdivisions (b) and (f) as amended and 42 subdivisions (c), (g), (i), (j), (k), and (l) as added by chapter 624 of 43 the laws of 1990, subdivision (d) as amended and subdivision (r) as 44 added by section 1 of part HH of chapter 59 of the laws of 2006, para- 45 graphs (iii), (iv), (v) and (vi) of subdivision (d) as added by section 46 5 of part A of chapter 63 of the laws of 2005, subdivision (e) as 47 amended and subdivisions (m), (n) and (o) as added by chapter 708 of the 48 laws of 1993, subdivision (h) as amended by chapter 39 of the laws of 49 2004, subdivision (p) as added by chapter 170 of the laws of 1994, 50 subdivision (q) as amended by chapter 161 of the laws of 2005, subdivi- 51 sions (s) and (t) as added by section 1 of part V-1 of chapter 109 of 52 the laws of 2006, subdivision (u) as added by chapter 494 of the laws of 53 2008 and subdivisions (a), (e), (f), (k), and (m) as further amended S. 60--A 43 A. 160--A 1 pursuant to section 15 of part GG of chapter 63 of the laws of 2000, is 2 amended to read as follows: 3 S 957. Definitions. As used in this article, the following words and 4 terms shall have the following meanings unless the context shall indi- 5 cate another or different meaning or intent: 6 (a) "Applicant" shall mean the county, city, town or village submit- 7 ting an application in the manner authorized by local law for desig- 8 nation of an area as an empire zone. 9 (b) "Commissioner" shall mean the commissioner of economic develop- 10 ment. 11 (c) "Minority-owned business enterprise" shall [mean a business enter- 12 prise, including a sole proprietorship, partnership or corporation, that 13 is: 14 (i) at least fifty-one percent owned by one or more minority group 15 members; 16 (ii) an enterprise in which such minority ownership is real, substan- 17 tial and continuing; 18 (iii) an enterprise in which such minority ownership has and exercises 19 the authority to control independently the day-to-day business decisions 20 of the enterprise; and 21 (iv) an enterprise authorized to do business in this state and inde- 22 pendently owned and operated] HAVE THE SAME MEANING AS PROVIDED IN 23 SECTION THREE HUNDRED TEN OF THE EXECUTIVE LAW. 24 (d) "Empire zone" shall mean an area within the state that has been 25 designated as an empire zone pursuant to this article and: 26 (i) all empire zones designated under paragraph (i) of subdivision (a) 27 and subdivision (d) of section nine hundred fifty-eight of this article 28 shall be referred to as "investment zones" and shall be wholly contained 29 within up to three distinct and separate contiguous areas; provided, 30 however, that empire zones designated prior to the enactment of this 31 paragraph shall identify up to three distinct and separate contiguous 32 areas, which shall equal up to their total allotted acreage at the time 33 of designation by January first, two thousand six. Provided however, the 34 existing zone must include as much designated acreage into the distinct 35 and separate contiguous areas as possible. Provided, however, notwith- 36 standing the provisions of paragraphs (i) and (ii) of subdivision (a) of 37 section nine hundred fifty-eight and subdivision (d) of section nine 38 hundred fifty-nine of this article a regionally significant project may 39 be located outside of the investment zone's distinct and separate 40 contiguous areas, provided such significant project is located within 41 the zone applicant's municipal boundaries. Provided further however, if 42 the investment zone is located in a county that does not have a develop- 43 ment zone such significant project may be located within the county's 44 boundaries. For the purpose of this article a "regionally significant 45 project" shall mean: a manufacturer projecting the creation of fifty or 46 more jobs; or an agri-business or high tech or biotech business making a 47 capital investment of ten million dollars and creating twenty or more 48 jobs; or a financial or insurance services or distribution center creat- 49 ing three hundred or more jobs; or a clean energy research and develop- 50 ment enterprise shall be eligible as a regionally significant project as 51 determined by [the local zone administrative board and] the commission- 52 er. Other projects may be considered by the zone designation board; 53 (ii) all empire zones designated under subdivisions (b) and (c) of 54 section nine hundred fifty-eight of this article shall be referred to as 55 "development zones" and shall be wholly contained within up to six 56 distinct and separate contiguous areas. However, an empire zone located S. 60--A 44 A. 160--A 1 in more than one county at the time of designation shall be wholly 2 contained in up to twelve distinct and separate contiguous areas. 3 Provided, however, that empire zones designated prior to the enactment 4 of this paragraph shall identify up to six distinct and separate contig- 5 uous areas, which shall equal up to their total allotted acreage at the 6 time of designation, by January first, two thousand six or in the case 7 of an empire zone located in more than one county, at the time of desig- 8 nation shall identify twelve distinct and separate contiguous areas. 9 Provided however, the existing zone must include as much designated 10 acreage into the distinct and separate contiguous areas as possible. 11 Provided, however, a regionally significant project may be located 12 outside of the development zone's distinct and separate contiguous 13 areas. For the purpose of this article a "regionally significant 14 project" shall mean: a manufacturer projecting the creation of fifty or 15 more jobs; or an agri-business or high tech or biotech business making a 16 capital investment of ten million dollars and creating twenty or more 17 jobs; or a financial or insurance services or distribution center creat- 18 ing three hundred or more jobs; or a clean energy research and develop- 19 ment enterprise shall be eligible as a regionally significant project as 20 determined by [the local zone administrative board and] the commission- 21 er. Other projects may be considered by the zone designation board; 22 (iii) provided, however, a zone may apply BY NO LATER THAN MARCH THIR- 23 TY-FIRST, TWO THOUSAND NINE to add one additional distinct and separate 24 contiguous area, pursuant to paragraphs (i) and (ii) of this subdivi- 25 sion, to such zone upon the demonstration of need, provided, however, 26 such additional distinct and separate contiguous area shall not result 27 in an empire zone that exceeds the maximum allotted acreage; 28 (iv) a "development zone", pursuant to paragraph (ii) of this subdivi- 29 sion, shall apply BY NO LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND 30 NINE, pursuant to subdivisions (a) and (d) of section nine hundred 31 fifty-eight of this article, to have up to three distinct and separate 32 contiguous areas defined as "investment zones", pursuant to this subdi- 33 vision; 34 (v) any certified businesses located outside of the empire zone's 35 distinct and separate contiguous areas, pursuant to this section, shall 36 be allowed the empire zone benefits until they are decertified; and 37 (vi) the boundaries that comprise the distinct and separate contiguous 38 areas in this subdivision must include at least the real property on one 39 side of a public thoroughfare when such street is used as a boundary. No 40 boundary shall be constructed as to connect one tax parcel to another 41 tax parcel by using a thoroughfare's center line, sidewalk or other 42 similar means of connecting a non-contiguous area to the zone's distinct 43 and separate contiguous areas. 44 (e) "Local empire zone administrative board" shall mean the entity 45 designated by the applicant that is responsible for monitoring, evaluat- 46 ing and coordinating all empire zone benefits on behalf of the appli- 47 cant. Such entity shall consist of at least six members, none of whom 48 shall be the local empire zone certification officer, and shall be 49 representative of local businesses, organized labor, community organiza- 50 tions, financial institutions, local educational institutions and resi- 51 dents of the empire zone. 52 (f) ["Local empire zone certification officer" shall mean the official 53 designated by the applicant who is responsible for jointly certifying 54 and decertifying together with the commissioner and the commissioner of 55 labor those business enterprises eligible to receive benefits pursuant 56 to this article. S. 60--A 45 A. 160--A 1 (g)] "Women-owned business enterprise" shall [mean a business enter- 2 prise, including a sole proprietorship, partnership or corporation, that 3 is: 4 (i) at least fifty-one percent owned by one or more United States 5 citizens or permanent resident aliens who are women; 6 (ii) an enterprise in which the ownership interest of such women is 7 real, substantial and continuing; 8 (iii) an enterprise in which such women ownership has and exercises 9 the authority to control independently the day-to-day business decisions 10 of the enterprise; and 11 (iv) an enterprise authorized to do business in this state and inde- 12 pendently owned and operated] HAVE THE SAME MEANING AS PROVIDED IN 13 SECTION THREE HUNDRED TEN OF THE EXECUTIVE LAW. 14 [(h)] (G) "Locally owned business enterprise" shall mean (i) a busi- 15 ness firm in which the total ownership interest held by individuals who 16 are full time bona fide residents of such zone is more than eighty 17 percent, whose business activities are conducted in a manner whereby at 18 least fifty percent of the assets of such firm are located and utilized 19 in such zone, and at least forty percent of such firm's employees are 20 principally employed in such zone; or (ii) an agricultural cooperative 21 established pursuant to section one hundred eleven of the cooperative 22 corporations law; provided however, for business firms located within 23 zones designated in a city such individuals shall reside within a commu- 24 nity planning board or within traditional neighborhood boundaries and 25 provided further however for business firms located within zones outside 26 of a city such individuals may reside in the county in which the zone is 27 designated. 28 [(i)] (H) "Chief executive" shall mean (i) a county executive or 29 manager of a county; (ii) in a county not having a county executive or 30 manager, the chairperson or other presiding officer of the county legis- 31 lative body; (iii) a mayor of a city or village, except where a city or 32 village has a manager, it shall mean such a manager; or (iv) a supervi- 33 sor of a town, except where a town has a manager, it shall mean such 34 manager. 35 [(j)] (I) "Minority group member" shall [mean a United States citizen 36 or permanent resident alien who is and can demonstrate membership in one 37 of the following groups: 38 (i) Black persons having origins in any of the Black African racial 39 groups; 40 (ii) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban, 41 Central or South American of either Indian or Hispanic origin, regard- 42 less of race; 43 (iii) Native American or Alaskan native persons having origins in any 44 of the original peoples of North America; and 45 (iv) Asian and Pacific Islander persons having origins in any of the 46 Far East countries, South East Asia, the Indian subcontinent or the 47 Pacific Islands] HAVE THE SAME MEANING AS PROVIDED IN SECTION THREE 48 HUNDRED TEN OF THE EXECUTIVE LAW. 49 [(k)] (J) "Targeted employee" shall mean a New York resident who 50 receives empire zone wages pursuant to subdivision nineteen of section 51 two hundred ten of the tax law and who is (i) an eligible individual 52 under the provision of the targeted jobs tax credit (section fifty-one 53 of the internal revenue code), (ii) eligible for benefits under the 54 provisions of the job training partnership act (P.L. 97-300, as 55 amended), (iii) a recipient of public assistance benefits, or (iv) an 56 individual whose income is below the most recently established poverty S. 60--A 46 A. 160--A 1 rate promulgated by the United States department of commerce, or a 2 member of a family whose family income is below the most recently estab- 3 lished poverty rate promulgated by the appropriate federal agency. 4 An individual who satisfies the criteria set forth in clause (i), (ii) 5 or (iv) of this subdivision at the time of initial employment in the job 6 with respect to which the credit is claimed, or who satisfies the crite- 7 rion set forth in clause (iii) of this subdivision at such time or at 8 any time within the previous two years, shall be a targeted employee so 9 long as such individual continues to receive empire zone wages. 10 [(l)] (K) "Single enterprise" means two or more related business 11 enterprises characterized by an absence of arms length relationships 12 found among enterprises that are not integrated. Factors to be consid- 13 ered, among other things, in determining the existence of a single 14 enterprise are interrelation of operations, common management, central- 15 ized control of labor relations, common ownership and common financial 16 control. 17 [(m)] (L) "Zone administrative entity" shall mean a community-based 18 local development corporation or entity contracting with the local 19 empire zone board pursuant to paragraph (viii) of subdivision [(b)] A of 20 section nine hundred sixty-three of this article or the municipality in 21 which the zone is located in those instances where the municipality 22 actively participates in the local administration of the zone program. 23 [(n)] (M) "Human resource development" shall mean job preparation and 24 placement, skills training and education for zone residents and employ- 25 ees of zone businesses, child and family care services and facilities, 26 and activities to improve the health benefits and other benefits 27 provided by zone businesses to their employees. 28 [(o)] (N) "Community development projects" shall mean projects spon- 29 sored by not-for-profit organizations which have been approved by the 30 zone board, which will advance the zone development plan. For purposes 31 described in subdivision twenty of section two hundred ten, subsection 32 (l) of section six hundred six, subsection (d) of section fourteen 33 hundred fifty-six and subdivision (h) of section fifteen hundred eleven 34 of the tax law, such projects shall be limited to child care programs 35 serving zone residents and businesses; community development projects in 36 direct support of economic development and business revitalization 37 activities, such as commercial revitalization projects; and business 38 development activities of local development corporations. 39 [(p)] (O) "Zone equivalent area" shall mean an area designated as such 40 pursuant to FORMER subdivision (bb) of section nine hundred fifty-nine 41 of this article. 42 [(q)] (P) "Cost benefit analysis" shall mean, FOR PURPOSES OF PARA- 43 GRAPH (I) OF SUBDIVISION (A) OF SECTION NINE HUNDRED FIFTY-NINE AND 44 SUBDIVISION (B) OF SECTION NINE HUNDRED SEVENTY OF THIS ARTICLE, a meth- 45 od of determining whether to certify a business [pursuant to section 46 nine hundred sixty-three of this article] ENTERPRISE based on the [busi- 47 ness'] BUSINESS ENTERPRISE'S projected job creation and/or investment 48 [in the zone] AT THE LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER, 49 versus the TOTAL amount of empire zone TAX benefits the business ENTER- 50 PRISE will potentially be allowed to [claim pursuant to sections four- 51 teen, fifteen, and sixteen of the tax law.] USE AND HAVE REFUNDED TO IT 52 AND SHALL BE A RATIO OF AT LEAST 20:1, THE NUMERATOR OF WHICH IS THE SUM 53 OF (I) THE ESTIMATED VALUE OF ALL WAGES AND BENEFITS PAID FOR THE FIRST 54 THREE YEARS OF CERTIFICATION TO ALL EXISTING AND PROJECTED EMPLOYEES OF 55 THE BUSINESS ENTERPRISE AT THE LOCATION OR LOCATIONS APPROVED BY THE 56 COMMISSIONER AND (II) THE ESTIMATED VALUE OF CAPITAL INVESTMENTS FOR THE S. 60--A 47 A. 160--A 1 FIRST THREE YEARS OF CERTIFICATION AT THE LOCATION OR LOCATIONS APPROVED 2 BY THE COMMISSIONER, AND THE DENOMINATOR OF WHICH IS THE ESTIMATED 3 AMOUNT OF TOTAL EMPIRE ZONE TAX BENEFITS THAT MAY BE USED AND MAY BE 4 REFUNDED FOR THE FIRST THREE YEARS OF CERTIFICATION AT THE LOCATION OR 5 LOCATIONS APPROVED BY THE COMMISSIONER. 6 [Such cost benefit analysis shall include, but not be limited to, an 7 estimate for the first five years commencing in the year in which the 8 business is certified, of: (i) the amount of all the state tax credits 9 under the empire zones program which may be claimed by the entity or its 10 members, partners, or shareholders each year, (ii) the value of the 11 sales tax exemption on an annual basis, (iii) the estimated number of 12 jobs created, (iv) the total annual remuneration and benefits for the 13 employees within the zone location, (v) the cost of construction, reno- 14 vation or expansion of the business's location within the zone, and (vi) 15 the investment being made with respect to tangible personal property or 16 other tangible property which is depreciable pursuant to section 179(d) 17 of the Internal Revenue Code. Non-quantifiable factors may include a 18 business enterprise's positive impact on an area that has high commer- 19 cial vacancy rates, and/or is characterized by blight and disinvestment 20 or the business enterprise is part of a strategic industry cluster or 21 supply chain; or is anticipated to access zone capital credits.] 22 (Q) "COST BENEFIT ANALYSIS" SHALL MEAN, FOR PURPOSES OF SUBDIVISION 23 (W) OF SECTION NINE HUNDRED FIFTY-NINE AND SUBDIVISION (D) OF SECTION 24 NINE HUNDRED SEVENTY OF THIS CHAPTER, A METHOD OF DETERMINING WHETHER TO 25 CONTINUE TO CERTIFY A BUSINESS ENTERPRISE AT THE LOCATION OR LOCATIONS 26 APPROVED BY THE COMMISSIONER BASED ON THE BUSINESS ENTERPRISE'S ACTUAL 27 JOB CREATION AND/OR CAPITAL INVESTMENT VERSUS THE TOTAL AMOUNT OF EMPIRE 28 ZONE BENEFITS THE BUSINESS ENTERPRISE USED AND HAD REFUNDED AND SHALL BE 29 A RATIO OF AT LEAST 20:1, THE NUMERATOR OF WHICH IS THE SUM OF (I) THE 30 ACTUAL VALUE OF ALL WAGES AND BENEFITS PAID FOR AT LEAST THREE YEARS OF 31 CERTIFICATION TO ALL EMPLOYEES OF THE BUSINESS ENTERPRISE AT THE 32 LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER AND (II) THE VALUE OF 33 CAPITAL INVESTMENTS FOR AT LEAST THREE YEARS AT THE LOCATION OR 34 LOCATIONS APPROVED BY THE COMMISSIONER, AND THE DENOMINATOR OF WHICH IS 35 THE TOTAL AMOUNT OF EMPIRE ZONE TAX BENEFITS ACTUALLY REFUNDED AND USED 36 BY THE BUSINESS ENTERPRISE FOR AT LEAST THREE YEARS, AT THE LOCATION OR 37 LOCATIONS APPROVED BY THE COMMISSIONER. 38 (r) "Clean energy research and development enterprise" shall mean any 39 electric generating facility that used pulverized coal technology, 40 circulating fluidized bed technology or integrated gasification combined 41 cycle technology and that is capable of capturing carbon dioxide for 42 sequestration or capable of being retrofitted to capture carbon dioxide 43 for sequestration. 44 (s) "Qualified investment project" shall mean a project (i) located 45 within an empire zone, (ii) at which five hundred or more jobs will be 46 created, provided such jobs are new to the state and are in addition to 47 any other jobs previously created by the owner of such project in the 48 state, and (iii) which will consist of tangible personal property and 49 other tangible property, including buildings and structural components 50 of buildings, described in subparagraphs (i), (ii), (iii), (iv) and 51 clause (A) or (C) of subparagraph (v) of paragraph (b) of subdivision 52 twelve-B of section two hundred ten of the tax law, the basis of which 53 for federal income tax purposes will equal or exceed seven hundred fifty 54 million dollars. Provided however, the owner of such project does not 55 employ more than two hundred persons in the state at the time such 56 project is commenced. S. 60--A 48 A. 160--A 1 (t) "Significant capital investment project" shall mean a project (i) 2 located within an empire zone, (ii) which will be either a newly 3 constructed facility or a newly constructed addition to or expansion of 4 a qualified investment project, consisting of tangible personal property 5 and other tangible property, including buildings and structural compo- 6 nents of buildings, described in subparagraphs (i), (ii), (iii), (iv) 7 and clause (A) or (C) of subparagraph (v) of paragraph (b) of subdivi- 8 sion twelve-B of section two hundred ten of the tax law, the basis of 9 which for federal income tax purposes will equal or exceed seven hundred 10 fifty million dollars, (iii) which is constructed after the basis for 11 federal income tax purposes of the property comprising such qualified 12 investment project equals or exceeds seven hundred fifty million 13 dollars, and (iv) at which five hundred or more jobs will be created, 14 provided such jobs are new to the state and are in addition to any other 15 jobs previously created by the owner of such project in the state. 16 (u) In the case of a manufacturer: (i) that has acquired a silicon 17 manufacturing facility: (A) where more than seven hundred fifty persons 18 are employed; (B) that has been designated as a regionally significant 19 project as defined in this article; and (C) which has a cost or other 20 basis for federal income tax purposes in tangible personal property at 21 such silicon manufacturing facility, including equipment and machinery, 22 buildings and structural components of buildings, equal to or exceeding 23 two hundred million dollars; and (ii) that is projecting the creation of 24 fifty or more silicon manufacturing jobs at the silicon manufacturing 25 facility referred to in paragraph (i) of this subdivision, then, subject 26 to the written approval of the commissioner, such manufacturer may elect 27 an effective date for designation of such manufacturing facility as a 28 regionally significant project for purposes of this article, and 29 provided such manufacturer has been certified as an empire zone enter- 30 prise pursuant to this article, and has obtained the written approval of 31 the commissioner, may elect an effective date for such certification as 32 an empire zone enterprise pursuant to this article, provided that such 33 dates are: (A) no earlier than the date that the manufacturing facility 34 is acquired; (B) no earlier than sixty days prior to the date upon which 35 a local law was enacted by the city, county, town or village approving 36 the inclusion of the regionally significant project within the empire 37 zone; and (C) no later than the date the local zone administrative board 38 approves the application for certification as an empire zone enterprise, 39 and further provided that such effective date for designation and such 40 effective date for certification as an empire zone enterprise pursuant 41 to this article shall be the same date. Subject to the written approval 42 of the commissioner, such election shall be made by such manufacturer to 43 the commissioner on or before the second anniversary of the date upon 44 which the local law was enacted by the city, county, town or village 45 approving the inclusion of the regionally significant project within the 46 empire zone. 47 S 2. Paragraph (ii) and the opening paragraph of paragraph (vi) of 48 subdivision (a), subdivision (b), the opening paragraph of subdivision 49 (c), the opening paragraph of subdivision (d) and subdivision (g) of 50 section 958 of the general municipal law, paragraph (ii) and the opening 51 paragraph of paragraph (vi) of subdivision (a) and the opening paragraph 52 of subdivision (c) as amended by chapter 708 of the laws of 1993, subdi- 53 vision (b) as amended by chapter 624 of the laws of 1990, the opening 54 paragraph of subdivision (d) as amended by chapter 41 of the laws of 55 2000, subdivision (g) as added by section 5 of part A of chapter 63 of 56 the laws of 2005, and paragraph (ii) of subdivision (a), subdivision S. 60--A 49 A. 160--A 1 (b), the opening paragraph of subdivision (c), and the opening paragraph 2 of subdivision (d) as further amended pursuant to section 15 of part GG 3 of chapter 63 of the laws of 2000, are amended to read as follows: 4 (ii) lands nearby or contiguous to census tracts or block numbering 5 areas described in paragraph (i) of this subdivision may be eligible to 6 be included within an empire zone if, upon the request of the applicant 7 BY MARCH THIRTY-FIRST, TWO THOUSAND NINE, the commissioner finds, in 8 accordance with regulations promulgated pursuant to this article, that 9 such additional lands have significant potential for business develop- 10 ment and job creation, which will enhance economic revitalization of the 11 zone and benefit zone residents; provided, however, that lands nearby 12 shall not be included in a zone until the commissioner, in consultation 13 with the director of the budget, promulgates regulations governing the 14 inclusion of such lands; 15 such other requirements as may be established in regulations promul- 16 gated by the commissioner [with the approval of the director of the 17 budget and after consultation with the commissioner of labor], including 18 but not limited to: 19 (b) Notwithstanding the provisions of paragraph (i) of subdivision (a) 20 of this section, any county in which the average rate of unemployment in 21 the two most recent calendar years was at least one and one-quarter 22 times the state average for those years and in which the rate of poverty 23 for individuals was at least thirteen percent according to the most 24 recent census data available, and which does not contain a census tract 25 or tracts, portion of a block numbering area or a city, town or village 26 which meets the criteria specified in such paragraph (i) of subdivision 27 (a), may apply BY NO LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND NINE 28 for designation of an area within a municipality as an empire zone. The 29 area proposed for designation shall be characterized by pervasive pover- 30 ty, high unemployment and general economic distress. 31 Notwithstanding the provisions of paragraph (i) of subdivision (a) of 32 this section, any county may apply BY NO LATER THAN MARCH THIRTY-FIRST, 33 TWO THOUSAND NINE for designation of an area within a municipality as an 34 empire zone provided that the following requirements are met: 35 Notwithstanding the provisions of paragraph (i) of subdivision (a) of 36 this section, any municipality may apply BY NO LATER THAN MARCH THIRTY- 37 FIRST, TWO THOUSAND NINE for designation as an empire zone for an area 38 which shall include a United States census tract or tracts or block 39 numbering area or areas or portions thereof, each full census tract or 40 portion of a block numbering area of which according to the most recent 41 census data available has: 42 (g) Notwithstanding any other provision of this section, after March 43 thirty-first, two thousand five, a municipality shall demonstrate in an 44 application for designation as an empire zone SUBMITTED NO LATER THAN 45 MARCH THIRTY-FIRST, TWO THOUSAND NINE, that there is no viable alterna- 46 tive area or areas that has or have existing public sewer or water 47 infrastructure available other than the proposed zone. 48 S 3. Section 959 of the general municipal law, as amended by section 5 49 of part A of chapter 63 of the laws of 2005 and subdivision (w) as 50 amended by section 2 of part CCC1 of chapter 57 of the laws of 2008, is 51 amended to read as follows: 52 S 959. Responsibilities of the commissioner. The commissioner shall: 53 (a) [After consultation with the director of the budget, the commis- 54 sioner of labor, and the commissioner of taxation and finance, promul- 55 gate] PROMULGATE regulations, WHICH, NOTWITHSTANDING ANY PROVISIONS TO 56 THE CONTRARY IN THE STATE ADMINISTRATIVE PROCEDURE ACT, MAY BE ADOPTED S. 60--A 50 A. 160--A 1 ON AN EMERGENCY BASIS, governing (i) [criteria of eligibility for empire 2 zone designation, provided, however, that such criteria be approved by 3 the director of the budget; (ii) the application process; (iii)] the 4 [joint] certification by the commissioner[, the commissioner of labor, 5 and, in the case of an empire zone, the local empire zone certification 6 officer,] as to the eligibility of business enterprises for benefits 7 referred to in section nine hundred sixty-six of this article[, 8 provided, however, that a business enterprise that has shifted its oper- 9 ations, or some portions thereof, from an area within New York state not 10 designated as an empire zone or zone equivalent area to an area so 11 designated shall not be certified to receive such benefits except where 12 such shift is entirely within a municipality and has been approved by 13 the local governing body of such municipality or in situations where it 14 has been established, after a public hearing, that extraordinary circum- 15 stances exist which warrant the relocation of a business, in whole or 16 part, into an empire zone or a zone equivalent area from another munici- 17 pality and the municipality from which the business is relocating 18 approves of such relocation; or where such shift in operations is from a 19 business incubator facility operated by a municipality or by a public or 20 private not-for-profit entity which provides space and business support 21 services to newly established firms]; and [(iv)] (II) the [joint] decer- 22 tification by the commissioner[, the commissioner of labor, and, in the 23 case of an empire zone, the local empire zone certification officer] so 24 as to revoke the certification of business enterprises for benefits 25 referred to in section nine hundred sixty-six of this article with 26 respect to an empire zone or zone equivalent area upon a finding that 27 (1) the business enterprise made material misrepresentations of fact on 28 its application for certification OR IN ANY OF ITS BUSINESS ANNUAL 29 REPORTS, or the business enterprise failed to disclose facts in its 30 application for certification that would constitute grounds for not 31 issuing a certification; (2) the business enterprise has failed to 32 construct, expand, rehabilitate or operate OR INVEST IN its facility 33 substantially in accordance with the representations contained in its 34 application for certification; (3) the business enterprise has failed to 35 create new employment or prevent a loss of employment in the empire zone 36 or zone equivalent area [provided, however, that such failure was not 37 due to economic circumstances or conditions which such business could 38 not anticipate or which were beyond its control]; (4) where applicable, 39 the business enterprise has failed to submit an annual report after it 40 has applied for zone [incentives] TAX BENEFITS or program assistance 41 based on new hires or investments or failed to submit other information 42 [to the local empire zone certification officer] when due; [or] (5) the 43 business enterprise has committed substantial violations of laws for the 44 protection of workers including all federal, state and local labor laws, 45 rules or regulations; OR (6) THE BUSINESS ENTERPRISE HAS FAILED TO MEET 46 THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS AS ESTABLISHED BY AND 47 CONDUCTED PURSUANT TO THIS ARTICLE UNLESS THE COMMISSIONER DETERMINES IN 48 HIS OR HER SOLE DISCRETION THAT CONTINUED CERTIFICATION IS WARRANTED, 49 BASED UPON OTHER ECONOMIC, SOCIAL AND ENVIRONMENTAL FACTORS, AS PROVIDED 50 IN SUBDIVISION (W) OF THIS SECTION; said regulations shall provide that 51 whenever any business enterprise is decertified with respect to an 52 empire zone: (A) the date determined to be the earliest event constitut- 53 ing grounds for revoking certification shall be the effective date of 54 decertification; (B) its certified single enterprise, if any, may also 55 be decertified; and (C) the commissioner shall notify the commissioner 56 of taxation and finance that such decertification has occurred, and such S. 60--A 51 A. 160--A 1 notification should include the effective date of such decertification 2 and the zone or zone equivalent area to which such decertification 3 applies; WITH RESPECT TO ANY BUSINESS ENTERPRISE DECERTIFIED PURSUANT TO 4 SUBPARAGRAPH SIX OF PARAGRAPH (II) OF THIS SUBDIVISION, THAT DECERTIF- 5 ICATION (1) WILL BE EFFECTIVE FOR A TAXABLE YEAR BEGINNING ON OR AFTER 6 JANUARY FIRST, TWO THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND 7 NINE AND FOR SUBSEQUENT TAXABLE YEARS FOR A BUSINESS ENTERPRISE FOR 8 WHICH A REVIEW IS REQUIRED TO BE CONDUCTED PURSUANT TO SUBDIVISION (W) 9 OF THIS SECTION IN CALENDAR YEAR TWO THOUSAND NINE, AND (2) THEREAFTER 10 WILL BE EFFECTIVE FOR THE TAXABLE YEAR DURING WHICH THE COMMISSIONER 11 MAKES HIS OR HER DETERMINATION (PRIOR TO ANY APPEAL) TO REVOKE THE 12 CERTIFICATION OF A BUSINESS ENTERPRISE AND FOR SUBSEQUENT TAXABLE YEARS; 13 (b) Receive BY NO LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND NINE and 14 review applications for designation of areas as empire zones; 15 (c) Analyze and make recommendations to the empire zones designation 16 board for designation of areas as empire zones, provided, however, that 17 all such areas recommended by the commissioner shall meet the require- 18 ments of this article; 19 (d) [Review new applications to replace any previously designated 20 empire zone the designation of which has been terminated or withdrawn; 21 (e)] File notice of the designation or redesignation of an empire zone 22 or of the revision or termination of such designation with the appli- 23 cant, the department of taxation and finance, the secretary of state, 24 with the county, city, town or village clerk of each county, city, town, 25 or village, respectively, in which the empire zone is located, with the 26 school district governing body in which the empire zone is located, with 27 the state board of real property services and with other state and local 28 entities; provided, however, that such notice shall specify the date 29 such action was taken and shall contain a description sufficient to 30 identify the empire zone, including the names of the abutting streets, 31 roads, highways, bodies of water, or other identifying physical 32 features; 33 [(f)] (E) Request, and shall receive from any department, division, 34 board, bureau, commission, agency or public authority of the state such 35 assistance as may be necessary to establish a procedure whereby applica- 36 tions submitted by business entities, community-based organizations, 37 not-for-profit organizations, human service agencies, labor unions and 38 municipal agencies located within an empire zone requesting financial 39 and other assistance provided by state programs, including, but not 40 limited to, capital development, human resource development, business 41 assistance, job training and job placement shall, consistent with feder- 42 al law, be given priority over applications submitted by entities not 43 located in empire zones; 44 [(g)] (F) Establish a priority for the allocation of authority to 45 issue private activity bonds for the benefit of municipalities and busi- 46 ness enterprises located or to be located within empire zones; 47 [(h)] (G) Coordinate, with the local empire zone administrative board 48 and state agencies and authorities, the provision of business develop- 49 ment programs and services for each empire zone in order to stimulate 50 the creation and development of new small businesses, including new 51 small minority-owned and women-owned business enterprises, and may 52 request and shall receive from any department, division, board, bureau, 53 commission, agency or public authority of the state such assistance as 54 may be necessary; 55 [(i)] (H) Coordinate with the comptroller and the commissioner of 56 taxation and finance a linked deposit program. The comptroller and the S. 60--A 52 A. 160--A 1 commissioner of taxation and finance are hereby authorized and empowered 2 to enter into agreements with financial institutions located in or serv- 3 ing the empire zones, to provide for the deposit of funds administered 4 jointly by them in such institutions, at reduced rates of return to the 5 state, in return for commitments by such institutions to businesses of 6 loans of comparable amounts, at reduced interest rates, for business 7 development projects in the zones that will create or preserve jobs; 8 [(j)] (I) Assist each local empire zone board in preparing a small 9 business assistance plan as required by section nine hundred sixty-three 10 of this article and coordinate with the local empire zone administrative 11 board and state agencies and authorities the development of small busi- 12 ness procurement, export and marketing programs for businesses within 13 the empire zones; 14 [(k)] (J) Promulgate regulations[, in consultation with the commis- 15 sioner of labor,] for program evaluation and coordinate implementation 16 of an evaluation system, which is capable of compiling and analyzing 17 accurate and consistent information necessary for an assessment of 18 whether statutory objectives and criteria are being met; 19 [(l)] (K) Review performance objectives and progress in meeting objec- 20 tives with zone boards and zone administrative entities as part of the 21 annual administrative contract process; 22 [(m)] (L) Assist zone boards and zone administrative entities to 23 effect and implement job training and social services agreements and 24 programs provided for in paragraphs (v), (vi) and (vii) of subdivision 25 [(b)] (A) of section nine hundred sixty-three of this article and 26 request and receive from any agency or authority of the state such 27 assistance as may be necessary to improve the delivery and coordination 28 of human resource development programs to the zones; 29 [(n)] (M) Assist zones in increasing their child care capacity and in 30 planning special care activities, including the provision of technical 31 assistance by the department in planning for the provision of child care 32 services in the zones; 33 [(o)] (N) Coordinate with the department of labor, the state education 34 department, the job training partnership council and agencies of the 35 state the inclusion in annual and biennial plans of such entities strat- 36 egies for increasing and improving human resource development services 37 on a priority basis, consistent with federal statutory and regulatory 38 requirements, to residents of the zones and employees of zone busi- 39 nesses, including, but not limited to, the governor's plan for coordi- 40 nation and special services of the job training partnership council, the 41 jobs plan and Wagner-Peyser annual plan for services of the department 42 of labor, and the career education state plan of the state education 43 department; 44 [(p)] (O) Arrange with the job training partnership council the 45 provision of the workforce investment act funds for use within the zones 46 with the cooperation of the service delivery areas in the governor's 47 plan for coordination and special services; 48 [(q)] (P) Subject to the availability of funds, arrange for the allo- 49 cation and reservation of funds from the infrastructure improvement 50 programs of state agencies and authorities to assist the zones to make 51 public improvements necessary for community, commercial, industrial and 52 tourism development projects in support of zone revitalization; 53 [(r)] (Q) Systematically enlist other state agencies and authorities 54 to participate in zone programs and projects and in cooperative planning 55 of interagency zone activities in support of zone revitalization 56 efforts; S. 60--A 53 A. 160--A 1 [(s)] (R) Recommend for economic development loan and grant programs 2 of the department of economic development, urban development corpo- 3 ration, job development authority, and science and technology foundation 4 special terms and conditions for viable zone projects and programs; 5 [(t)] (S) Award preference to be given to applications submitted by or 6 on behalf of zones for entrepreneurial assistance programs under article 7 nine of the omnibus economic development act of nineteen hundred eight- 8 y-seven to support the creation of new entrepreneurial development and 9 entrepreneurial support centers; 10 [(u)] (T) Coordinate with the urban development corporation the 11 creation of a special category of assistance for zones within the 12 regional economic development partnership program, which will make 13 available economic development assistance grants for zone programs and 14 activities, including, but not limited to, planning, service coordi- 15 nation, and local institutional capacity building for human resource 16 development necessary for economic revitalization; planning and develop- 17 ment of small business incubators; job placement and preparedness 18 programs for zones residents; education and training programs for zone 19 businesses; child care programs and projects supportive of business 20 development; technical assistance for minority and women-owned business 21 development; training for zone officials; business and tourism develop- 22 ment and marketing programs; and other innovative programs and activ- 23 ities in support of economic and community development within the zones; 24 [and] 25 [(v)] (U) Assist in the development of a plan, in coordination with 26 the health and insurance departments, to assist zones in obtaining 27 affordable employee health insurance for small business enterprises 28 located within the zone[.]; 29 [(w)] (V) Approve applications for qualification of a business enter- 30 prise as the owner of a qualified investment project or as the owner of 31 a significant capital investment project, as defined in subdivisions (s) 32 and (t), respectively, of section nine hundred fifty-seven of this arti- 33 cle. As a condition for approval of such application, the commissioner 34 is authorized to specify certain requirements to be satisfied as a 35 condition for approval of such application as the commissioner deems 36 necessary to ensure that the project will make a substantial contrib- 37 ution to the economic development of this state. An application for 38 qualification of a business enterprise as the owner of a qualified 39 investment must be submitted by December thirty-first, two thousand 40 nine. An application for qualification of a business as the owner of a 41 significant capital investment project as defined in subdivision (t) of 42 section nine hundred fifty-seven of this article, which application is 43 submitted by an entity previously qualified by the commissioner as the 44 owner of a qualified investment project or an entity which is a related 45 person, as that term is defined in section 465(b)(3)(c) of the internal 46 revenue code, to an entity previously qualified by the commissioner as 47 the owner of a qualified investment project, must be submitted by June 48 thirtieth, two thousand eleven. No applications submitted after these 49 dates may be approved; AND 50 (W) CONDUCT A REVIEW DURING CALENDAR YEAR TWO THOUSAND NINE OF ALL 51 BUSINESS ENTERPRISES CERTIFIED BEFORE APRIL FIRST, TWO THOUSAND FIVE TO 52 DETERMINE WHETHER THE BUSINESS ENTERPRISES HAVE MET THE REQUIREMENTS OF 53 THE COST-BENEFIT ANALYSIS AS SET FORTH IN SUBDIVISION (Q) OF SECTION 54 NINE HUNDRED FIFTY-SEVEN OF THIS ARTICLE AND THE REGULATIONS PROMULGATED 55 UNDER THIS ARTICLE. THEREAFTER IN SUCCEEDING CALENDAR YEARS, THE COMMIS- 56 SIONER SHALL CONDUCT A REVIEW OF ALL BUSINESS ENTERPRISES CERTIFIED ON S. 60--A 54 A. 160--A 1 OR AFTER APRIL FIRST, TWO THOUSAND FIVE, TO DETERMINE WHETHER THE BUSI- 2 NESS ENTERPRISES HAVE MET THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS 3 AS SET FORTH IN SUBDIVISION (Q) OF SECTION NINE HUNDRED FIFTY-SEVEN OF 4 THIS ARTICLE AND THE REGULATIONS PROMULGATED UNDER THIS ARTICLE. THE 5 COST-BENEFIT ANALYSES REFERRED TO IN THIS SUBDIVISION SHALL BE BASED 6 UPON DATA CONTAINED IN AT LEAST THREE BUSINESS ANNUAL REPORTS FILED BY 7 THE BUSINESS ENTERPRISE. IF THE COMMISSIONER DETERMINES THAT A BUSINESS 8 ENTERPRISE MEETS THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS DESCRIBED 9 ABOVE, THE COMMISSIONER SHALL ISSUE AN EMPIRE ZONE RETENTION CERTIFICATE 10 TO THE BUSINESS ENTERPRISE ESTABLISHING THAT THE BUSINESS ENTERPRISE HAS 11 RETAINED ITS CERTIFICATION UNDER THIS ARTICLE. IF ANY BUSINESS ENTER- 12 PRISE FAILS THE COST-BENEFIT ANALYSIS DESCRIBED ABOVE, THE COMMISSIONER 13 SHALL REVOKE THE CERTIFICATION OF SUCH BUSINESS ENTERPRISE PURSUANT TO 14 PARAGRAPH (II) OF SUBDIVISION (A) OF THIS SECTION AND AS SPECIFIED HERE- 15 IN; PROVIDED, HOWEVER, THE COMMISSIONER MAY CONSIDER, IN HIS OR HER SOLE 16 DISCRETION, OTHER ECONOMIC, SOCIAL AND ENVIRONMENTAL FACTORS WHEN EVALU- 17 ATING THE COSTS AND BENEFITS OF A PROJECT TO THE STATE AND WHETHER 18 CONTINUED CERTIFICATION IS WARRANTED BASED ON SUCH FACTORS. THE COMMIS- 19 SIONER SHALL PROVIDE WRITTEN NOTIFICATION TO SUCH BUSINESS ENTERPRISE OF 20 HIS OR HER DETERMINATION TO REVOKE THE CERTIFICATION, INCLUDING THE 21 REASONS THEREFOR. SUCH NOTIFICATION SHALL STATE THAT THE BUSINESS ENTER- 22 PRISE MAY APPEAL THE DETERMINATION BY SENDING A WRITTEN NOTICE TO THE 23 COMMISSIONER OF SUCH APPEAL NO LATER THAN TEN BUSINESS DAYS FROM THE 24 DATE OF THE COMMISSIONER'S REVOCATION NOTIFICATION. PROVIDED THAT THE 25 BUSINESS ENTERPRISE APPEALS THE COMMISSIONER'S DETERMINATION WITHIN TEN 26 BUSINESS DAYS OF THE COMMISSIONER'S REVOCATION NOTIFICATION, THE BUSI- 27 NESS ENTERPRISE MAY PRESENT A WRITTEN SUBMISSION TO THE COMMISSIONER NO 28 LATER THAN SIXTY DAYS FOLLOWING THE DATE THE COMMISSIONER'S REVOCATION 29 NOTIFICATION WAS SENT TO THE BUSINESS ENTERPRISE EXPLAINING WHY IT 30 FAILED THE COST-BENEFIT ANALYSIS. THE COMMISSIONER SHALL CONSIDER THE 31 EXPLANATION PROVIDED BY THE BUSINESS ENTERPRISE, BUT SHALL NOT REVERSE 32 THE DETERMINATION TO REVOKE THE BUSINESS ENTERPRISE'S CERTIFICATION IF 33 THE COMMISSIONER FINDS IN HIS OR HER SOLE DISCRETION THAT THERE WAS 34 INSUFFICIENT EVIDENCE PRESENTED DEMONSTRATING THAT THE BUSINESS ENTER- 35 PRISE IN FACT MET THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS, OR THAT 36 ANY EXTRAORDINARY CIRCUMSTANCES OCCURRED WHICH WOULD EXPLAIN WHY THE 37 BUSINESS ENTERPRISE FAILED THE COST-BENEFIT ANALYSIS. 38 S 4. Subdivisions (b) and (c) of section 959-b of the general munici- 39 pal law, as added by section 17 of part W1 of chapter 109 of the laws of 40 2006, are amended to read as follows: 41 (b) The commissioner of economic development shall serve as the sole 42 certification officer for businesses seeking certification as a clean 43 energy enterprise. The commissioner of economic development, after 44 consultation with the executive director of the New York state energy 45 research and development authority, shall promulgate regulations govern- 46 ing (i) criteria of eligibility for designation of a clean energy enter- 47 prise, (ii) the application process, and (iii) the certification by the 48 commissioner of economic development as to the eligibility of business 49 enterprises for benefits referred to in section nine hundred sixty-six 50 of this article. A business so certified shall be deemed to be eligible 51 for such benefits as if such business were located in an investment zone 52 as defined in paragraph (i) of subdivision (d) of section nine hundred 53 fifty-seven of this article. No such certification shall be made after 54 [December] MARCH thirty-first, two thousand [eleven] NINE. 55 (c) Such enterprise shall be exempt from the requirements of paragraph 56 (iii) of subdivision (a) of section nine hundred fifty-eight, sections S. 60--A 55 A. 160--A 1 [nine hundred sixty-one,] nine hundred sixty-two and nine hundred 2 sixty-three of this article. 3 S 5. Subdivisions (a-1) and (a-2) and the opening paragraph of para- 4 graph (ii) of subdivision (e) of section 960 of the general municipal 5 law, subdivision (a-1) as amended by section 2 of part HH of chapter 59 6 of the laws of 2006, subdivision (a-2) as added and the opening para- 7 graph of paragraph (ii) of subdivision (e) as amended by section 5 of 8 part A of chapter 63 of the laws of 2005, are amended to read as 9 follows: 10 (a-1) The empire zones designation board may consider designating 11 empire zone acreage for the following categories of regionally signif- 12 icant projects as set forth in section nine hundred fifty-seven of this 13 article SUBMITTED FOR APPROVAL NO LATER THAN MARCH THIRTY-FIRST, TWO 14 THOUSAND NINE: agri-business or high tech or biotech business making a 15 capital investment of ten million dollars and creating twenty or more 16 jobs; or a financial or insurance services or distribution center creat- 17 ing three hundred or more jobs; or a clean energy research and develop- 18 ment enterprise. Such consideration shall be upon application SUBMITTED 19 by the [local zone administrative board and/or the] commissioner NO 20 LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND NINE. Such application shall 21 be made after a public hearing in accordance with section nine hundred 22 sixty-nine of this article and in accordance with findings which shall 23 consider factors including but not limited to: the creation and 24 retention of a regionally significant number of skilled or otherwise 25 quality jobs; substantial capital investment; or the export of a 26 substantial amount of goods or services beyond the immediate region; and 27 further findings as to why such project cannot be accommodated within 28 the distinct and separate contiguous areas pursuant to section nine 29 hundred fifty-seven of this article. Such findings shall be published 30 once a week for four successive weeks, in two newspapers of the county 31 of which the project is to be located or if no newspaper is published 32 therein, in the newspaper nearest thereto. Proof of such publication 33 shall be submitted to the board. The board shall not act on such project 34 or projects until thirty days of the final publication of such findings. 35 (a-2) The empire zones designation board may consider designating 36 empire zone acreage for other regionally significant projects in accord- 37 ance with section nine hundred fifty-seven of this article, upon appli- 38 cation SUBMITTED by the [local zone administrative board and/or the] 39 commissioner NO LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND NINE. Such 40 application shall be made after a public hearing in accordance with 41 section nine hundred sixty-nine of this article and in accordance with 42 findings which shall consider factors including, but not limited to: the 43 creation and retention of a regionally significant number of skilled or 44 otherwise quality jobs; substantial capital investment; or the export of 45 a substantial amount of goods or services beyond the immediate region; 46 and further findings as to why such project cannot be accommodated with- 47 in the distinct and separate contiguous areas pursuant to section nine 48 hundred fifty-seven of this article. Such findings shall be published 49 once a week for four successive weeks, in two newspapers of the county 50 of which the project is to be located or if no newspaper is published 51 therein, in the newspaper nearest thereto. Proof of such publication 52 shall be submitted to the board. The board shall not act on such project 53 or projects until thirty days of the final publication of such findings. 54 Provided, however, that the commissioner shall promulgate rules and 55 regulations for the implementation of this subdivision after approval by 56 the empire zones designation board. Provided further, approval of such S. 60--A 56 A. 160--A 1 projects and related regulations requires an affirmative vote by at 2 least five voting members of such board. 3 An entity independent of the department shall conduct and submit to 4 the governor and the legislature by no later than [December] AUGUST 5 thirty-first, two thousand [nine] TEN, a comprehensive evaluation of the 6 performance of the zones program and of individual zones on meeting 7 criteria established pursuant to this section. The criteria by which the 8 empire zones program and individual zones are to be evaluated shall 9 include, but not be limited to, the following: 10 S 6. Section 961 of the general municipal law is REPEALED. 11 S 7. Subdivision (y) of section 962 of the general municipal law, as 12 added by section 5 of part A of chapter 63 of the laws of 2005, is 13 amended to read as follows: 14 (y) a description of how the local economic development entities, [as 15 described in paragraph (xii) of subdivision (b) of section nine hundred 16 sixty-one of this article] INCLUDING BUT NOT LIMITED TO THE LOCAL DEVEL- 17 OPMENT CORPORATION, LOCAL DEVELOPMENT COUNCILS, AUTHORITIES, AGENCIES 18 AND ALL OTHER SUCH ENTITLES CONCERNED WITH THE ECONOMIC DEVELOPMENT OF 19 THE MUNICIPALITY, will integrate its services to allow for the best 20 possible economic development support for the zone; 21 S 8. Subdivision (cc) of section 962 of the general municipal law is 22 REPEALED. 23 S 9. Subdivision (a) of section 963 of the general municipal law is 24 REPEALED and subdivisions (b), (c), (d), (e), (f) and (g) are relettered 25 (a), (b), (c), (d), (e) and (f). 26 S 10. Subdivision (f) of section 963 of the general municipal law, as 27 added by section 5 of part A of chapter 63 of the laws of 2005, and as 28 relettered by section nine of this act, is amended to read as follows: 29 (f) All [certified] businesses CERTIFIED ON OR BEFORE MARCH 30 THIRTY-FIRST, TWO THOUSAND NINE are required to provide a certified 31 annual report to the local zone administration board which report shall 32 include but not be limited to the following: 33 (i) Business certification information to include: organization name, 34 organization address in the zone, contact information, federal employ- 35 ment ID number, New York state unemployment insurance number, state of 36 formation or incorporation, verification that the business is authorized 37 to conduct business in the state of New York; 38 (ii) Employment numbers calculated in the same manner in which the 39 employment number is required to be calculated by section fourteen of 40 the tax law including: total existing full-time equivalent jobs [in the 41 zone] AT THE LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER as of 42 the date of certification [within that zone], total existing jobs [in 43 the zone] AT THE LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER for 44 the year for which the report is being provided, total remuneration paid 45 to employees [in the zone] AT THE LOCATION OR LOCATIONS APPROVED BY THE 46 COMMISSIONER each quarter of the reported year, total number of employ- 47 ees in all [zones] LOCATIONS, total annual remuneration in all [zones] 48 LOCATIONS, total annual remuneration paid in New York state for the 49 reported year, total employment number in New York state for the 50 reported year as shown on each business' NYS-45 wage reporting form 51 filed with the department of labor; 52 (iii) Capital investment to include: total investment made in the 53 [zone] LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER for the 54 reported year[, with such investment being made with respect to tangible 55 personal property or other tangible property which is depreciable pursu- S. 60--A 57 A. 160--A 1 ant to section one hundred seventy-nine (d) of the internal revenue 2 code]; 3 (iv) Tax [credits claimed] BENEFITS USED AND REFUNDED: provide an 4 estimation of the amount of the [following credits claimed] TAX BENEFITS 5 USED AND REFUNDED for the reported year by the certified business, or by 6 the taxpayers within the certified business including its shareholders, 7 members, partners or the owner of a sole proprietorship[:] INCLUDING THE 8 wage tax credits, investment tax credits, employment incentive tax cred- 9 its, real property tax credit, [and] tax reduction credit; and 10 (v) [Other benefits: estimated value to the certified business of the] 11 THE sales tax [exemption] CREDITS AND REFUNDS for the reported year. 12 S 11. Subdivision (a) of section 964 of the general municipal law, as 13 amended by chapter 708 of the laws of 1993 and as further amended pursu- 14 ant to section 15 of part GG of chapter 63 of the laws of 2000, is 15 amended to read as follows: 16 (a) No more than three empire zone capital corporations may be estab- 17 lished in each zone for the purpose of raising funds through private and 18 public grants, donations or investments, to be used in making invest- 19 ments in, and loans to, business firms certified pursuant to subdivision 20 (a) of section nine hundred [sixty-three] FIFTY-NINE of this article for 21 the purpose of encouraging the establishment or expansion of businesses 22 and the provision of additional job opportunities within such area. A 23 zone capital corporation may serve one or more zones within an economic 24 development region or zones within two or more regions. Prior to the 25 establishment of a zone capital corporation, the zone board and the 26 commissioner of the department of economic development shall approve the 27 formation of the proposed zone capital corporation, its board of direc- 28 tors and management, and its procedures for making, servicing and moni- 29 toring investments. In no event, however, shall an empire zone capital 30 corporation acquire an ownership interest in any certified business firm 31 which amounts to more than twenty-five percent of the ownership interest 32 of such certified business firm. No loan to or investment in any busi- 33 ness firm shall be made by an empire zone capital corporation located in 34 a zone within a town with a population of more than twenty-five thou- 35 sand, until such corporation has accumulated at least two hundred thou- 36 sand dollars in capital stock. No loan or investment in any business 37 firm shall be made by an empire zone capital corporation located in a 38 zone within a town with a population of less than twenty-five thousand 39 until such corporation has accumulated at least one hundred thousand 40 dollars in capital stock. A zone capital corporation shall submit to the 41 zone board an annual report on its activities. 42 S 12. Subdivision (b) and the opening paragraph of subdivision (c) of 43 section 969 of the general municipal law, as amended by section 5 of 44 part A of chapter 63 of the laws of 2005, are amended to read as 45 follows: 46 (b) After consultation with the director of the budget [and the 47 commissioner of labor], the commissioner may terminate the designation 48 of an area as an empire zone upon a finding that (1) the applicant has 49 failed substantially to implement the empire zone development plan with- 50 in the time stated therein; (2) there has been no substantial business 51 development or job creation within the area designated as an empire zone 52 within five years after such designation; (3) there has been inadequate 53 management and evaluation of the zone at the local level; or (4) the 54 applicant has repeatedly failed to comply with program reporting 55 requirements, provided, however, that no termination shall occur unless 56 and until written notice has been given to the applicant and a public S. 60--A 58 A. 160--A 1 hearing has been held thirty days prior to the effective date of such 2 termination. 3 The governing body of a city, county, town or village may, by resol- 4 ution, submit to the commissioner a request to revise the boundaries of 5 an existing empire zone. The commissioner may[, after consultation with 6 the commissioner of labor,] approve such revision subject to the follow- 7 ing provisions: 8 S 13. The general municipal law is amended by adding a new section 970 9 to read as follows: 10 S 970. CERTIFICATION OF MANUFACTURING (INCLUDING HIGH-TECH, BIO-TECH, 11 CLEAN-TECH AND AGRI-BUSINESS), AND FINANCIAL SERVICE ENTERPRISES, AND 12 EXTRAORDINARY PROJECTS. 13 (A) NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS ARTI- 14 CLE, COMMENCING APRIL FIRST, TWO THOUSAND NINE, ONLY (I) MANUFACTURING 15 (INCLUDING HIGH-TECH, BIO-TECH, CLEAN-TECH, AND AGRI-BUSINESS) AND 16 FINANCIAL SERVICE ENTERPRISES AND EXTRAORDINARY PROJECTS, AS DEFINED IN 17 THE REGULATIONS PROMULGATED PURSUANT TO SUBDIVISIONS (B) AND (C) OF THIS 18 SECTION, AND (II) THE OWNER OF A QUALIFIED INVESTMENT PROJECT OR A 19 SIGNIFICANT CAPITAL INVESTMENT PROJECT, IN ACCORDANCE WITH THE REQUIRE- 20 MENTS AND CONDITIONS SET FORTH IN SUBDIVISION (V) OF SECTION NINE 21 HUNDRED FIFTY-NINE OF THIS ARTICLE, MAY APPLY FOR CERTIFICATION PURSUANT 22 TO THIS ARTICLE. 23 (B) THE COMMISSIONER SHALL SERVE AS THE SOLE CERTIFICATION OFFICER FOR 24 BUSINESS ENTERPRISES APPLYING FOR CERTIFICATION AS MANUFACTURING 25 (INCLUDING HIGH-TECH, BIO-TECH, CLEAN-TECH AND AGRI-BUSINESS) AND FINAN- 26 CIAL SERVICE ENTERPRISES. THE COMMISSIONER SHALL PROMULGATE REGULATIONS 27 (I) DEFINING MANUFACTURING (INCLUDING HIGH-TECH, BIO-TECH, CLEAN-TECH 28 AND AGRI-BUSINESS) AND FINANCIAL SERVICE ENTERPRISES; (II) GOVERNING THE 29 CRITERIA FOR THE CERTIFICATION OF MANUFACTURING (INCLUDING HIGH-TECH, 30 BIO-TECH, CLEAN-TECH AND AGRI-BUSINESS) AND FINANCIAL SERVICE ENTER- 31 PRISES (WHICH CRITERIA SHALL INCLUDE, BUT NOT BE LIMITED TO, MEETING THE 32 REQUIREMENTS OF THE COST BENEFIT ANALYSIS REFERRED TO IN SUBDIVISION (P) 33 OF SECTION NINE HUNDRED FIFTY-SEVEN OF THIS ARTICLE); AND (III) ESTAB- 34 LISHING THE APPLICATION PROCESS FOR CERTIFICATION. NOTWITHSTANDING ANY 35 OTHER PROVISIONS TO THE CONTRARY IN THE STATE ADMINISTRATIVE PROCEDURE 36 ACT, SUCH REGULATIONS MAY BE ADOPTED ON AN EMERGENCY BASIS. A BUSINESS 37 SO CERTIFIED SHALL BE DEEMED TO BE ELIGIBLE FOR BENEFITS REFERRED TO IN 38 SECTION NINE HUNDRED SIXTY-SIX OF THIS ARTICLE AS IF SUCH BUSINESS WERE 39 LOCATED IN AN INVESTMENT ZONE AS DEFINED IN PARAGRAPH (I) OF SUBDIVISION 40 (D) OF SECTION NINE HUNDRED FIFTY-SEVEN OF THIS ARTICLE. 41 (C) THE COMMISSIONER SHALL SERVE AS THE SOLE CERTIFICATION OFFICER FOR 42 BUSINESS ENTERPRISES APPLYING FOR CERTIFICATION OF EXTRAORDINARY 43 PROJECTS. THE COMMISSIONER SHALL PROMULGATE REGULATIONS (I) DEFINING 44 EXTRAORDINARY PROJECTS; (II) ESTABLISHING THE APPLICATION PROCESS FOR 45 CERTIFICATION; AND (III) GOVERNING THE CRITERIA FOR CERTIFICATION OF AN 46 EXTRAORDINARY PROJECT, WHICH CRITERIA SHALL INCLUDE, BUT NOT BE LIMITED 47 TO, (1) WHETHER THE EXTRAORDINARY PROJECT, IF CERTIFIED, IS REASONABLY 48 LIKELY TO CREATE SUBSTANTIAL NEW EMPLOYMENT OR PREVENT A SUBSTANTIAL 49 LOSS OF EMPLOYMENT; (2) WHETHER CERTIFICATION WILL HAVE THE UNDESIRED 50 EFFECT OF CAUSING INDIVIDUALS TO TRANSFER FROM EXISTING EMPLOYMENT WITH 51 ANOTHER BUSINESS ENTERPRISE TO SIMILAR EMPLOYMENT WITH THE BUSINESS 52 ENTERPRISE SO CERTIFIED, AND TRANSFERRING EXISTING EMPLOYMENT FROM ONE 53 OF MORE OTHER MUNICIPALITIES, TOWNS OR VILLAGES IN THE STATE; (3) WHETH- 54 ER SUCH EXTRAORDINARY PROJECT IS LIKELY TO BRING SUBSTANTIAL CAPITAL 55 INVESTMENT; (4) WHETHER THE EXTRAORDINARY PROJECT IS LIKELY TO LEAD TO 56 THE EXPORT OF A SUBSTANTIAL AMOUNT OF GOODS OR SERVICES BEYOND THE IMME- S. 60--A 59 A. 160--A 1 DIATE REGION; (5) WHETHER THE BUSINESS ENTERPRISE, DURING THE THREE 2 YEARS PRECEDING THE SUBMISSION OF AN APPLICATION FOR CERTIFICATION, HAS 3 ENGAGED IN A SUBSTANTIAL VIOLATION OR A PATTERN OF VIOLATIONS OF LAWS 4 REGULATING ENVIRONMENTAL PROTECTION, UNEMPLOYMENT INSURANCE, WORKERS' 5 COMPENSATION, PUBLIC WORK, CHILD LABOR, EMPLOYMENT OF MINORITIES AND 6 WOMEN, SAFETY AND HEALTH, OR OTHER LAWS FOR THE PROTECTION OF WORKERS AS 7 DETERMINED BY FINAL JUDGMENT OF A JUDICIAL OR ADMINISTRATIVE PROCEEDING; 8 (6) IF THE COMMISSIONER ESTABLISHES THAT THE BUSINESS ENTERPRISE HAS 9 BEEN FOUND IN A CRIMINAL PROCEEDING TO HAVE VIOLATED, IN THE PREVIOUS 10 THREE YEARS, ANY OF THE LAWS REFERRED TO IN PARAGRAPH FIVE OF THIS 11 SUBDIVISION OR REGULATIONS PROMULGATED PURSUANT TO SUCH LAWS, THE CONDI- 12 TIONS OF ANY PERMIT ISSUED THEREUNDER, OR SIMILAR STATUTE, REGULATION, 13 ORDER OR PERMIT CONDITION OF ANY OTHER GOVERNMENT AGENCY, FOREIGN OR 14 DOMESTIC, SUCH BUSINESS SHALL NOT BE CERTIFIED. NOTWITHSTANDING ANY 15 OTHER PROVISIONS TO THE CONTRARY IN THE STATE ADMINISTRATIVE PROCEDURE 16 ACT, SUCH REGULATIONS MAY BE ADOPTED ON AN EMERGENCY BASIS. A BUSINESS 17 SO CERTIFIED SHALL BE DEEMED TO BE ELIGIBLE FOR SUCH BENEFITS AS IF SUCH 18 BUSINESS WERE LOCATED IN AN INVESTMENT ZONE AS DEFINED IN PARAGRAPH (I) 19 OF SUBDIVISION (D) OF SECTION NINE-HUNDRED FIFTY-SEVEN OF THIS ARTICLE. 20 (D) ALL BUSINESS ENTERPRISES CERTIFIED ON OR AFTER APRIL FIRST, TWO 21 THOUSAND NINE PURSUANT TO SUBDIVISIONS (B) OR (C) OF THIS SECTION OR 22 PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THIS 23 ARTICLE SHALL BE REQUIRED TO MEET THE REQUIREMENTS OF THE COST-BENEFIT 24 ANALYSIS ESTABLISHED IN SUBDIVISION (Q) OF SECTION NINE HUNDRED 25 FIFTY-SEVEN OF THIS ARTICLE AND THE REGULATIONS PROMULGATED UNDER THIS 26 ARTICLE AFTER THEY HAVE BEEN CERTIFIED FOR AT LEAST THREE YEARS. FAILURE 27 TO MEET THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS SHALL RESULT IN 28 THE BUSINESS ENTERPRISE BEING DECERTIFIED PURSUANT TO PARAGRAPH (II) OF 29 SUBDIVISION (A) OF SECTION NINE HUNDRED FIFTY-NINE OF THIS ARTICLE, 30 UNLESS THE COMMISSIONER MAKES A DETERMINATION IN HIS OR HER DISCRETION 31 TO RETAIN THE CERTIFICATION OF A BUSINESS ENTERPRISE, NOTWITHSTANDING 32 THE FAILURE TO MEET THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS, IN 33 ACCORDANCE WITH SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF 34 THIS ARTICLE. 35 (E) ALL BUSINESSES CERTIFIED PURSUANT TO THIS SECTION ARE REQUIRED TO 36 PROVIDE A CERTIFIED ANNUAL REPORT TO THE COMMISSIONER WHICH REPORT SHALL 37 INCLUDE BUT NOT BE LIMITED TO THE FOLLOWING: 38 (I) BUSINESS CERTIFICATION INFORMATION TO INCLUDE: ORGANIZATION NAME, 39 ORGANIZATION ADDRESS, CONTACT INFORMATION, FEDERAL EMPLOYMENT ID NUMBER, 40 NEW YORK STATE UNEMPLOYMENT INSURANCE NUMBER, STATE OF FORMATION OR 41 INCORPORATION, VERIFICATION THAT THE BUSINESS IS AUTHORIZED TO CONDUCT 42 BUSINESS IN THE STATE OF NEW YORK; 43 (II) EMPLOYMENT NUMBERS CALCULATED IN THE SAME MANNER IN WHICH THE 44 EMPLOYMENT NUMBER IS REQUIRED TO BE CALCULATED BY SECTION FOURTEEN OF 45 THE TAX LAW INCLUDING: TOTAL EXISTING FULL-TIME EQUIVALENT JOBS AT THE 46 LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER AS OF THE DATE OF 47 CERTIFICATION, TOTAL EXISTING JOBS AT THE LOCATION OR LOCATIONS APPROVED 48 BY THE COMMISSIONER FOR THE YEAR FOR WHICH THE REPORT IS BEING PROVIDED, 49 TOTAL REMUNERATION PAID TO EMPLOYEES AT THE LOCATION OR LOCATIONS 50 APPROVED BY THE COMMISSIONER EACH QUARTER OF THE REPORTED YEAR, TOTAL 51 NUMBER OF EMPLOYEES IN ALL LOCATIONS, TOTAL ANNUAL REMUNERATION IN ALL 52 LOCATIONS, TOTAL ANNUAL REMUNERATION PAID IN NEW YORK STATE FOR THE 53 REPORTED YEAR, TOTAL EMPLOYMENT NUMBER IN NEW YORK STATE FOR THE 54 REPORTED YEAR AS SHOWN ON EACH BUSINESS' NYS-45 WAGE REPORTING FORM 55 FILED WITH THE DEPARTMENT OF LABOR; S. 60--A 60 A. 160--A 1 (III) TOTAL CAPITAL INVESTMENT MADE IN THE LOCATION OR LOCATIONS 2 APPROVED BY THE COMMISSIONER FOR THE REPORTED YEAR; 3 (IV) TOTAL EMPIRE ZONE TAX BENEFITS: PROVIDE AN ESTIMATION OF THE 4 TOTAL AMOUNT OF EMPIRE ZONE TAX BENEFITS USED AND THE TOTAL AMOUNT OF 5 EMPIRE ZONE TAX BENEFITS REFUNDED FOR THE REPORTED YEAR BY THE CERTIFIED 6 BUSINESS, OR BY THE TAXPAYERS WITHIN THE CERTIFIED BUSINESS INCLUDING 7 ITS SHAREHOLDERS, MEMBERS, PARTNERS OR THE OWNER OF A SOLE PROPRIETOR- 8 SHIP, INCLUDING BUT NOT LIMITED TO WAGE TAX CREDITS, INVESTMENT TAX 9 CREDITS, EMPLOYMENT INCENTIVE TAX CREDITS, REAL PROPERTY TAX CREDIT, TAX 10 REDUCTION CREDIT; AND SALES TAX BENEFITS. 11 S 14. Subdivision 19 of section 210 of the tax law is amended by 12 adding a new paragraph (e-1) to read as follows: 13 (E-1) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE 14 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT 15 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL 16 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE 17 CREDIT. 18 S 15. Subsection (k) of section 606 of the tax law is amended by 19 adding a new paragraph 5-a to read as follows: 20 (5-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE 21 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT 22 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL 23 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE 24 CREDIT. 25 S 16. Subsection (e) of section 1456 of the tax law is amended by 26 adding a new paragraph 5-a to read as follows: 27 (5-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE 28 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT 29 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL 30 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE 31 CREDIT. 32 S 17. Subdivision (g) of section 1511 of the tax law is amended by 33 adding a new paragraph 5-a to read as follows: 34 (5-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE 35 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT 36 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL 37 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE 38 CREDIT. 39 S 18. Subdivision 12-B of section 210 of the tax law is amended by 40 adding a new paragraph (d-1) to read as follows: 41 (D-1) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE 42 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT 43 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL 44 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE 45 CREDIT. 46 S 19. Subsection (j) of section 606 of the tax law is amended by 47 adding a new paragraph 4-a to read as follows: 48 (4-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE 49 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT 50 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL 51 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE 52 CREDIT. 53 S 20. Subdivision 12-C of section 210 of the tax law is amended by 54 adding a new paragraph (c-1) to read as follows: 55 (C-1) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE 56 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT S. 60--A 61 A. 160--A 1 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL 2 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE 3 CREDIT. 4 S 21. Subsection (j-1) of section 606 of the tax law is amended by 5 adding a new paragraph 3-a to read as follows: 6 (3-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE 7 ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT, 8 IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY 9 PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE 10 GENERAL MUNICIPAL LAW. 11 S 22. Subdivision 20 of section 210 of the tax law is amended by 12 adding a new paragraph (b-1) to read as follows: 13 (B-1) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE 14 ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT, 15 IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY 16 PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE 17 GENERAL MUNICIPAL LAW. 18 S 23. Subsection (1) of section 606 of the tax law is amended by 19 adding a new paragraph 1-a to read as follows: 20 (1-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE 21 ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT, 22 IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY 23 PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE 24 GENERAL MUNICIPAL LAW. 25 S 24. Subsection (d) of section 1456 of the tax law is amended by 26 adding a new paragraph 2-a to read as follows: 27 (2-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE 28 ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT, 29 IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY 30 PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE 31 GENERAL MUNICIPAL LAW. 32 S 25. Subdivision (h) of section 1511 of the tax law is amended by 33 adding a new paragraph 2-a to read as follows: 34 (2-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE 35 ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT, 36 IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY 37 PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE 38 GENERAL MUNICIPAL LAW. 39 S 26. Section 1088 of the tax law is amended by adding a new 40 subsection (h) to read as follows: 41 (H) NOTWITHSTANDING ANY OTHER PROVISION IN THIS SECTION, FOR TAXABLE 42 YEARS BEGINNING ON OR AFTER JANUARY FIRST, TWO THOUSAND EIGHT AND BEFORE 43 JANUARY FIRST, TWO THOUSAND NINE, INTEREST WILL BE ALLOWED ON AN OVER- 44 PAYMENT ON ANY RETURN OR REPORT ON WHICH ONE OR MORE EMPIRE ZONE TAX 45 CREDITS ARE CLAIMED, ONLY FROM THE ONE HUNDRED EIGHTIETH DAY AFTER THE 46 TAXPAYER FILES WITH THE DEPARTMENT AN EMPIRE ZONE RETENTION CERTIFICATE 47 ISSUED PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF 48 THE GENERAL MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE 49 BASIS FOR THE TAX CREDIT OR CREDITS CLAIMED ON THE RETURN OR REPORT. 50 S 27. Section 688 of the tax law is amended by adding a new subsection 51 (h) to read as follows: 52 (H) NOTWITHSTANDING ANY OTHER PROVISIONS IN THIS SECTION, FOR TAXABLE 53 YEARS BEGINNING ON OR AFTER JANUARY FIRST, TWO THOUSAND EIGHT AND BEFORE 54 JANUARY FIRST, TWO THOUSAND NINE, INTEREST WILL BE ALLOWED ON AN OVER- 55 PAYMENT ON ANY RETURN OR REPORT ON WHICH ONE OR MORE EMPIRE ZONE TAX 56 CREDITS ARE CLAIMED, ONLY FROM THE ONE HUNDRED EIGHTIETH DAY AFTER THE S. 60--A 62 A. 160--A 1 TAXPAYER FILES WITH THE DEPARTMENT AN EMPIRE ZONE RETENTION CERTIFICATE 2 ISSUED PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF 3 THE GENERAL MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE 4 BASIS FOR THE TAX CREDIT OR CREDITS CLAIMED ON THE RETURN OR REPORT. 5 S 28. Subsection (c) of section 1089 of the tax law is amended by 6 adding a new paragraph 4 to read as follows: 7 (4) NOTWITHSTANDING PARAGRAPH THREE OF THIS SUBSECTION, NO PETITION 8 MAY BE FILED BY A TAXPAYER CLAIMING A REFUND OF ONE OR MORE EMPIRE ZONE 9 TAX CREDITS FOR A TAXABLE YEAR BEGINNING ON OR AFTER JANUARY FIRST, TWO 10 THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND NINE, UNTIL SIX 11 MONTHS HAVE EXPIRED AFTER THE DATE ON WHICH AN EMPIRE ZONE RETENTION 12 CERTIFICATE WAS ISSUED PURSUANT TO SUBDIVISION (W) OF SECTION NINE 13 HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW TO THE EMPIRE ZONE 14 ENTERPRISE WHICH IS THE BASIS FOR THE TAX CREDIT OR CREDITS CLAIMED ON 15 THE RETURN OR REPORT. 16 S 29. Subsection (c) of section 689 of the tax law is amended by 17 adding a new paragraph 4 to read as follows: 18 (4) NOTWITHSTANDING PARAGRAPH THREE OF THIS SUBSECTION, NO PETITION 19 MAY BE FILED BY A TAXPAYER CLAIMING A REFUND OF ONE OR MORE EMPIRE ZONE 20 TAX CREDITS FOR A TAXABLE YEAR BEGINNING ON OR AFTER JANUARY FIRST, TWO 21 THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND NINE, UNTIL SIX 22 MONTHS HAVE EXPIRED AFTER THE DATE ON WHICH AN EMPIRE ZONE RETENTION 23 CERTIFICATE WAS ISSUED PURSUANT TO SUBDIVISION (W) OF SECTION NINE 24 HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW TO THE EMPIRE ZONE 25 ENTERPRISE WHICH IS THE BASIS FOR THE TAX CREDIT OR CREDITS CLAIMED ON 26 THE RETURN OR REPORT. 27 S 30. Section 1085 of the tax law is amended by adding a new 28 subsection (k-2) to read as follows: 29 (K-2) NO PENALTY WILL BE IMPOSED PURSUANT TO SUBSECTION (C) OR (K) OF 30 THIS SECTION FOR A TAXABLE YEAR BEGINNING ON OR AFTER JANUARY FIRST, TWO 31 THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND NINE RESULTING 32 FROM THE DENIAL OF AN EMPIRE ZONE TAX CREDIT CLAIMED BY THE TAXPAYER 33 BECAUSE AN EMPIRE ZONE RETENTION CERTIFICATE WAS NOT ISSUED PURSUANT TO 34 SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNIC- 35 IPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS FOR THE TAX 36 CREDIT OR CREDITS CLAIMED ON THE RETURN OR REPORT. 37 S 31. Section 685 of the tax law is amended by adding a new subsection 38 (p-2) to read as follows: 39 (P-2) NO PENALTY WILL BE IMPOSED PURSUANT TO SUBSECTION (C) OR (P) OF 40 THIS SECTION FOR A TAXABLE YEAR BEGINNING ON OR AFTER JANUARY FIRST, TWO 41 THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND NINE RESULTING 42 FROM THE DENIAL OF AN EMPIRE ZONE TAX CREDIT CLAIMED BY THE TAXPAYER 43 BECAUSE AN EMPIRE ZONE RETENTION CERTIFICATE WAS NOT ISSUED PURSUANT TO 44 SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNIC- 45 IPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS FOR THE TAX 46 CREDIT OR CREDITS CLAIMED ON THE RETURN. 47 S 32. Subdivision (z) of section 1115 of the tax law is REPEALED. 48 S 33. Section 1119 of the tax law is amended by adding a new subdivi- 49 sion (d) to read as follows: 50 (D)(1) SUBJECT TO THE CONDITIONS AND LIMITATIONS PROVIDED FOR IN THIS 51 SECTION, A REFUND OR CREDIT WILL BE ALLOWED FOR TAXES IMPOSED ON THE 52 RETAIL SALE OF TANGIBLE PERSONAL PROPERTY DESCRIBED IN SUBDIVISION (A) 53 OF SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE, AND ON EVERY SALE OF 54 SERVICES DESCRIBED IN SUBDIVISIONS (B) AND (C) OF SUCH SECTION, AND ON 55 THE RETAIL SALE OF PRE-WRITTEN COMPUTER SOFTWARE, WHETHER SUBJECT TO THE 56 TAX UNDER SUBDIVISION (A) OR (G) OF SUCH SECTION, AND CONSIDERATION S. 60--A 63 A. 160--A 1 GIVEN OR CONTRACTED TO BE GIVEN FOR, OR FOR THE USE OF, SUCH TANGIBLE 2 PERSONAL PROPERTY OR SERVICES, OR PRE-WRITTEN COMPUTER SOFTWARE WHERE 3 SUCH TANGIBLE PERSONAL PROPERTY OR SERVICES OR PRE-WRITTEN COMPUTER 4 SOFTWARE ARE SOLD TO A QUALIFIED EMPIRE ZONE ENTERPRISE, PROVIDED THAT 5 (A) SUCH TANGIBLE PERSONAL PROPERTY OR TANGIBLE PERSONAL PROPERTY UPON 6 WHICH SUCH A SERVICE HAS BEEN PERFORMED OR SUCH SERVICE (OTHER THAN A 7 SERVICE DESCRIBED IN SUBDIVISION (B) OF SECTION ELEVEN HUNDRED FIVE OF 8 THIS ARTICLE) OR PRE-WRITTEN COMPUTER SOFTWARE IS DIRECTLY AND PREDOMI- 9 NANTLY, OR SUCH A SERVICE DESCRIBED IN CLAUSE (A) OR (D) OF PARAGRAPH 10 ONE OF SUCH SUBDIVISION (B) OF SECTION ELEVEN HUNDRED FIVE OF THIS ARTI- 11 CLE IS DIRECTLY AND EXCLUSIVELY, USED OR CONSUMED BY SUCH ENTERPRISE IN 12 AN AREA DESIGNATED AS AN EMPIRE ZONE PURSUANT TO ARTICLE EIGHTEEN-B OF 13 THE GENERAL MUNICIPAL LAW WITH RESPECT TO WHICH SUCH ENTERPRISE IS 14 CERTIFIED PURSUANT TO SUCH ARTICLE EIGHTEEN-B, OR (B) SUCH A SERVICE 15 DESCRIBED IN CLAUSE (B) OR (C) OF PARAGRAPH ONE OF SUBDIVISION (B) OF 16 SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE IS DELIVERED AND BILLED TO 17 SUCH ENTERPRISE AT AN ADDRESS IN SUCH EMPIRE ZONE, OR (C) THE ENTER- 18 PRISE'S PLACE OF PRIMARY USE OF THE SERVICE DESCRIBED IN PARAGRAPH TWO 19 OF SUCH SUBDIVISION (B) OF SECTION 1105 IS AT AN ADDRESS IN SUCH EMPIRE 20 ZONE; PROVIDED, FURTHER, THAT, IN ORDER FOR A MOTOR VEHICLE, AS DEFINED 21 IN SUBDIVISION (C) OF SECTION ELEVEN HUNDRED SEVENTEEN OF THIS ARTICLE, 22 OR TANGIBLE PERSONAL PROPERTY RELATED TO SUCH A MOTOR VEHICLE TO BE 23 FOUND TO BE USED PREDOMINANTLY IN SUCH A ZONE, AT LEAST FIFTY PERCENT OF 24 SUCH MOTOR VEHICLE'S USE SHALL BE EXCLUSIVELY WITHIN SUCH ZONE OR AT 25 LEAST FIFTY PERCENT OF SUCH MOTOR VEHICLE'S USE SHALL BE IN ACTIVITIES 26 ORIGINATING OR TERMINATING IN SUCH ZONE, OR BOTH; AND EITHER OR BOTH 27 SUCH USAGES SHALL BE COMPUTED EITHER ON THE BASIS OF MILEAGE OR HOURS OF 28 USE, AT THE DISCRETION OF SUCH ENTERPRISE. FOR PURPOSES OF THIS SUBDIVI- 29 SION, TANGIBLE PERSONAL PROPERTY RELATED TO SUCH A MOTOR VEHICLE SHALL 30 INCLUDE A BATTERY, DIESEL MOTOR FUEL, AN ENGINE, ENGINE COMPONENTS, 31 MOTOR FUEL, A MUFFLER, TIRES AND SIMILAR TANGIBLE PERSONAL PROPERTY USED 32 IN OR ON SUCH A MOTOR VEHICLE. 33 (2) SUBJECT TO THE CONDITIONS AND LIMITATIONS PROVIDED FOR IN THIS 34 SECTION, A REFUND OR CREDIT WILL BE ALLOWED FOR TAXES IMPOSED ON THE 35 RETAIL SALE OF, AND CONSIDERATION GIVEN OR CONTRACTED TO BE GIVEN FOR, 36 OR FOR THE USE OF, TANGIBLE PERSONAL PROPERTY SOLD TO A CONTRACTOR, 37 SUBCONTRACTOR OR REPAIRMAN FOR USE IN (A) ERECTING A STRUCTURE OR BUILD- 38 ING OF A QUALIFIED EMPIRE ZONE ENTERPRISE, (B) ADDING TO, ALTERING OR 39 IMPROVING REAL PROPERTY, PROPERTY OR LAND OF SUCH AN ENTERPRISE OR (C) 40 MAINTAINING, SERVICING OR REPAIRING REAL PROPERTY, PROPERTY OR LAND OF 41 SUCH AN ENTERPRISE, AS THE TERMS REAL PROPERTY, PROPERTY OR LAND ARE 42 DEFINED IN THE REAL PROPERTY TAX LAW; PROVIDED, HOWEVER, NO CREDIT OR 43 REFUND WILL BE ALLOWED UNDER THIS PARAGRAPH UNLESS SUCH TANGIBLE 44 PERSONAL PROPERTY IS TO BECOME AN INTEGRAL COMPONENT PART OF SUCH STRUC- 45 TURE, BUILDING, REAL PROPERTY, PROPERTY OR LAND LOCATED IN AN AREA 46 DESIGNATED AS AN EMPIRE ZONE PURSUANT TO ARTICLE EIGHTEEN-B OF THE 47 GENERAL MUNICIPAL LAW IN, AND WITH RESPECT TO WHICH SUCH ENTERPRISE IS 48 CERTIFIED PURSUANT TO SUCH ARTICLE EIGHTEEN-B. 49 (3) EXCEPT AS OTHERWISE PROVIDED BY LAW, THE REFUND OR CREDIT PROVIDED 50 FOR IN THIS SUBDIVISION WILL NOT APPLY TO TAXES IMPOSED BY PARAGRAPHS 51 TEN AND THIRTEEN OF SUBDIVISION (C) OF SECTIONS 1105-D, 1105-F, AND 52 ELEVEN HUNDRED SEVEN OF THIS ARTICLE OR TO TAXES IMPOSED PURSUANT TO THE 53 AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER. 54 (4) IN THOSE INSTANCES WHEN THE PROVISIONS OF SUBDIVISION (W) OF 55 SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW ARE APPLI- 56 CABLE, NO REFUND OR CREDIT WILL BE ALLOWED UNDER THIS SUBDIVISION UNLESS S. 60--A 64 A. 160--A 1 THE QUALIFIED EMPIRE ZONE ENTERPRISE HAS BEEN ISSUED AN EMPIRE ZONE 2 RETENTION CERTIFICATE. 3 (5) A TAXPAYER MAY NOT APPLY FOR A CREDIT OR REFUND UNDER THIS SUBDI- 4 VISION MORE FREQUENTLY THAN ONCE A SALES TAX QUARTER, PURSUANT TO SUBDI- 5 VISION (B) OF SECTION ELEVEN HUNDRED THIRTY-SIX OF THE TAX LAW. 6 (6) ANY REFERENCE IN THIS CHAPTER TO SUBDIVISION (Z) OF SECTION ELEVEN 7 HUNDRED FIFTEEN OF THIS ARTICLE WILL BE DEEMED TO BE A REFERENCE TO THIS 8 SUBDIVISION. 9 S 34. Paragraph 2 of subdivision (a) of section 14 of the tax law, as 10 amended by section 1 of part AA of chapter 62 of the laws of 2006, is 11 amended to read as follows: 12 (2) for purposes of articles twenty-eight and twenty-nine of this 13 chapter, during the "sales and use tax benefit period." Such period 14 shall consist of one hundred twenty consecutive months beginning on the 15 later of (A) March first, two thousand one, or (B) WITH REGARD TO BUSI- 16 NESS ENTERPRISES CERTIFIED PURSUANT TO ARTICLE EIGHTEEN-B OF THE GENERAL 17 MUNICIPAL LAW PRIOR TO APRIL FIRST, TWO THOUSAND NINE, the first day of 18 the month next following the date of issuance of a qualified empire zone 19 enterprise certification by the commissioner under subdivision (h) of 20 this section, OR (C) WITH REGARD TO BUSINESS ENTERPRISES CERTIFIED 21 PURSUANT TO SUCH ARTICLE EIGHTEEN-B ON OR AFTER APRIL FIRST, TWO THOU- 22 SAND NINE, THE FIRST DAY OF THE MONTH NEXT FOLLOWING THE DATE OF CERTIF- 23 ICATION UNDER ARTICLE EIGHTEEN-B AS AN EMPIRE ZONE BUSINESS. Provided 24 however, such period shall not include any month falling within a taxa- 25 ble year immediately preceded by a taxable year with respect to which 26 the business enterprise did not meet the employment test. 27 S 35. Subdivision (h) of section 14 of the tax law is REPEALED. 28 S 36. Paragraph 1 of subdivision (a) of section 1210 of the tax law, 29 as amended by section 4 of part SS1 of chapter 57 of the laws of 2008, 30 is amended to read as follows: 31 (i) Either, all of the taxes described in article twenty-eight of this 32 chapter, at the same uniform rate, as to which taxes all provisions of 33 the local laws, ordinances or resolutions imposing such taxes shall be 34 identical, except as to rate and except as otherwise provided, with the 35 corresponding provisions in such article twenty-eight, including the 36 definition and exemption provisions of such article, so far as the 37 provisions of such article twenty-eight can be made applicable to the 38 taxes imposed by such city or county and with such limitations and 39 special provisions as are set forth in this article. The taxes author- 40 ized under this subdivision may not be imposed by a city or county 41 unless the local law, ordinance or resolution imposes such taxes so as 42 to include all portions and all types of receipts, charges or rents, 43 subject to state tax under sections eleven hundred five and eleven 44 hundred ten of this chapter, except as otherwise provided. (I) Any local 45 law, ordinance or resolution enacted by any city of less than one 46 million or by any county or school district, imposing the taxes author- 47 ized by this subdivision, shall, notwithstanding any provision of law to 48 the contrary, exclude from the operation of such local taxes all sales 49 of tangible personal property for use or consumption directly and 50 predominantly in the production of tangible personal property, gas, 51 electricity, refrigeration or steam, for sale, by manufacturing, proc- 52 essing, generating, assembly, refining, mining or extracting; and all 53 sales of tangible personal property for use or consumption predominantly 54 either in the production of tangible personal property, for sale, by 55 farming or in a commercial horse boarding operation, or in both; and, 56 unless such city, county or school district elects otherwise, shall omit S. 60--A 65 A. 160--A 1 the provision for credit or refund contained in clause six of subdivi- 2 sion (a) OR SUBDIVISION (D) of section eleven hundred nineteen of this 3 chapter. (II) Any local law, ordinance or resolution enacted by any 4 city, county or school district, imposing the taxes authorized by this 5 subdivision, shall omit the residential solar energy systems equipment 6 exemption provided for in subdivision (ee)[,] AND the clothing and foot- 7 wear exemption provided for in paragraph thirty of subdivision (a) [and 8 the qualified empire zone enterprise exemptions provided for in subdivi- 9 sion (z)] of section eleven hundred fifteen of this chapter, unless such 10 city, county or school district elects otherwise as to either such resi- 11 dential solar energy systems equipment exemption or such clothing and 12 footwear exemption [or such qualified empire zone enterprise exemptions; 13 provided that if such a city having a population of one million or more 14 in which the taxes imposed by section eleven hundred seven of this chap- 15 ter are in effect enacts the resolution described in subdivision (k) of 16 this section or repeals such resolution or enacts the resolution 17 described in subdivision (l) of this section or repeals such resolution 18 or enacts the resolution described in subdivision (n) of this section or 19 repeals such resolution, such resolution or repeal shall also be deemed 20 to amend any local law, ordinance or resolution enacted by such a city 21 imposing such taxes pursuant to the authority of this subdivision, 22 whether or not such taxes are suspended at the time such city enacts its 23 resolution pursuant to subdivision (k), (l) or (n) of this section or at 24 the time of any such repeal; provided, further, that any such local law, 25 ordinance or resolution and section eleven hundred seven of this chap- 26 ter, as deemed to be amended in the event a city of one million or more 27 enacts a resolution pursuant to the authority of subdivision (k), (l) or 28 (n) of this section, shall be further amended, as provided in section 29 twelve hundred eighteen of this subpart, so that the residential solar 30 energy systems equipment exemption or the clothing and footwear 31 exemption or the qualified empire zone enterprise exemptions in any such 32 local law, ordinance or resolution or in such section eleven hundred 33 seven are the same, as the case may be, as the residential solar energy 34 systems equipment exemption provided for in subdivision (ee), the cloth- 35 ing and footwear exemption in paragraph thirty of subdivision (a) or the 36 qualified empire zone enterprise exemptions in subdivision (z) of 37 section eleven hundred fifteen of this chapter]. 38 S 37. Paragraph 4 of subdivision (a) of section 1210 of the tax law, 39 as amended by section 5 of part SS1 of chapter 57 of the laws of 2008, 40 is amended to read as follows: 41 (4) Notwithstanding any other provision of law to the contrary, any 42 local law enacted by any city of one million or more that imposes the 43 taxes authorized by this subdivision (i) may omit the exception provided 44 in subparagraph (ii) of paragraph three of subdivision (c) of section 45 eleven hundred five of this chapter for receipts from laundering, dry- 46 cleaning, tailoring, weaving, pressing, shoe repairing and shoe shining; 47 (ii) may impose the tax described in paragraph six of subdivision (c) of 48 section eleven hundred five of this chapter at a rate in addition to the 49 rate prescribed by this section not to exceed two percent in multiples 50 of one-half of one percent; (iii) shall provide that the tax described 51 in paragraph six of subdivision (c) of section eleven hundred five of 52 this chapter does not apply to facilities owned and operated by the city 53 or an agency or instrumentality of the city or a public corporation the 54 majority of whose members are appointed by the chief executive officer 55 of the city or the legislative body of the city or both of them; (iv) 56 shall not include any tax on receipts from, or the use of, the services S. 60--A 66 A. 160--A 1 described in paragraph seven of subdivision (c) of section eleven 2 hundred five of this chapter; (v) shall provide that, for purposes of 3 the tax described in subdivision (e) of section eleven hundred five of 4 this chapter, "permanent resident" means any occupant of any room or 5 rooms in a hotel for at least one hundred eighty consecutive days with 6 regard to the period of such occupancy; (vi) may omit the exception 7 provided in paragraph one of subdivision (f) of section eleven hundred 8 five of this chapter for charges to a patron for admission to, or use 9 of, facilities for sporting activities in which the patron is to be a 10 participant, such as bowling alleys and swimming pools; (vii) shall not 11 provide the clothing and footwear exemption in paragraph thirty of 12 subdivision (a) of section eleven hundred fifteen of this chapter but 13 must exempt clothing and footwear and any item used or consumed to make 14 or repair exempt clothing and which becomes a physical component part of 15 that exempt clothing; (viii) shall omit the exemption provided in para- 16 graph forty-one of subdivision (a) of section eleven hundred fifteen of 17 this chapter; (ix) shall omit the exemption provided in subdivision (c) 18 of section eleven hundred fifteen of this chapter insofar as it applies 19 to fuel, gas, electricity, refrigeration and steam, and gas, electric, 20 refrigeration and steam service of whatever nature for use or consump- 21 tion directly and exclusively in the production of gas, electricity, 22 refrigeration or steam; and (x) shall omit, unless such city elects 23 otherwise, the provision for refund or credit contained in clause six of 24 subdivision (a) OR IN SUBDIVISION (D) of section eleven hundred nineteen 25 of this chapter. 26 S 38. Paragraph 1 of subdivision (b) of section 1210 of the tax law, 27 as separately amended by section 36 of part Y and section 11 of part GG 28 of chapter 63 of the laws of 2000, is amended to read as follows: 29 (1) Or, one or more of the taxes described in subdivisions (b), (d), 30 (e) and (f) of section eleven hundred five of this chapter, at the same 31 uniform rate, including the transitional provisions in section eleven 32 hundred six of this chapter covering such taxes, but not the taxes 33 described in subdivisions (a) and (c) of section eleven hundred five of 34 this chapter. Provided, further, that where the tax described in subdi- 35 vision (b) of section eleven hundred five of this chapter is imposed, 36 the compensating use taxes described in clauses (E), (G) and (H) of 37 subdivision (a) of section eleven hundred ten of this chapter shall also 38 be imposed. Provided, further, that where the taxes described in subdi- 39 vision (b) of section eleven hundred five are imposed, such taxes shall 40 omit the [exemptions provided for in subdivision (z) of section eleven 41 hundred fifteen] PROVISION FOR REFUND OR CREDIT CONTAINED IN SUBDIVISION 42 (D) OF SECTION ELEVEN HUNDRED NINETEEN OF THIS CHAPTER with respect to 43 such taxes described in such subdivision (b) of section eleven hundred 44 five unless such city or county elects to provide such [exemptions] 45 PROVISION or, if so elected, to repeal such [exemptions] PROVISION. 46 S 39. Subdivision (d) of section 1210 of the tax law, as amended by 47 section 12 of part GG of chapter 63 of the laws of 2000, is amended to 48 read as follows: 49 (d) A local law, ordinance or resolution imposing any tax pursuant to 50 this section, increasing or decreasing the rate of such tax, repealing 51 or suspending such tax, exempting from such tax the energy sources and 52 services described in paragraph three of subdivision (a) or of subdivi- 53 sion (b) of this section or changing the rate of tax imposed on such 54 energy sources and services or providing for the credit or refund 55 described in clause six of subdivision (a) of section eleven hundred 56 nineteen of this chapter must go into effect only on one of the follow- S. 60--A 67 A. 160--A 1 ing dates: March first, June first, September first or December first; 2 provided, that a local law, ordinance or resolution providing for the 3 exemption described in paragraph thirty of subdivision (a) [or providing 4 for the exemptions described in subdivision (z)] of section eleven 5 hundred fifteen of this chapter or repealing any such exemption [so 6 provided and a resolution enacted pursuant to the authority of subdivi- 7 sion (k) of this section providing such exemption or subdivision (l) of 8 this section providing such exemptions or repealing such exemption or 9 exemptions so provided] OR A LOCAL LAW, ORDINANCE OR RESOLUTION PROVID- 10 ING FOR A REFUND OR CREDIT DESCRIBED IN SUBDIVISION (D) OF SECTION ELEV- 11 EN HUNDRED NINETEEN OF THIS CHAPTER OR REPEALING SUCH PROVISION SO 12 PROVIDED must go into effect only on March first. No such local law, 13 ordinance or resolution shall be effective unless a certified copy of 14 such law, ordinance or resolution is mailed by registered or certified 15 mail to the commissioner at the commissioner's office in Albany at least 16 ninety days prior to the date it is to become effective. However, the 17 commissioner may waive and reduce such ninety-day minimum notice 18 requirement to a mailing of such certified copy by registered or certi- 19 fied mail within a period of not less than thirty days prior to such 20 effective date if the commissioner deems such action to be consistent 21 with the commissioner's duties under section twelve hundred fifty of 22 this article and the commissioner acts by resolution. Where the 23 restriction provided for in section twelve hundred twenty-three of this 24 article as to the effective date of a tax and the notice requirement 25 provided for therein are applicable and have not been waived, the 26 restriction and notice requirement in section twelve hundred twenty- 27 three of this article shall also apply. 28 S 40. Subdivision (1) of section 1210 of the tax law is REPEALED. 29 S 41. Subdivision (d) of section 1211 of the tax law, as amended by 30 chapter 577 of the laws of 1997, is amended to read as follows: 31 (d) A local law or resolution imposing any tax pursuant to this 32 section, increasing or decreasing the rate of such tax, repealing or 33 suspending such tax or providing for the credit or refund described in 34 clause six of subdivision (a) of section eleven hundred nineteen of this 35 chapter must go into effect only on one of the following dates: March 36 first, June first, September first or December first, subject to further 37 requirement as to effective date provided for in subdivision (b) of this 38 section; PROVIDED, THAT A LOCAL LAW OR RESOLUTION PROVIDING FOR A REFUND 39 OR CREDIT DESCRIBED IN SUBDIVISION (D) OF SECTION ELEVEN HUNDRED NINE- 40 TEEN OF THIS CHAPTER OR REPEALING SUCH PROVISION SO PROVIDED MUST GO 41 INTO EFFECT ONLY ON MARCH FIRST, SUBJECT TO FURTHER REQUIREMENT AS TO 42 EFFECTIVE DATE PROVIDED FOR IN SUBDIVISION (B) OF THIS SECTION. No such 43 local law or resolution shall be effective unless a certified copy of 44 such local law or resolution is mailed by registered or certified mail 45 to the commissioner at the commissioner's office in Albany at least 46 ninety days prior to the date it is to become effective. However, the 47 commissioner may waive and reduce such ninety-day minimum notice 48 requirement to a mailing of such certified copy by registered or certi- 49 fied mail within a period of not less than thirty days prior to such 50 effective date if the commissioner deems such action to be consistent 51 with the commissioner's duties under section twelve hundred fifty of 52 this article and the commissioner acts by resolution. Where the 53 restriction provided for in section twelve hundred twenty-three of this 54 article as to the effective date of a tax and the notice requirement 55 provided for therein are applicable and have not been waived, the S. 60--A 68 A. 160--A 1 restriction and notice requirement in section twelve hundred twenty- 2 three of this article shall also apply. 3 S 42. Subdivisions (a) and (e) of section 1212 of the tax law, as 4 amended by section 14 of part GG and subdivision (a) as separately 5 amended by section 37 of part Y of chapter 63 of the laws of 2000, are 6 amended to read as follows: 7 (a) Any school district which is coterminous with, partly within or 8 wholly within a city having a population of less than one hundred twen- 9 ty-five thousand, is hereby authorized and empowered, by majority vote 10 of the whole number of its school authorities, to impose for school 11 district purposes, within the territorial limits of such school district 12 and without discrimination between residents and nonresidents thereof, 13 the taxes described in subdivision (b) of section eleven hundred five 14 (but excluding the tax on prepaid telephone calling services) and the 15 taxes described in clauses (E) and (H) of subdivision (a) of section 16 eleven hundred ten, including the transitional provisions in subdivision 17 (b) of section eleven hundred six of this chapter, so far as such 18 provisions can be made applicable to the taxes imposed by such school 19 district and with such limitations and special provisions as are set 20 forth in this article, such taxes to be imposed at the rate of one-half, 21 one, one and one-half, two, two and one-half or three percent which rate 22 shall be uniform for all portions and all types of receipts and uses 23 subject to such taxes. In respect to such taxes, all provisions of the 24 resolution imposing them, except as to rate and except as otherwise 25 provided herein, shall be identical with the corresponding provisions in 26 such article twenty-eight of this chapter, including the applicable 27 definition and exemption provisions of such article, so far as the 28 provisions of such article twenty-eight of this chapter can be made 29 applicable to the taxes imposed by such school district and with such 30 limitations and special provisions as are set forth in this article. The 31 taxes described in subdivision (b) of section eleven hundred five (but 32 excluding the tax on prepaid telephone calling service) and clauses (E) 33 and (H) of subdivision (a) of section eleven hundred ten, including the 34 transitional provision in subdivision (b) of such section eleven hundred 35 six of this chapter, may not be imposed by such school district unless 36 the resolution imposes such taxes so as to include all portions and all 37 types of receipts and uses subject to tax under such subdivision (but 38 excluding the tax on prepaid telephone calling service) and clauses. 39 Provided, however, that, where a school district imposes such taxes, 40 such taxes shall omit the [exemptions provided for in subdivision (z) of 41 section eleven hundred fifteen] PROVISION FOR REFUND OR CREDIT CONTAINED 42 IN SUBDIVISION (D) OF SECTION ELEVEN HUNDRED NINETEEN OF THIS CHAPTER 43 with respect to such taxes described in such subdivision (b) of section 44 eleven hundred five unless such school district elects to provide such 45 [exemptions] PROVISION or, if so elected, to repeal such [exemptions] 46 PROVISION. 47 (e) A resolution imposing a tax pursuant to this section, increasing 48 or decreasing the rate of such tax, or repealing or suspending such tax 49 must go into effect only on one of the following dates: March first, 50 June first, September first or December first; provided, that a resol- 51 ution providing for the [exemptions described in subdivision (z) of 52 section eleven hundred fifteen] REFUND OR CREDIT DESCRIBED IN SUBDIVI- 53 SION (D) OF SECTION ELEVEN HUNDRED NINETEEN of this chapter or repealing 54 such [exemptions so provided] PROVISION must go into effect only on 55 March first. No such resolution shall be effective unless a certified 56 copy of such resolution is mailed by registered or certified mail to the S. 60--A 69 A. 160--A 1 commissioner at the commissioner's office in Albany at least ninety days 2 prior to the date it is to become effective. However, the commissioner 3 may waive and reduce such ninety-day minimum notice requirement to a 4 mailing of such certified copy by registered or certified mail within a 5 period of not less than thirty days prior to such effective date if the 6 commissioner deems such action to be consistent with the commissioner's 7 duties under section twelve hundred fifty of this article and the 8 commissioner acts by resolution. 9 S 43. Notwithstanding any provision of state or local law, ordinance 10 or resolution to the contrary: 11 (a) Every local enactment that elected the qualified empire zone 12 enterprise exemptions described in subdivision (z) of section 1115 of 13 the tax law elected by a county or city pursuant to the authority of 14 article 29 of the tax law that is in effect on the day before this act 15 becomes a law or was elected prior to such date to take effect at a 16 later date is hereby amended to elect the refund or credit described in 17 subdivision (d) of section 1119 of the tax law. 18 (b) A county or city that elected the qualified empire zone enterprise 19 exemptions described in subdivision (z) of section 1115 of the tax law 20 pursuant to the authority of article 29 of the tax law may repeal such 21 exemptions in accord with the provisions of subdivisions (d) and (e) of 22 section 1210 of the tax law. 23 S 44. Subdivision (m) of section 14 of the tax law is REPEALED. 24 S 45. The tax law is amended by adding a new section 17 to read as 25 follows: 26 S 17. EMPIRE ZONES TAX BENEFITS REPORT. (A) THE DEPARTMENT OF TAXATION 27 AND FINANCE MUST PUBLISH AN EMPIRE ZONES TAX BENEFITS REPORT ANNUALLY BY 28 JANUARY THIRTY-FIRST. THE FIRST REPORT MUST BE PUBLISHED BY JANUARY 29 THIRTY-FIRST, TWO THOUSAND THIRTEEN. 30 (B) (1) THE EMPIRE ZONES TAX BENEFITS REPORT MUST CONTAIN THE FOLLOW- 31 ING INFORMATION ABOUT THE EMPIRE ZONE TAX CREDITS CLAIMED UNDER ARTICLES 32 NINE, NINE-A, TWENTY-TWO, THIRTY-TWO AND THIRTY-THREE OF THIS CHAPTER 33 DURING THE PREVIOUS CALENDAR YEAR: 34 (A) THE NAME OF EACH TAXPAYER CLAIMING A CREDIT; AND 35 (B) THE AMOUNT OF EACH CREDIT EARNED BY EACH TAXPAYER. 36 (2) IF THE TAXPAYER CLAIMS A EMPIRE ZONE TAX CREDIT BECAUSE THE 37 TAXPAYER IS A MEMBER OF A LIMITED LIABILITY COMPANY, A PARTNER IN A 38 PARTNERSHIP OR A SHAREHOLDER IN A SUBCHAPTER S CORPORATION, THE NAME OF 39 EACH LIMITED LIABILITY COMPANY, PARTNERSHIP OR SUBCHAPTER S CORPORATION 40 EARNING ANY OF THOSE CREDITS AND THE AMOUNT OF CREDIT EARNED BY EACH 41 ENTITY MUST BE INCLUDED IN THE REPORT INSTEAD OF INFORMATION ABOUT THE 42 TAXPAYER CLAIMING THE CREDIT. 43 (C) THE EMPIRE ZONES TAX BENEFITS REPORT MUST ALSO CONTAIN THE FOLLOW- 44 ING INFORMATION ABOUT THE SALES AND USE TAX REFUNDS AND CREDITS CLAIMED 45 UNDER SUBDIVISION (D) OF SECTION ELEVEN HUNDRED NINETEEN OF THIS CHAPTER 46 DURING THE PREVIOUS CALENDAR YEAR: 47 (A) THE NAME OF EACH TAXPAYER CLAIMING A CREDIT OR REFUND; AND 48 (B) THE TOTAL AMOUNT OF CREDITS OR REFUNDS ALLOWED TO EACH TAXPAYER. 49 (D) THE INFORMATION INCLUDED IN THE EMPIRE ZONES TAX BENEFITS REPORT 50 WILL BE BASED ON THE INFORMATION FILED WITH THE DEPARTMENT DURING THE 51 PREVIOUS CALENDAR YEAR, TO THE EXTENT THAT IT IS PRACTICABLE TO USE THAT 52 INFORMATION. 53 S 46. This act shall take effect immediately, provided, however, that: 54 (a) sections fourteen through twenty-five of this act shall apply to 55 taxable years beginning on and after April 1, 2009; S. 60--A 70 A. 160--A 1 (b) sections thirty-two and thirty-three and sections thirty-six 2 through forty-three of this act shall take effect on the first day of 3 the sales tax quarter next commencing at least 60 days after this act 4 becomes a law; and provided further that any refund or credit allowed 5 pursuant to the amendments made by section thirty-three of this act may 6 not be paid for that quarter for at least two hundred seventy days after 7 this act becomes a law; 8 (c) section thirty-five of this act shall take effect April 1, 2009; 9 and 10 (d) the amendments to subdivision (u) of section 957 of the general 11 municipal law made by section one of this act shall not affect the 12 repeal of such subdivision and shall be deemed repealed therewith. 13 PART L 14 Section 1. Subdivision 4 of section 22 of the public housing law, as 15 amended by section 1 of part XX-1 of chapter 57 of the laws of 2008, is 16 amended to read as follows: 17 4. Statewide limitation. The aggregate dollar amount of credit which 18 the commissioner may allocate to eligible low-income buildings under 19 this article shall be [twenty] TWENTY-FOUR million dollars. The limita- 20 tion provided by this subdivision applies only to allocation of the 21 aggregate dollar amount of credit by the commissioner, and does not 22 apply to allowance to a taxpayer of the credit with respect to an eligi- 23 ble low-income building for each year of the credit period. 24 S 2. Paragraph (7) of subdivision (b) of section 18 of the tax law, as 25 added by chapter 63 of the laws of 2000, is amended to read as follows: 26 (7) [Bond in lieu of recapture. In the case of a disposition of a 27 building or an interest therein, the taxpayer shall be discharged from 28 liability for any recapture under this subdivision by reason of such 29 disposition if the taxpayer furnishes to the commissioner a bond or 30 other security acceptable to the commissioner in an amount satisfactory 31 to the commissioner and for the period required by the commissioner, 32 and] (A) THE CREDIT RECAPTURE REQUIRED UNDER THIS SUBDIVISION WILL NOT 33 APPLY SOLELY BY REASON OF THE DISPOSITION OF A BUILDING OR AN INTEREST 34 THEREIN IF it is reasonably expected that such building will continue to 35 be operated as an eligible low-income building for the remaining compli- 36 ance period with respect to such building. 37 (B) STATUTE OF LIMITATIONS. IF A BUILDING (OR AN INTEREST THEREIN) IS 38 DISPOSED OF DURING ANY TAXABLE YEAR AND THERE IS ANY REDUCTION IN THE 39 QUALIFIED BASIS OF SUCH BUILDING WHICH RESULTS IN AN INCREASE IN TAX 40 UNDER THIS SECTION FOR SUCH TAXABLE OR ANY SUBSEQUENT TAXABLE YEAR, THEN 41 (I) THE STATUTORY PERIOD FOR THE ASSESSMENT OF ANY DEFICIENCY WITH 42 RESPECT TO SUCH INCREASE IN TAX WILL NOT EXPIRE BEFORE THE EXPIRATION OF 43 THREE YEARS FROM THE DATE THE COMMISSIONER OF HOUSING AND COMMUNITY 44 RENEWAL IS NOTIFIED BY THE TAXPAYER (IN SUCH MANNER AS THE COMMISSIONER 45 OF HOUSING AND COMMUNITY RENEWAL MAY PRESCRIBE) OF SUCH REDUCTION IN 46 QUALIFIED BASIS, AND 47 (II) SUCH DEFICIENCY MAY BE ASSESSED BEFORE THE EXPIRATION OF SUCH 48 3-YEAR PERIOD NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW OR RULE OF 49 LAW WHICH WOULD OTHERWISE PREVENT SUCH ASSESSMENT. 50 S 3. This act shall take effect immediately. 51 PART M S. 60--A 71 A. 160--A 1 Section 1. Subsection (f) of section 615 of the tax law, as added by 2 chapter 28 of the laws of 1987, is amended to read as follows: 3 (f) The New York itemized deduction otherwise allowable under this 4 section shall be reduced by the sum of the amounts determined under 5 paragraphs one [and], two AND THREE of this subsection. 6 (1) An amount equal to the New York itemized deduction otherwise 7 allowable under subsection (a) of this section, multiplied by a percent- 8 age, such percentage to be determined by multiplying, for taxable years 9 beginning in nineteen hundred eighty-eight, ten percent, and for taxable 10 years beginning after nineteen hundred eighty-eight, twenty-five 11 percent, by a fraction, 12 (A) in the case of an unmarried individual or married individual 13 filing a separate return, the numerator of which is the lesser of fifty 14 thousand dollars or the excess of such individual's New York adjusted 15 gross income over one hundred thousand dollars and the denominator of 16 which is fifty thousand dollars; 17 (B) in the case of a married individual filing a joint return or a 18 surviving spouse, the numerator of which is the lesser of fifty thousand 19 dollars or the excess of such individual's New York adjusted gross 20 income over two hundred thousand dollars and the denominator of which is 21 fifty thousand dollars; 22 (C) in the case of a head of household, the numerator of which is the 23 lesser of fifty thousand dollars or the excess of such individual's New 24 York adjusted gross income over one hundred fifty thousand dollars and 25 the denominator of which is fifty thousand dollars. 26 (2) An amount equal to the New York itemized deduction of an individ- 27 ual otherwise allowable under subsection (a) of this section, multiplied 28 by a percentage, such percentage to be determined by multiplying, for 29 taxable years beginning in nineteen hundred eighty-eight, ten percent, 30 and for taxable years beginning after nineteen hundred eighty-eight, 31 twenty-five percent, by a fraction, the numerator of which is the lesser 32 of fifty thousand dollars or the excess of such individual's New York 33 adjusted gross income over four hundred seventy-five thousand dollars 34 and the denominator of which is fifty thousand dollars. 35 (3) WITH RESPECT TO AN INDIVIDUAL WHOSE NEW YORK ADJUSTED GROSS INCOME 36 IS OVER ONE MILLION DOLLARS, AN AMOUNT EQUAL TO THE NEW YORK ITEMIZED 37 DEDUCTION OF AN INDIVIDUAL OTHERWISE ALLOWABLE UNDER SUBSECTION (A) OF 38 THIS SECTION, EXCEPT THE PORTION OF THE DEDUCTION ATTRIBUTABLE TO ANY 39 CHARITABLE CONTRIBUTION ALLOWED UNDER SECTION ONE HUNDRED SEVENTY OF THE 40 INTERNAL REVENUE CODE, MULTIPLIED BY FIFTY PERCENT, FOR TAXABLE YEARS 41 BEGINNING AFTER TWO THOUSAND EIGHT. 42 S 2. Clause (ii) of subparagraph (B) of paragraph 3 of subsection (c) 43 of section 685 of the tax law, as amended by section 2 of part Y3 of 44 chapter 62 of the laws of 2003, is amended to read as follows: 45 (ii) one hundred percent of the tax shown on the return of the indi- 46 vidual for the preceding taxable year. Provided, however, the tax shown 47 on such return for taxable years beginning in two thousand two shall be 48 the tax calculated as if such years began in two thousand three. 49 PROVIDED FURTHER, HOWEVER, THAT THE TAX SHOWN ON SUCH RETURN FOR TAXABLE 50 YEARS BEGINNING IN TWO THOUSAND EIGHT SHALL BE CALCULATED AS IF PARA- 51 GRAPH THREE OF SUBSECTION (F) OF SECTION SIX HUNDRED FIFTEEN OF THIS 52 ARTICLE HAS BEEN IN EFFECT FOR TAXABLE YEARS BEGINNING IN TWO THOUSAND 53 EIGHT. 54 S 3. Subdivision (f) of section 11-1715 of the administrative code of 55 the city of New York, as added by chapter 333 of the laws of 1987, is 56 amended to read as follows: S. 60--A 72 A. 160--A 1 (f) The city itemized deduction otherwise allowable under this section 2 shall be reduced by the sum of the amounts determined under paragraphs 3 one [and], two AND THREE of this subdivision. 4 (1) An amount equal to the city itemized deduction otherwise allowable 5 under subdivision (a) of this section, multiplied by a percentage, such 6 percentage to be determined by multiplying, for taxable years beginning 7 in nineteen hundred eighty-eight, ten percent, and for taxable years 8 beginning after nineteen hundred eighty-eight, twenty-five percent, by a 9 fraction, 10 (A) in the case of an unmarried individual or married individual 11 filing a separate return, the numerator of which is the lesser of fifty 12 thousand dollars or the excess of such individual's city adjusted gross 13 income over one hundred thousand dollars and the denominator of which is 14 fifty thousand dollars; 15 (B) in the case of a married individual filing a joint return or a 16 surviving spouse, the numerator of which is the lesser of fifty thousand 17 dollars or the excess of such individual's city adjusted gross income 18 over two hundred thousand dollars and the denominator of which is fifty 19 thousand dollars; 20 (C) in the case of a head of household, the numerator of which is the 21 lesser of fifty thousand dollars or the excess of such individual's city 22 adjusted gross income over one hundred fifty thousand dollars and the 23 denominator of which is fifty thousand dollars. 24 (2) An amount equal to the city itemized deduction of an individual 25 otherwise allowable under subdivision (a) of this section, multiplied by 26 a percentage, such percentage to be determined by multiplying, for taxa- 27 ble years beginning in nineteen hundred eighty-eight, ten percent, and 28 for taxable years beginning after nineteen hundred eighty-eight, twen- 29 ty-five percent, by a fraction, the numerator of which is the lesser of 30 fifty thousand dollars or the excess of such individual's city adjusted 31 gross income over four hundred seventy-five thousand dollars and the 32 denominator of which is fifty thousand dollars. 33 (3) WITH RESPECT TO AN INDIVIDUAL WHOSE CITY ADJUSTED GROSS INCOME IS 34 OVER ONE MILLION DOLLARS, AN AMOUNT EQUAL TO THE CITY ITEMIZED DEDUCTION 35 OF AN INDIVIDUAL OTHERWISE ALLOWABLE UNDER SUBDIVISION (A) OF THIS 36 SECTION, EXCEPT THE PORTION OF THE DEDUCTION ATTRIBUTABLE TO ANY CHARI- 37 TABLE CONTRIBUTION ALLOWED UNDER SECTION ONE HUNDRED SEVENTY OF THE 38 INTERNAL REVENUE CODE, MULTIPLIED BY FIFTY PERCENT, FOR TAXABLE YEARS 39 BEGINNING AFTER TWO THOUSAND EIGHT. 40 S 4. Clause (ii) of subparagraph (B) of paragraph 3 of subdivision (c) 41 of section 11-1785 of the administrative code of the city of New York, 42 as amended by chapter 55 of the laws of 1992, is amended to read as 43 follows: 44 (ii) one hundred percent of the tax shown on the return of the indi- 45 vidual for the preceding taxable year. PROVIDED, HOWEVER, THAT THE TAX 46 SHOWN ON SUCH RETURN FOR TAXABLE YEARS BEGINNING IN TWO THOUSAND EIGHT 47 SHALL BE CALCULATED AS IF PARAGRAPH THREE OF SUBDIVISION (F) OF SECTION 48 11-1715 OF THIS CHAPTER WAS IN EFFECT FOR TAXABLE YEARS BEGINNING IN TWO 49 THOUSAND EIGHT. 50 S 5. Notwithstanding the provisions of subsection (c) of section 685 51 of the tax law or subdivision (c) of section 11-1785 of the administra- 52 tive code of the city of New York, no addition to tax as a result of an 53 underpayment of estimated tax that is attributable to the amendments 54 made by sections one, two and three of this act shall be imposed with 55 respect to any installment the due date for the payment of which is 56 prior to 45 days after the date this act shall have become a law. S. 60--A 73 A. 160--A 1 S 6. Notwithstanding any provision of law to the contrary, the commis- 2 sioner of taxation and finance is authorized to prescribe by regulations 3 the method of determining the amount to be deducted and withheld from 4 wages on account of taxes imposed by or pursuant to the authority of 5 article 22 of the tax law in taxable years beginning in 2009 in 6 connection with the implementation of section one of this act. The 7 commissioner of taxation and finance may adjust the withholding tables 8 in regard to taxable years beginning in 2009 to account for the 9 provisions of this act. In prescribing any such regulations, the commis- 10 sioner of taxation and finance may adopt rules on an emergency basis 11 notwithstanding anything to the contrary in section 202 of the state 12 administrative procedure act. In carrying out his duties and responsi- 13 bilities under this section, the commissioner of taxation and finance 14 may accompany any such rule making procedure with a similar procedure 15 with respect to the taxes required to be deducted and withheld by local 16 laws imposing taxes pursuant to the authority of articles 30, 30-A and 17 30-B of the tax law that take effect and become applicable in taxable 18 years beginning in 2009, the provisions of any other law in relation to 19 such a procedure to the contrary notwithstanding. 20 S 7. This act shall take effect immediately. 21 PART N 22 Section 1. Subparagraph (B) of paragraph 1 of subsection (b) of 23 section 631 of the tax law, as amended by chapter 28 of the laws of 24 1987, is amended to read as follows: 25 (B) a business, trade, profession or occupation carried on in this 26 state, INCLUDING INVESTMENT MANAGEMENT SERVICES PERFORMED IN EXCHANGE 27 FOR CONSIDERATION TO A PARTNERSHIP OR OTHER ENTITY AS DEFINED IN 28 SUBSECTION (H) OF THIS SECTION; or 29 S 2. Section 631 of the tax law is amended by adding a new subsection 30 (h) to read as follows: 31 (H) SPECIAL RULES FOR PARTNERS PROVIDING INVESTMENT MANAGEMENT 32 SERVICES. (1) FOR PURPOSES OF THIS SECTION, THE TERM "INVESTMENT MANAGE- 33 MENT SERVICES TO A PARTNERSHIP OR OTHER ENTITY" MEANS PROVIDING A 34 SUBSTANTIAL QUANTITY OF ANY OF THE FOLLOWING SERVICES TO THE PARTNERSHIP 35 OR OTHER ENTITY: 36 (I) ADVISING THE PARTNERSHIP AS TO THE VALUE OF ANY SPECIFIED ASSET, 37 OR 38 (II) ADVISING THE PARTNERSHIP AS TO THE ADVISABILITY OF INVESTING IN, 39 PURCHASING, OR SELLING ANY SPECIFIED ASSET, OR 40 (III) MANAGING, ACQUIRING, OR DISPOSING OF ANY SPECIFIED ASSET, OR 41 (IV) ARRANGING FINANCING WITH RESPECT TO ACQUIRING SPECIFIED ASSETS, 42 OR 43 (V) ANY ACTIVITY IN SUPPORT OF ANY SERVICE DESCRIBED IN SUBPARAGRAPHS 44 (I) THROUGH (IV) OF THIS PARAGRAPH. 45 (2) FOR PURPOSES OF THIS SUBSECTION, THE TERM "SPECIFIED ASSET" MEANS 46 SECURITIES (AS DEFINED IN SECTION FOUR HUNDRED SEVENTY-FIVE (C)(2) OF 47 THE INTERNAL REVENUE CODE WITHOUT REGARD TO THE LAST SENTENCE THEREOF), 48 REAL ESTATE, COMMODITIES (AS DEFINED IN SECTION FOUR HUNDRED 49 SEVENTY-FIVE (E)(2) OF THE INTERNAL REVENUE CODE), OR OPTIONS OR DERIVA- 50 TIVE CONTRACTS WITH RESPECT TO SECURITIES (AS SO DEFINED), REAL ESTATE, 51 OR COMMODITIES (AS SO DEFINED). 52 (3) FOR PURPOSES OF THIS SUBSECTION, SUBSECTION (D) OF THIS SECTION 53 SHALL NOT APPLY. S. 60--A 74 A. 160--A 1 S 3. Subsection (d) of section 631 of the tax law is amended to read 2 as follows: 3 (d) Purchase and sale for own account.-- A nonresident, other than a 4 dealer holding property primarily for sale to customers in the ordinary 5 course of his trade or business, shall not be deemed to carry on a busi- 6 ness, trade, profession or occupation in this state solely by reason of 7 the purchase and sale of property or the purchase, sale or writing of 8 stock option contracts, or both, for his own account EXCEPT WHEN 9 SUBSECTION (H) OF THIS SECTION APPLIES. 10 S 4. Subdivision (a) of section 632 of the tax law is amended by 11 adding new paragraph (3) to read as follows: 12 (3) IN DETERMINING THE NEW YORK SOURCE INCOME OF A NONRESIDENT SHARE- 13 HOLDER OF AN S CORPORATION WHERE THE ELECTION PROVIDED FOR IN SUBSECTION 14 (A) OF SECTION SIX HUNDRED SIXTY IS IN EFFECT AND THE S CORPORATION IS A 15 PARTNER OF A PARTNERSHIP TO WHICH SECTION 631(H) APPLIES, THERE SHALL BE 16 INCLUDED THE INCOME AND LOSSES FROM INTANGIBLE PERSONAL PROPERTY, 17 INCLUDING ANNUITIES, DIVIDENDS, INTEREST AND GAINS FROM THE DISPOSITION 18 OF INTANGIBLE PERSONAL PROPERTY ATTRIBUTABLE TO THE PARTNERSHIP OF WHICH 19 SECTION 631(H) APPLIES. THOSE ITEMS OF INCOME AND LOSS AND DEDUCTION 20 SHALL BE ALLOCABLE BY THE NONRESIDENT SHAREHOLDERS BY THE S CORPO- 21 RATION'S BUSINESS ALLOCATION PERCENTAGE, DETERMINED UNDER THE REGU- 22 LATIONS OF THE COMMISSIONER CONSISTENT WITH THE APPLICABLE METHODS AND 23 RULES FOR ALLOCATION UNDER ARTICLE 9-A. 24 S 5. This act shall take effect immediately and apply to taxable years 25 beginning on or after January 1, 2009. 26 PART O 27 Section 1. The tax law is amended by adding a new section 30 to read 28 as follows: 29 S 30. RESEARCH EXPENDITURES CREDIT. (A) GENERAL. (1) A TAXPAYER 30 SUBJECT TO TAX UNDER ARTICLE NINE-A, TWENTY-TWO, THIRTY-TWO OR 31 THIRTY-THREE OF THIS CHAPTER SHALL BE ALLOWED A CREDIT AGAINST SUCH TAX, 32 PURSUANT TO THE PROVISIONS REFERENCED IN SUBDIVISION (E) OF THIS 33 SECTION. THE CREDIT IS EQUAL TO TEN PERCENT OF THE EXCESS OF THE TAXPAY- 34 ER'S NEW YORK RESEARCH EXPENDITURES INCURRED DURING THE TAXABLE YEAR 35 OVER THE AVERAGE AMOUNT OF THE TAXPAYER'S NEW YORK RESEARCH EXPENDITURES 36 INCURRED DURING THE TWO IMMEDIATELY PRECEDING TAXABLE YEARS. IF THE 37 TAXPAYER DOES NOT HAVE TWO IMMEDIATELY PRECEDING TAXABLE YEARS, THEN THE 38 CREDIT IS EQUAL TO TEN PERCENT OF THE EXCESS OF THE TAXPAYER'S NEW YORK 39 RESEARCH EXPENDITURES INCURRED DURING THE TAXABLE YEAR OVER THE TAXPAY- 40 ER'S NEW YORK RESEARCH EXPENDITURES INCURRED DURING THE IMMEDIATELY 41 PRECEDING TAXABLE YEAR. THE TAXPAYER IS NOT ALLOWED TO CLAIM THIS CREDIT 42 DURING ITS FIRST TAXABLE YEAR IN NEW YORK. IF THE TAXPAYER IS A PARTNER 43 IN A PARTNERSHIP THAT IS INCURRING RESEARCH EXPENDITURES, THE AMOUNT OF 44 CREDIT THE TAXPAYER WILL BE ALLOWED TO CLAIM IS EQUAL TO THE TAXPAYER'S 45 PRO RATA SHARE OF THE CREDIT THAT THE PARTNERSHIP WOULD HAVE BEEN 46 ALLOWED TO CLAIM IF IT WERE A TAXPAYER. ANY TAXPAYER THAT HAS RESEARCH 47 EXPENDITURES THAT MAY BE USED IN CALCULATING BOTH THE CREDIT DESCRIBED 48 IN THIS SECTION AND THE CREDIT FOR "QUALIFIED EMERGING TECHNOLOGY COMPA- 49 NY FACILITIES, OPERATIONS AND TRAINING" ALLOWED UNDER EITHER SUBSECTION 50 (NN) OF SECTION SIX HUNDRED SIX OF THIS CHAPTER OR SUBDIVISION 12-G OF 51 SECTION TWO HUNDRED TEN OF THIS CHAPTER, MAY USE THOSE EXPENDITURES TO 52 CALCULATE EITHER THE CREDIT DESCRIBED IN THIS SECTION OR THE CREDIT 53 ALLOWED UNDER SUCH SUBSECTION (NN) OR SUCH SUBDIVISION (12-G), BUT NOT 54 BOTH. S. 60--A 75 A. 160--A 1 (2) NEW YORK RESEARCH EXPENDITURES EQUAL THE SUM OF: 2 (A) THE QUALIFIED RESEARCH EXPENSES THAT WOULD QUALIFY FOR THE CREDIT 3 ALLOWED UNDER SECTION 41 OF THE INTERNAL REVENUE CODE FOR RESEARCH 4 ACTIVITIES CONDUCTED IN THIS STATE, AND 5 (B) THE GRANTS MADE FOR QUALIFIED RESEARCH BY THE TAXPAYER TO A QUALI- 6 FIED RESEARCH CONSORTIUM, AN EDUCATIONAL INSTITUTION, AND AN ORGANIZA- 7 TION WHICH IS A STATE OR FEDERAL LABORATORY FOR RESEARCH ACTIVITIES TO 8 BE CONDUCTED BY THAT ORGANIZATION IN THIS STATE. 9 (B) MEANING OF TERMS. THE TERMS "QUALIFIED RESEARCH EXPENSES", "QUALI- 10 FIED RESEARCH", "QUALIFIED RESEARCH CONSORTIUM", AND "EDUCATIONAL INSTI- 11 TUTION" SHALL HAVE THE SAME MEANINGS AS WHEN USED IN SECTION 41 OF THE 12 INTERNAL REVENUE CODE, AS SUCH SECTION OF SUCH CODE APPLIED ON DECEMBER 13 THIRTY-FIRST, TWO THOUSAND EIGHT. 14 (C) RESEARCH EXPENDITURES CREDIT CERTIFICATES. TO BE ELIGIBLE FOR THE 15 CREDIT ALLOWED BY THIS SECTION, A TAXPAYER SHALL OBTAIN A RESEARCH 16 EXPENDITURES CREDIT CERTIFICATE FROM THE URBAN DEVELOPMENT CORPORATION. 17 A TAXPAYER SHALL APPLY TO THE URBAN DEVELOPMENT CORPORATION BY JANUARY 18 THIRTY-FIRST OF EACH YEAR WITH RESPECT TO NEW YORK RESEARCH EXPENDITURES 19 INCURRED DURING THE IMMEDIATELY PRECEDING TAXABLE YEAR THAT ENDED ON OR 20 BEFORE DECEMBER THIRTY-FIRST OF THE PRECEDING YEAR. THE URBAN DEVELOP- 21 MENT CORPORATION SHALL ISSUE RESEARCH EXPENDITURES CREDIT CERTIFICATES 22 BY MARCH THIRTY-FIRST OF EACH YEAR, PURSUANT TO PROCEDURES SPECIFIED IN 23 RULES AND REGULATIONS PROMULGATED BY SUCH CORPORATION. EACH RESEARCH 24 EXPENDITURES CREDIT CERTIFICATE SHALL SPECIFY THE MAXIMUM AMOUNT OF 25 CREDIT THAT THE TAXPAYER IS ALLOWED TO CLAIM FOR THE TAXABLE YEAR TO 26 WHICH THE CREDIT CERTIFICATE RELATES. FOR THE STATE FISCAL YEAR COMMENC- 27 ING APRIL FIRST, TWO THOUSAND NINE, THE URBAN DEVELOPMENT CORPORATION 28 SHALL NOT ISSUE, IN THE AGGREGATE, MORE THAN TWENTY MILLION DOLLARS OF 29 RESEARCH EXPENDITURES CREDIT CERTIFICATES. FOR THE STATE FISCAL YEAR 30 COMMENCING APRIL FIRST, TWO THOUSAND TEN, THE AGGREGATE AMOUNT OF SUCH 31 CERTIFICATES SHALL NOT BE MORE THAN THIRTY-THREE MILLION DOLLARS. FOR 32 THE STATE FISCAL YEAR COMMENCING APRIL FIRST, TWO THOUSAND ELEVEN AND 33 FOR EACH FISCAL YEAR THEREAFTER, THE AGGREGATE OF SUCH CERTIFICATES 34 SHALL NOT BE MORE THAN FORTY-FIVE MILLION DOLLARS. 35 (D) RESEARCH EXPENDITURES CREDIT REPORT. (1) THE DEPARTMENT SHALL 36 PUBLISH A RESEARCH EXPENDITURES CREDIT REPORT ANNUALLY BY JANUARY THIR- 37 TY-FIRST. THE FIRST REPORT SHALL BE PUBLISHED BY JANUARY THIRTY-FIRST, 38 TWO THOUSAND THIRTEEN. 39 (2)(A) THE RESEARCH EXPENDITURES CREDIT REPORT SHALL CONTAIN THE 40 FOLLOWING INFORMATION ABOUT THE CREDITS CLAIMED UNDER THIS SECTION 41 DURING THE PREVIOUS CALENDAR YEAR: 42 (I) THE NAME OF EACH TAXPAYER CLAIMING A RESEARCH CREDIT; AND 43 (II) THE AMOUNT OF RESEARCH CREDIT EARNED BY EACH TAXPAYER; 44 (B) IF THE TAXPAYER CLAIMS A CREDIT PURSUANT TO THIS SECTION BECAUSE 45 THE TAXPAYER IS A MEMBER OF A LIMITED LIABILITY COMPANY TREATED AS A 46 PARTNERSHIP FOR FEDERAL TAX PURPOSES, A PARTNER IN A PARTNERSHIP OR A 47 SHAREHOLDER IN A SUBCHAPTER S CORPORATION, THE NAME OF EACH LIMITED 48 LIABILITY COMPANY, PARTNERSHIP OR SUBCHAPTER S CORPORATION ASSOCIATED 49 WITH ANY OF THOSE CREDITS AND THE AMOUNT OF CREDIT ASSOCIATED WITH EACH 50 ENTITY SHALL BE INCLUDED IN THE REPORT INSTEAD OF INFORMATION ABOUT THE 51 TAXPAYER CLAIMING THE CREDIT. 52 (3) THE INFORMATION INCLUDED IN THE RESEARCH EXPENDITURES CREDIT 53 REPORT SHALL BE BASED ON THE INFORMATION FILED WITH THE DEPARTMENT 54 DURING THE PREVIOUS CALENDAR YEAR, TO THE EXTENT THAT IT IS PRACTICABLE 55 TO USE THAT INFORMATION. S. 60--A 76 A. 160--A 1 (E) CROSS-REFERENCES. FOR APPLICATION OF THE CREDIT PROVIDED FOR IN 2 THIS SECTION, SEE THE FOLLOWING PROVISIONS OF THIS CHAPTER: 3 (1) ARTICLE 9-A: SECTION 210: SUBDIVISION 41. 4 (2) ARTICLE 22: SECTION 606: SUBSECTION (QQ). 5 (3) ARTICLE 32: SECTION 1456: SUBSECTION (U). 6 (4) ARTICLE 33: SECTION 1511: SUBDIVISION (Y). 7 S 2. Section 210 of the tax law is amended by adding a new subdivision 8 41 to read as follows: 9 41. RESEARCH EXPENDITURES CREDIT. (A) ALLOWANCE OF CREDIT. A TAXPAYER 10 SHALL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN SECTION THIRTY 11 OF THIS CHAPTER, AGAINST THE TAX IMPOSED BY THIS ARTICLE. 12 (B) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION 13 FOR ANY TAXABLE YEAR SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS 14 THAN THE HIGHER OF THE AMOUNTS PRESCRIBED IN PARAGRAPHS (C) AND (D) OF 15 SUBDIVISION ONE OF THIS SECTION. HOWEVER, IF THE AMOUNT OF CREDITS 16 ALLOWED UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR REDUCES THE TAX TO 17 SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE IN SUCH TAXABLE 18 YEAR SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR 19 REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND 20 EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS OF 21 SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER 22 NOTWITHSTANDING, NO INTEREST SHALL BE PAID THEREON. 23 S 3. Section 606 of the tax law is amended by adding a new subsection 24 (qq) to read as follows: 25 (QQ) RESEARCH EXPENDITURES CREDIT. (1) ALLOWANCE OF CREDIT. A TAXPAY- 26 ER SHALL BE ALLOWED A CREDIT, TO THE EXTENT ALLOWED UNDER SECTION THIRTY 27 OF THIS CHAPTER, AGAINST THE TAX IMPOSED BY THIS ARTICLE. 28 (2) APPLICATION OF CREDIT. IF THE AMOUNT OF THE CREDIT ALLOWED UNDER 29 THIS SUBSECTION FOR ANY TAXABLE YEAR EXCEEDS THE TAXPAYER'S TAX FOR SUCH 30 YEAR, THE EXCESS SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDIT- 31 ED OR REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION SIX HUNDRED 32 EIGHTY-SIX OF THIS ARTICLE, PROVIDED, HOWEVER, THAT NO INTEREST SHALL BE 33 PAID THEREON. 34 S 4. Subparagraph (B) of paragraph (1) of subsection (i) of section 35 606 of the tax law, as amended by section 2 of part ZZ-1 of chapter 57 36 of the laws of 2008, is amended to read as follows: 37 (B) shall be treated as the owner of a new business with respect to 38 such share if the corporation qualifies as a new business pursuant to 39 paragraph (j) of subdivision twelve of section two hundred ten of this 40 chapter. 41 The corporation's credit base under 42 section two hundred ten or section 43 With respect to the following fourteen hundred fifty-six of this 44 credit under this section: chapter is: 45 Investment tax credit Investment credit base 46 under subsection (a) or qualified 47 rehabilitation 48 expenditures under 49 subdivision twelve of 50 section two hundred ten 51 Empire zone Cost or other basis 52 investment tax credit under subdivision 53 under subsection (j) twelve-B S. 60--A 77 A. 160--A 1 of section two hundred 2 ten 3 Empire zone Eligible wages under 4 wage tax credit subdivision nineteen of 5 under subsection (k) section two hundred ten 6 or subsection (e) of 7 section fourteen hundred 8 fifty-six 9 Empire zone Qualified investments 10 capital tax credit and contributions under 11 under subsection (l) subdivision twenty of 12 section two hundred ten 13 or subsection (d) of 14 section fourteen hundred 15 fifty-six 16 Agricultural property tax Allowable school 17 credit under subsection (n) district property taxes under 18 subdivision twenty-two of 19 section two hundred ten 20 Credit for employment Qualified first-year wages or 21 of persons with dis- qualified second-year wages 22 abilities under under subdivision 23 subsection (o) twenty-three of section 24 two hundred ten 25 or subsection (f) 26 of section fourteen 27 hundred fifty-six 28 Employment incentive Applicable investment credit 29 credit under subsec- base under subdivision 30 tion (a-1) twelve-D of section two 31 hundred ten 32 Empire zone Applicable investment 33 employment credit under sub- 34 incentive credit under division twelve-C 35 subsection (j-1) of section two hundred ten 36 Alternative fuels credit Cost under subdivision 37 under subsection (p) twenty-four of section two 38 hundred ten 39 Qualified emerging Applicable credit base 40 technology company under subdivision twelve-E 41 employment credit of section two hundred ten 42 under subsection (q) 43 Qualified emerging Qualified investments under 44 technology company subdivision twelve-F of 45 capital tax credit section two hundred ten 46 under subsection (r) S. 60--A 78 A. 160--A 1 Credit for purchase of an Cost of an automated 2 automated external defibrillator external defibrillator under 3 under subsection (s) subdivision twenty-five of 4 section two hundred ten 5 or subsection (j) of section 6 fourteen hundred fifty-six 7 Low-income housing Credit amount under 8 credit under subsection (x) subdivision thirty 9 of section two hundred ten or 10 subsection (l) of section 11 fourteen hundred fifty-six 12 Credit for transportation Amount of credit under sub- 13 improvement contributions division thirty-two of section 14 under subsection (z) two hundred ten or subsection 15 (n) of section fourteen 16 hundred fifty-six 17 QEZE credit for real property Amount of credit under 18 taxes under subsection (bb) subdivision twenty-seven of 19 section two hundred ten or 20 subsection (o) of section 21 fourteen hundred fifty-six 22 QEZE tax reduction credit Amount of benefit period 23 under subsection (cc) factor, employment increase factor 24 and zone allocation 25 factor (without regard 26 to pro ration) under 27 subdivision twenty-eight of 28 section two hundred ten or 29 subsection (p) of section 30 fourteen hundred fifty-six 31 and amount of tax factor 32 as determined under 33 subdivision (f) of section sixteen 34 Green building credit Amount of green building credit 35 under subsection (y) under subdivision thirty-one 36 of section two hundred ten 37 or subsection (m) of section 38 fourteen hundred fifty-six 39 Credit for long-term Qualified costs under 40 care insurance premiums subdivision twenty-five-a of 41 under subsection (aa) section two hundred ten 42 or subsection (k) of section 43 fourteen hundred fifty-six 44 Brownfield redevelopment Amount of credit 45 credit under subsection under subdivision 46 (dd) thirty-three of section 47 two hundred ten 48 or subsection (q) of 49 section fourteen hundred S. 60--A 79 A. 160--A 1 fifty-six 2 Remediated brownfield Amount of credit under 3 credit for real property subdivision thirty-four 4 taxes for qualified of section two hundred 5 sites under subsection ten or subsection (r) of 6 (ee) section fourteen hundred 7 fifty-six 8 Environmental Amount of credit under 9 remediation subdivision thirty-five of 10 insurance credit under section two hundred 11 subsection (ff) ten or subsection 12 (s) of section 13 fourteen hundred 14 fifty-six 15 Empire state film production Amount of credit for qualified 16 credit under subsection (gg) production costs in production 17 of a qualified film under 18 subdivision thirty-six of 19 section two hundred ten 20 Qualified emerging Qualifying expenditures and 21 technology company facilities, development activities under 22 operations and training credit subdivision twelve-G of section 23 under subsection (nn) two hundred ten 24 Security training tax Amount of credit 25 credit under under subdivision thirty-seven 26 subsection (ii) of section two hundred ten or 27 under subsection (t) of 28 section fourteen hundred fifty-six 29 Credit for qualified fuel Amount of credit under 30 cell electric generating equipment subdivision thirty-seven 31 expenditures under subsection (g-2) of section two hundred ten 32 or subsection (t) of 33 section fourteen hundred 34 fifty-six 35 Empire state commercial production Amount of credit for qualified 36 credit under subsection (jj) production costs in production 37 of a qualified commercial under 38 subdivision thirty-eight of sec- 39 tion two hundred ten 40 Biofuel production Amount of credit 41 tax credit under under subdivision 42 subsection (jj) thirty-eight of 43 section two hundred ten 44 Clean heating fuel credit Amount of credit under 45 under subsection (mm) subdivision thirty-nine of 46 section two hundred ten S. 60--A 80 A. 160--A 1 Credit for rehabilitation Amount of credit under 2 of historic properties subdivision forty of 3 under subsection (oo) subsection two hundred ten 4 Credit for companies who Amount of credit under 5 provide transportation subdivision forty of 6 to individuals section two hundred ten 7 with disabilities 8 under subsection (oo) 9 RESEARCH EXPENDITURES CREDIT AMOUNT OF CREDIT UNDER 10 UNDER SUBSECTION (QQ) SUBDIVISION FORTY-ONE OF 11 SECTION TWO HUNDRED TEN OR 12 UNDER SUBSECTION (U) OF SECTION 13 FOURTEEN HUNDRED FIFTY-SIX 14 S 5. Section 1456 of the tax law is amended by adding a new subsection 15 (u) to read as follows: 16 (U) RESEARCH EXPENDITURES CREDIT. (1) ALLOWANCE OF CREDIT. A TAXPAYER 17 SHALL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN SECTION THIRTY 18 OF THIS CHAPTER, AGAINST THE TAX IMPOSED BY THIS ARTICLE. 19 (2) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBSECTION 20 FOR ANY TAXABLE YEAR SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS 21 THAN THE MINIMUM TAX FIXED BY PARAGRAPH THREE OF SUBSECTION (B) OF 22 SECTION FOURTEEN HUNDRED FIFTY-FIVE OF THIS ARTICLE. HOWEVER, IF THE 23 AMOUNT OF CREDITS ALLOWED UNDER THIS SUBSECTION FOR ANY TAXABLE YEAR 24 REDUCES THE TAX TO SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE 25 IN SUCH TAXABLE YEAR SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE 26 CREDITED OR REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE 27 THOUSAND EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS 28 OF SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER 29 NOTWITHSTANDING, NO INTEREST SHALL BE PAID THEREON. 30 S 6. Section 1511 of the tax law is amended by adding a new subdivi- 31 sion (y) to read as follows: 32 (Y) RESEARCH EXPENDITURES CREDIT. (1) ALLOWANCE OF CREDIT. A TAXPAYER 33 SHALL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN SECTION THIRTY 34 OF THIS CHAPTER, AGAINST THE TAXES IMPOSED BY THIS ARTICLE. 35 (2) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION 36 FOR ANY TAXABLE YEAR SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS 37 THAN THE MINIMUM TAX FIXED BY THIS ARTICLE. HOWEVER, IF THE AMOUNT OF 38 CREDITS ALLOWED UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR REDUCES THE 39 TAX TO SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE IN SUCH 40 TAXABLE YEAR SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR 41 REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND 42 EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS OF 43 SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER 44 NOTWITHSTANDING, NO INTEREST SHALL BE PAID THEREON. 45 S 7. Subdivision 12-G of section 210 of the tax law is amended by 46 adding a new paragraph (i) to read as follows: 47 (I) ANY TAXPAYER THAT HAS RESEARCH EXPENDITURES THAT MAY BE USED IN 48 CALCULATING BOTH THE CREDIT DESCRIBED IN THIS SUBDIVISION AND THE 49 "RESEARCH EXPENDITURES CREDIT" DESCRIBED IN SECTION THIRTY OF THIS CHAP- 50 TER, MAY ELECT TO USE THOSE EXPENDITURES TO CALCULATE EITHER THE CREDIT 51 ALLOWED UNDER THIS SUBDIVISION OR THE CREDIT DESCRIBED IN SECTION THIRTY 52 OF THIS CHAPTER, BUT NOT BOTH. S. 60--A 81 A. 160--A 1 S 8. Subsection (nn) of section 606 of the tax law is amended by 2 adding a new paragraph (9) to read as follows: 3 (9) ANY TAXPAYER THAT HAS RESEARCH EXPENDITURES THAT MAY BE USED IN 4 CALCULATING BOTH THE CREDIT DESCRIBED IN THIS SUBSECTION AND THE 5 "RESEARCH EXPENDITURES CREDIT" DESCRIBED IN SECTION THIRTY OF THIS CHAP- 6 TER, MAY USE THOSE EXPENDITURES TO CALCULATE EITHER THE CREDIT ALLOWED 7 UNDER THIS SUBSECTION OR THE CREDIT DESCRIBED IN SECTION THIRTY OF THIS 8 CHAPTER, BUT NOT BOTH. 9 S 9. The chairman of the urban development corporation, after consult- 10 ing with the commissioner of taxation and finance and the director of 11 the division of the budget shall promulgate regulations by October 31, 12 2009 to establish procedures for the awarding and allocation of the 13 research expenditures credits allowed under section thirty of the tax 14 law, as added by section one of this act. Such rules and regulations 15 shall include a description of the standards to be used to evaluate the 16 applications, the type of documentation to be provided by taxpayers to 17 substantiate the taxpayer's New York research expenditures, and any 18 other provisions the chairman determines to be necessary. Notwithstand- 19 ing any other provisions to the contrary in the state administrative 20 procedure act, the rules and regulations described in this section shall 21 be adopted on an emergency basis if necessary. 22 S 10. The chairman of the urban development corporation shall publish 23 a report on the research expenditures credit and the research expendi- 24 tures credit certificate issuance process on or before January first of 25 each year. Such report shall include, but not be limited to, the 26 following information: 27 (a) the total number of recipients and the total amount of credits 28 awarded; 29 (b) the name of every recipient of a research credit certificate; and 30 (c) the amount of credit awarded to each recipient of a research cred- 31 it certificate. 32 The report shall be issued no later than 60 days after the conclusion of 33 the research expenditures credit allocation process. 34 S 11. The chairman of the urban development corporation shall not 35 issue research expenditures credit certificates for the credit for 36 increasing research activities allowed under section 30 of the tax law, 37 as added by section one of this act, until the director of the division 38 of the budget, in consultation with the commissioner of taxation and 39 finance, validates that the Empire Zone Program reforms enacted as part 40 of the 2009-2010 Executive Budget have resulted in $100 million in 41 savings for the 2009-10 state fiscal year. 42 S 12. This act shall take effect immediately and shall apply to taxa- 43 ble years beginning on or after January 1, 2009; provided, however that 44 the empire state film production credit under subsection (gg), the 45 empire state commercial production credit under subsection (jj) and the 46 credit for companies who provide transportation to individuals with 47 disabilities under subsection (oo) of section 606 of the tax law 48 contained in section four of this act shall expire on the same date as 49 provided in section 9 of part P of chapter 60 of the laws of 2004, as 50 amended, section 10 of part V of chapter 62 of the laws of 2006, as 51 amended and section 5 of chapter 522 of the laws of 2006, as amended, 52 respectively. 53 PART P S. 60--A 82 A. 160--A 1 Section 1. Paragraph (b) of subdivision 12-G of section 210 of the tax 2 law, as amended by section 1-a of part A of chapter 63 of the laws of 3 2005, is amended to read as follows: 4 (b) An eligible taxpayer shall (i) have no more than one hundred full- 5 time employees, of which at least seventy-five percent are employed in 6 New York state, EXCEPT AS OTHERWISE PROVIDED IN THIS PARAGRAPH, (ii) 7 have a ratio of research and development funds to net sales, as referred 8 to in section thirty-one hundred two-e of the public authorities law, 9 which equals or exceeds six percent during its taxable year, and (iii) 10 have gross revenues, along with the gross revenues of its affiliates and 11 related members, not exceeding twenty million dollars for the taxable 12 year immediately preceding the year the taxpayer is allowed a credit 13 under this subdivision. For purposes of this paragraph, the term 14 "related member" shall have the same meaning as set forth in [clauses] 15 CLAUSE (A) [and (B)] of subparagraph one of paragraph (o) of subdivision 16 nine of section two hundred eight of this article, and the term "affil- 17 iates" shall mean those corporations that are members of the same affil- 18 iated group (as defined in section fifteen hundred four of the internal 19 revenue code) as the taxpayer. FOR PURPOSES OF SUBPARAGRAPH (I) OF THIS 20 PARAGRAPH, EMPLOYEES WHO ARE EMPLOYED OUTSIDE THE UNITED STATES DURING 21 THE TAXABLE YEAR CANNOT BE CONSIDERED; A TAXPAYER THAT MEETS THE EMPLOY- 22 MENT REQUIREMENTS IN SUBPARAGRAPH (I) OF THIS PARAGRAPH IN THE FIRST 23 YEAR IN WHICH THE CREDIT ALLOWED BY THIS SUBDIVISION IS CLAIMED WILL NOT 24 BE CONSIDERED INELIGIBLE SOLELY AS A RESULT OF HAVING MORE THAN ONE 25 HUNDRED FULL-TIME EMPLOYEES IN OTHER TAXABLE YEARS IN WHICH THE CREDIT 26 IS CLAIMED, PROVIDED AT LEAST SEVENTY-FIVE PERCENT OF THE FULL-TIME 27 EMPLOYEES IN THE OTHER TAXABLE YEARS ARE EMPLOYED IN NEW YORK STATE; AND 28 AN INDIVIDUAL WHO IS A PARTNER IN A PARTNERSHIP THAT IS A QUALIFIED 29 EMERGING TECHNOLOGY COMPANY WILL BE CONSIDERED A FULL-TIME EMPLOYEE IF 30 THE INDIVIDUAL PARTNER PARTICIPATES IN THE PARTNERSHIP ON A FULL-TIME 31 BASIS DURING THE TAXABLE YEAR AND THE INVOLVEMENT OF THE INDIVIDUAL 32 PARTNER IN THE ACTIVITIES OF THE PARTNERSHIP DURING THE TAXABLE YEAR 33 SATISFIES THE REQUIREMENTS FOR MATERIAL PARTICIPATION FOR THE SAME TAXA- 34 BLE YEAR WITHIN THE MEANING OF SUBSECTION (H) OF SECTION 469 OF THE 35 INTERNAL REVENUE CODE. 36 S 2. Subparagraphs (i) and (iii) of paragraph 2 of subsection (nn) of 37 section 606 of the tax law, as amended by section 1-a of part A of chap- 38 ter 63 of the laws of 2005, are amended to read as follows: 39 (i) have no more than one hundred full-time employees, of which at 40 least seventy-five percent are employed in New York state, EXCEPT AS 41 OTHERWISE PROVIDED IN THIS PARAGRAPH, 42 (iii) have gross revenues, along with the gross revenues of its affil- 43 iates and related members, not exceeding twenty million dollars for the 44 taxable year immediately preceding the year the taxpayer is allowed a 45 credit under this subsection. For purposes of this paragraph, the term 46 "related member" shall have the same meaning as set forth in [clauses] 47 CLAUSE (A) [and (B)] of subparagraph one of paragraph (o) of subdivision 48 9 of section two hundred eight of this chapter, and the term "affil- 49 iates" shall mean those corporations that are members of the same affil- 50 iated group (as defined in section fifteen hundred four of the internal 51 revenue code) as the taxpayer. FOR PURPOSES OF SUBPARAGRAPH (I) OF THIS 52 PARAGRAPH, EMPLOYEES WHO ARE EMPLOYED OUTSIDE THE UNITED STATES DURING 53 THE TAXABLE YEAR CANNOT BE CONSIDERED; A TAXPAYER THAT MEETS THE EMPLOY- 54 MENT REQUIREMENTS IN SUBPARAGRAPH (I) OF THIS PARAGRAPH IN THE FIRST 55 YEAR IN WHICH THE CREDIT ALLOWED BY THIS SUBSECTION IS CLAIMED WILL NOT 56 BE CONSIDERED INELIGIBLE SOLELY AS A RESULT OF HAVING MORE THAN ONE S. 60--A 83 A. 160--A 1 HUNDRED FULL-TIME EMPLOYEES IN OTHER TAXABLE YEARS IN WHICH THE CREDIT 2 IS CLAIMED, PROVIDED AT LEAST SEVENTY-FIVE PERCENT OF THE FULL-TIME 3 EMPLOYEES IN THE OTHER TAXABLE YEARS ARE EMPLOYED IN NEW YORK STATE; AND 4 AN INDIVIDUAL WHO IS A PARTNER IN A PARTNERSHIP THAT IS A QUALIFIED 5 EMERGING TECHNOLOGY COMPANY WILL BE CONSIDERED A FULL-TIME EMPLOYEE IF 6 THE INDIVIDUAL PARTNER PARTICIPATES IN THE PARTNERSHIP ON A FULL-TIME 7 BASIS DURING THE TAXABLE YEAR AND THE INVOLVEMENT OF THE INDIVIDUAL 8 PARTNER IN THE ACTIVITIES OF THE PARTNERSHIP DURING THE TAXABLE YEAR 9 SATISFIES THE REQUIREMENTS FOR MATERIAL PARTICIPATION FOR THE SAME TAXA- 10 BLE YEAR WITHIN THE MEANING OF SUBSECTION (H) OF SECTION 469 OF THE 11 INTERNAL REVENUE CODE. 12 S 3. This act shall take effect immediately and apply to taxable years 13 beginning on or after January 1, 2010. 14 PART Q 15 Section 1. Subdivision (b) of section 1101 of the tax law is amended 16 by adding a new paragraph 27-a to read as follows: 17 (27-A) (I) "CABLE SERVICE" MEANS THE FURNISHING TO PURCHASERS OF 18 PROGRAMS AND OTHER CONTENT FROM ONE OR MORE TELEVISION OR RADIO STATIONS 19 OR NETWORKS OR OTHER PERSONS, BY MEANS OF WIRE, CABLE, FIBER-OPTIC, 20 LASER, MICROWAVE, RADIO WAVE, SATELLITE, OR ANY OTHER MEANS. 21 (II) "DIRECT-TO-HOME SATELLITE SERVICE" MEANS ONLY PROGRAMMING TRANS- 22 MITTED OR BROADCAST BY SATELLITE DIRECTLY TO THE SUBSCRIBERS' PREMISES 23 WITHOUT THE USE OF GROUND RECEIVING OR DISTRIBUTION EQUIPMENT, EXCEPT AT 24 THE SUBSCRIBERS' PREMISES OR IN THE UPLINK PROCESS TO THE SATELLITE. 25 S 2. Subdivision (c) of section 1105 of the tax law is amended by 26 adding a new paragraph 12 to read as follows: 27 (12) (A) CABLE SERVICE, INCLUDING ANY TANGIBLE PERSONAL PROPERTY AND 28 ANY SERVICE OR OTHER CONTENT PROVIDED WITH THE CABLE SERVICE, WHETHER OR 29 NOT FOR A SEPARATE CHARGE, BUT NOT INCLUDING DIRECT-TO-HOME SATELLITE 30 SERVICE, INTERNET ACCESS SERVICE AS DEFINED IN NOTE SECTION 1101 OF 31 SECTION 151 OF TITLE 47 OF THE UNITED STATES CODE, OR TELEPHONY OR 32 TELEGRAPHY OR TELEPHONE OR TELEGRAPH SERVICE OF WHATEVER NATURE. 33 (B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, IF 34 CABLE SERVICE IS RECEIVED IN A MOTOR VEHICLE OR VESSEL, THE SERVICE IS 35 SOURCED TO THE PURCHASER'S "PLACE OF PRIMARY USE," AS THAT TERM IS 36 DEFINED IN PARAGRAPH TWENTY-SIX OF SUBDIVISION (B) OF SECTION ELEVEN 37 HUNDRED ONE OF THIS ARTICLE, EXCEPT THAT: (I) THE TERM "MOBILE TELECOM- 38 MUNICATIONS CUSTOMER" MEANS "PURCHASER"; AND (II) SUBPARAGRAPH (II) OF 39 SUCH PARAGRAPH DOES NOT APPLY. 40 S 3. The tax law is amended by adding a new section 1105-E to read as 41 follows: 42 S 1105-E. STATE TAX ON DIRECT-TO-HOME SATELLITE SERVICE. (A) A TAX IS 43 HEREBY IMPOSED AND MUST BE PAID ON DIRECT-TO-HOME SATELLITE SERVICE, AT 44 A RATE EQUAL TO THE SUM OF: (1) THE STATE RATE IN THE OPENING PARAGRAPH 45 OF SECTION ELEVEN HUNDRED FIVE OF THIS PART; (2) THE RATE IN SUBDIVISION 46 (A) OF SECTION ELEVEN HUNDRED NINE OF THIS PART IF THE SERVICE IS DELIV- 47 ERED WITHIN THE METROPOLITAN COMMUTER TRANSPORTATION DISTRICT ESTAB- 48 LISHED PURSUANT TO SECTION TWELVE HUNDRED SIXTY-TWO OF THE PUBLIC 49 AUTHORITIES LAW; AND (3) THE SUM OF THE LOCAL RATES OF TAX DESCRIBED IN 50 SUBDIVISION (A) OF SECTION TWELVE HUNDRED TEN OR SECTION TWELVE HUNDRED 51 ELEVEN OF THIS CHAPTER IMPOSED PURSUANT TO THE AUTHORITY OF SUBPART B OF 52 PART I OF ARTICLE TWENTY-NINE OF THIS CHAPTER IN THE PLACE WHERE THE 53 SERVICE IS DELIVERED. S. 60--A 84 A. 160--A 1 (B) DEPOSIT AND DISTRIBUTION OF REVENUE. AFTER SUBTRACTING THE AMOUNT 2 DISPOSED OF PURSUANT TO SUBDIVISION (H) OF SECTION TWELVE HUNDRED 3 SIXTY-ONE OF THIS CHAPTER AND THE AMOUNT DISPOSED OF UNDER SUBDIVISION 4 (I) OF SECTION ELEVEN HUNDRED NINE OF THIS PART, ANY REMAINING TAXES, 5 INTEREST AND PENALTIES COLLECTED OR RECEIVED BY THE COMMISSIONER FROM 6 THE TAX IMPOSED BY THIS SECTION WILL BE DISPOSED OF IN ACCORDANCE WITH 7 SECTION ONE HUNDRED SEVENTY-ONE-A OF THIS CHAPTER AS PROVIDED IN SECTION 8 ELEVEN HUNDRED FORTY-EIGHT OF THIS ARTICLE. 9 (C) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, THE TAXES IMPOSED BY 10 THIS SECTION WILL BE IDENTICAL TO, AND ADMINISTERED AND COLLECTED IN A 11 LIKE MANNER AS, THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED FIVE OF THIS 12 ARTICLE. ALL THE PROVISIONS OF THIS ARTICLE, INCLUDING THE DEFINITION 13 AND EXEMPTION PROVISIONS AND THE PROVISIONS RELATING OR APPLICABLE TO 14 THE ADMINISTRATION, COLLECTION AND DISPOSITION OF THE TAXES IMPOSED BY 15 THAT SECTION WILL APPLY TO THE TAX IMPOSED BY THIS SECTION SO FAR AS 16 THOSE PROVISIONS CAN BE MADE APPLICABLE TO THE TAX IMPOSED BY THIS 17 SECTION, WITH SUCH MODIFICATIONS AS MAY BE NECESSARY IN ORDER TO ADAPT 18 THE LANGUAGE OF THOSE PROVISIONS TO THE TAX IMPOSED BY THIS SECTION. 19 THOSE PROVISIONS WILL APPLY WITH THE SAME FORCE AND EFFECT AS IF THE 20 LANGUAGE OF THOSE PROVISIONS HAD BEEN SET FORTH IN FULL IN THIS SECTION, 21 EXCEPT TO THE EXTENT THAT ANY OF THOSE PROVISIONS IS EITHER INCONSISTENT 22 WITH A PROVISION OF THIS SECTION OR IS NOT RELEVANT TO THE TAX IMPOSED 23 BY THIS SECTION. FOR PURPOSES OF THIS SECTION, ANY REFERENCE IN THIS 24 CHAPTER TO A TAX OR THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED FIVE OF 25 THIS ARTICLE WILL BE DEEMED ALSO TO REFER TO THE TAX IMPOSED BY THIS 26 SECTION UNLESS A DIFFERENT MEANING IS CLEARLY REQUIRED. 27 (D) SEPARATE STATEMENT OF TAX. EVERY PERSON REQUIRED TO COLLECT THE 28 TAX IMPOSED BY THIS SECTION SHALL STATE, CHARGE, AND SHOW THAT TAX SEPA- 29 RATELY FROM THE PRICE OR CHARGE, AND ALSO SEPARATELY FROM ANY OTHER TAX 30 IMPOSED BY THIS ARTICLE OR OTHER LAW ON ANY SALES SLIP, INVOICE, RECEIPT 31 OR OTHER STATEMENT OR MEMORANDUM OF THE PRICE OR CHARGE, PAID OR PAYA- 32 BLE, GIVEN TO THE CUSTOMER. 33 (E) TAXES TO BE IN ADDITION TO ANY OTHER. THE TAXES IMPOSED BY THIS 34 SECTION SHALL BE IN ADDITION TO ANY OTHER TAX IMPOSED OR AUTHORIZED TO 35 BE IMPOSED BY THIS CHAPTER OR OTHER LAW. 36 (F) TAXES NOT TO APPLY TO OTHER IMPOSITIONS. THE TAXES IMPOSED BY THIS 37 SECTION SHALL NOT APPLY TO THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED 38 SEVEN, ELEVEN HUNDRED EIGHT, OR ELEVEN HUNDRED NINE OF THIS ARTICLE OR 39 TO TAXES AUTHORIZED TO BE IMPOSED BY ARTICLE TWENTY-NINE OF THIS CHAP- 40 TER. 41 S 4. Section 1109 of the tax law is amended by adding a new subdivi- 42 sion (i) to read as follows: 43 (I) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE 44 PORTION OF THE TAXES, INTEREST AND PENALTIES COLLECTED OR RECEIVED BY 45 THE COMMISSIONER FROM THE TAX IMPOSED BY SECTION ELEVEN HUNDRED FIVE-E 46 OF THIS PART IN THE AREA OF THE STATE WITHIN THE METROPOLITAN COMMUTER 47 TRANSPORTATION DISTRICT BASED ON THE RATE OF TAX IN EFFECT IN SUBDIVI- 48 SION (A) OF THIS SECTION, WILL BE DISPOSED OF IN ACCORDANCE WITH THE 49 PROVISIONS OF SUBDIVISION (D) OF THIS SECTION. 50 S 5. Clause (ii) of paragraph 1 of subdivision (b) of section 1116 of 51 the tax law, as amended by section 1 of part KK-1 of chapter 57 of the 52 laws of 2008, is amended to read as follows: 53 (ii) sales, other than for resale, of services described in subdivi- 54 sion (b) or paragraph five OR TWELVE of subdivision (c) of section elev- 55 en hundred five of this article OR IN SECTION ELEVEN HUNDRED FIVE-E OF 56 THIS ARTICLE by that organization, whether or not at a shop or store; S. 60--A 85 A. 160--A 1 S 6. Section 1148 of the tax law, as amended by chapter 3 of the laws 2 of 2004, is amended to read as follows: 3 S 1148. Deposit and disposition of revenue. All taxes, interest and 4 penalties collected or received by the commissioner under this article 5 shall be deposited and disposed of pursuant to the provisions of section 6 one hundred seventy-one-a of this chapter; provided however, the comp- 7 troller shall on or before the twelfth day of each month, pay all such 8 taxes, interest and penalties collected under this article and remaining 9 to the comptroller's credit in such banks, banking houses or trust 10 companies at the close of business on the last day of the preceding 11 month, into the general fund of the state treasury, except as otherwise 12 provided in sections ninety-two-d and ninety-two-r of the state finance 13 law [and], sections eleven hundred two, eleven hundred four and eleven 14 hundred nine of this article, AND SUBDIVISION (B) OF SECTION ELEVEN 15 HUNDRED FIVE-E OF THIS ARTICLE. 16 S 7. Section 1261 of the tax law is amended by adding a new subdivi- 17 sion (h) to read as follows: 18 (H) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, A PORTION OF 19 THE TAXES, INTEREST AND PENALTIES COLLECTED OR RECEIVED BY THE COMMIS- 20 SIONER FROM THE TAX IMPOSED BY SECTION ELEVEN HUNDRED FIVE-E OF THIS 21 CHAPTER WILL BE ALLOCATED TO EACH LOCALITY THAT IMPOSES THE TAXES 22 DESCRIBED IN SUBDIVISION (A) OF SECTION TWELVE HUNDRED TEN OR SECTION 23 TWELVE HUNDRED ELEVEN OF THIS ARTICLE BASED ON THE SUM OF THE LOCAL 24 RATES OF TAX IN EFFECT IN THAT LOCALITY IMPOSED PURSUANT TO THE AUTHORI- 25 TY OF SUBPART B OF PART I OF THIS ARTICLE. THE AMOUNT TO BE ALLOCATED TO 26 EACH LOCALITY WILL BE CERTIFIED BY THE COMMISSIONER IN ACCORDANCE WITH 27 SUBDIVISION (A) OF THIS SECTION AND, AFTER RESERVING AN AMOUNT FOR 28 REFUNDS AND THE REASONABLE COSTS OF THE COMMISSIONER IN ACCORDANCE WITH 29 SUBDIVISION (B) OF THIS SECTION, THE REMAINDER WILL BE NET COLLECTIONS 30 AND WILL BE DISTRIBUTED TO EACH LOCALITY IN ACCORDANCE WITH THE 31 PROVISIONS OF THIS PART APPLICABLE TO THE RESPECTIVE LOCALITY. 32 S 8. In accordance with section 1105-E of the tax law, as added by 33 section three of this act, the legislature intends that the tax on 34 direct-to-home satellite service be imposed at the same total rate as 35 similar services are taxed under article 28 and pursuant to the authori- 36 ty of article 29 of the tax law, and that, consistent with the 37 provisions of section 152 of title 47 of the United States code, the 38 state revenues derived from the tax on direct-to-home satellite service 39 be shared with each locality that imposes the taxes described in subdi- 40 vision (a) of section 1210 or 1211 of the tax law as provided in this 41 act. However, the legislature further intends that, if the state rate 42 set forth in such section 1105-E is invalidated or reduced by a court of 43 final, competent jurisdiction, revenues from the sales tax imposed on 44 direct-to-home satellite service must be preserved by imposing a uniform 45 state rate of sales tax on that service. Therefore, if a court of final, 46 competent jurisdiction adjudges the state sales tax rate set forth in 47 such section 1105-E to be invalid, the state rate imposed on direct-to- 48 home satellite service will be eight and three-quarters percent and that 49 rate will apply statewide. The taxes, interest and penalties collected 50 or received by the commissioner of taxation and finance from such state- 51 wide rate, after reserving an amount for refunds and the reasonable 52 costs of the commissioner will be allocated based on the respective 53 rates among the state and any county and city imposing general sales 54 taxes pursuant to the authority of subdivision (a) of section 1210 of 55 the tax law and any school district in which the taxes authorized by 56 section 1211 of the tax law are in effect, and if the taxes imposed by S. 60--A 86 A. 160--A 1 section 1109 of the tax law are in effect where the service is deliv- 2 ered, will be deposited with the mass transit operating assistance fund 3 as provided in such section 1109. Moreover, the state rate provided for 4 in this section will, in that event, take effect on the first day of the 5 first month following the date the judgment of the court becomes final 6 and will apply to sales occurring and services rendered on or after that 7 date, in accordance with the applicable transitional provisions in 8 section 1106 of the tax law. 9 S 9. This act shall take effect on June 1, 2009, and shall apply to 10 sales occurring and services rendered on or after that date in accord- 11 ance with the applicable transitional provisions in sections 1106 and 12 1217 of the tax law. 13 PART R 14 Section 1. Subdivisions 1 and 19 of section 470 of the tax law, as 15 amended by section 1 of part MM1 of chapter 57 of the laws of 2008, are 16 amended to read as follows: 17 1. "Cigarette." (a) Any roll for smoking made wholly or in part of 18 tobacco or of any other substance wrapped in paper or in any other 19 substance not containing tobacco, and (b) any roll for smoking made 20 wholly or in part of tobacco wrapped in any substance containing tobacco 21 that, because of its appearance, the type of tobacco used in the filler, 22 or its packaging and labeling, is likely to be offered to, or purchased 23 by, consumers as a cigarette described in paragraph (a) of this subdivi- 24 sion. [However, a roll will not be considered to be a cigarette for 25 purposes of paragraph (b) of this subdivision if it is not treated as a 26 cigarette for federal excise tax purposes under the applicable federal 27 statute in effect on April first, two thousand eight.] 28 19. "Cigar." Any roll of tobacco wrapped in leaf tobacco or in any 29 substance containing tobacco (other than any roll of tobacco that is a 30 cigarette as defined in subdivision one of this section). [However, a 31 roll will not be considered to be a cigar for purposes of this subdivi- 32 sion if it is not treated as a cigar for federal excise tax purposes 33 under the applicable federal statute in effect on April first, two thou- 34 sand eight.] 35 S 2. Paragraph (a) of subdivision 1 of section 471-b of the tax law, 36 as amended by section 2 of part QQ1 of chapter 57 of the laws of 2008, 37 is amended and a new paragraph (c) is added to read as follows: 38 (a) Such tax on tobacco products other than snuff AND CIGARS shall be 39 at the rate of thirty-seven percent of the wholesale price, and is 40 intended to be imposed only once upon the sale of any tobacco products 41 other than snuff AND CIGARS. 42 (C) SUCH TAX ON CIGARS SHALL BE AT THE RATE OF FIFTY CENTS PER CIGAR. 43 S 3. Section 471-c of the tax law, as separately amended by section 3 44 of part QQ1 of chapter 57 and chapter 552 of the laws of 2008, is 45 amended to read as follows: 46 S 471-c. Use tax on tobacco products. (A) There is hereby imposed and 47 shall be paid a tax on all tobacco products used in the state by any 48 person, except that no such tax shall be imposed (1) if the tax provided 49 in section four hundred seventy-one-b of this article is paid, or (2) on 50 the use of tobacco products which are exempt from the tax imposed by 51 said section, or (3) on the use of two hundred fifty cigars or less, or 52 five pounds or less of tobacco other than roll-your-own tobacco, or 53 thirty-six ounces or less of roll-your-own tobacco brought into the 54 state on, or in the possession of, any person. S. 60--A 87 A. 160--A 1 [(a)] (I) Such tax on tobacco products other than snuff AND CIGARS 2 shall be at the rate of thirty-seven percent of the wholesale price. 3 [(b)] (II) Such tax on snuff shall be at the rate of ninety-six cents 4 per ounce and a proportionate rate on any fractional parts of an ounce, 5 provided that cans or packages of snuff with a net weight of less than 6 one ounce shall be taxed at the equivalent rate of cans or packages 7 weighing one ounce. Such tax shall be computed based on the net weight 8 as listed by the manufacturer. 9 (III) SUCH TAX ON CIGARS SHALL BE AT THE RATE OF FIFTY CENTS PER 10 CIGAR. 11 (B) Within twenty-four hours after liability for the tax accrues, each 12 such person shall file with the commissioner a return in such form as 13 the commissioner may prescribe together with a remittance of the tax 14 shown to be due thereon. For purposes of this article, the word "use" 15 means the exercise of any right or power actual or constructive and 16 shall include but is not limited to the receipt, storage or any keeping 17 or retention for any length of time, but shall not include possession 18 for sale. All the other provisions of this article, if not inconsistent, 19 shall apply to the administration and enforcement of the tax imposed by 20 this section in the same manner as if the language of said provisions 21 had been incorporated in full into this section. 22 S 4. Paragraphs (e) and (f) of subdivision 2 of section 480 of the tax 23 law, as amended by chapter 744 of the laws of 1990, are amended and a 24 new paragraph (g) is added to read as follows: 25 (e) [Any] SUCH APPLICANT OR ANY controlling person [of such applicant] 26 has committed any of the acts specified in subdivision three of this 27 section within the preceding five years, [or] 28 (f) Such applicant or any controlling person has been finally deter- 29 mined to have violated any of the provisions of this article or article 30 twenty-A of this chapter, or any rule or regulation adopted pursuant to 31 this article or article twenty-A of this chapter[.], OR 32 (G) AFTER CAREFULLY EVALUATING THE CHARACTER, FITNESS, EXPERIENCE, 33 MATURITY AND FINANCIAL RESPONSIBILITY OF THE APPLICANT OR ANY CONTROL- 34 LING PERSON, THE COMMISSIONER DETERMINES THAT THE PUBLIC CONVENIENCE AND 35 ADVANTAGE WOULD NOT BE SERVED BY APPROVAL OF THE APPLICATION. 36 S 5. Subparagraphs (ii), (iii) and (iv) of paragraph (b) of subdivi- 37 sion 3 of section 480 of the tax law, subparagraphs (ii) and (iii) as 38 added by chapter 860 of the laws of 1987 and subparagraph (iv) as 39 amended by chapter 61 of the laws of 1989, are amended and two new 40 subparagraphs (v) and (vi) are added to read as follows: 41 (ii) Has been convicted in a court of competent jurisdiction, either 42 within or without the state, of a [felony] CRIME, bearing on the 43 licensee's duties and obligations under this chapter, 44 (iii) Has impersonated any person represented to be a wholesale dealer 45 under this article but not in fact licensed under this section, [or] 46 (iv) Has knowingly aided and abetted the sale of cigarettes or tobacco 47 products by a person which such licensee or controlling person knows (A) 48 has not been licensed by the commissioner [of taxation and finance] and 49 (B) is a wholesale dealer pursuant to the terms of subdivision eight of 50 section four hundred seventy of this [chapter.] ARTICLE, 51 (V) HAS BEEN CONVICTED IN A COURT OF COMPETENT JURISDICTION, EITHER 52 WITHIN OR WITHOUT THE STATE, OF A CRIME INVOLVING MORAL TURPITUDE, OR 53 (VI) HAS ENGAGED IN CONDUCT WHICH BEARS ON THE LICENSEE'S OR CONTROL- 54 LING PERSON'S CHARACTER, FITNESS, EXPERIENCE, MATURITY OR FINANCIAL 55 RESPONSIBILITY AND WOULD HAVE ALLOWED THE COMMISSIONER TO REFUSE TO 56 ISSUE A LICENSE TO SUCH LICENSEE. S. 60--A 88 A. 160--A 1 S 6. Paragraphs (a) and (b) of subdivision 4 of section 480-a of the 2 tax law, as added by chapter 629 of the laws of 1996, are amended to 3 read as follows: 4 (a) If a retail dealer possesses or sells unstamped or unlawfully 5 stamped packages of cigarettes, or if a retail dealer is also licensed 6 as an agent pursuant to section four hundred seventy-two OF THIS ARTICLE 7 and it possesses unlawfully stamped packages of cigarettes or sells 8 unstamped or unlawfully stamped packages of cigarettes at retail, OR IF 9 A RETAIL DEALER POSSESSES OR SELLS TOBACCO PRODUCTS WITH RESPECT TO 10 WHICH THE TOBACCO PRODUCTS TAX HAS NOT BEEN PAID OR ASSUMED BY A 11 DISTRIBUTOR OR A TOBACCO PRODUCTS DEALER, (i) its registration shall be 12 suspended for a period of not more than six months, or (ii) for a second 13 such possession or sale within a period of five years, its registration 14 shall be suspended for a period of up to thirty-six months, or (iii) for 15 a third such possession or sale within a period of five years, its 16 registration may be revoked for a period of up to five years. A retail 17 dealer registration shall be suspended or revoked pursuant to this 18 subdivision immediately upon such dealer's receipt of written notice of 19 suspension or revocation from the commissioner. If a retail dealer sells 20 cigarettes OR TOBACCO PRODUCTS through more than one place of business 21 in this state, the retail dealer registration shall not be suspended or 22 revoked pursuant to this subdivision, but the certificate of registra- 23 tion issued to the place of business, cart, stand, truck or other 24 merchandising device where unstamped or unlawfully stamped cigarettes OR 25 TOBACCO PRODUCTS WITH RESPECT TO WHICH THE TOBACCO PRODUCTS TAX HAS NOT 26 BEEN PAID OR ASSUMED BY A DISTRIBUTOR OR A TOBACCO PRODUCTS DEALER were 27 found shall be suspended or cancelled for possession or sale of 28 unstamped or unlawfully stamped packages of cigarettes OR SUCH TOBACCO 29 PRODUCTS, as if such certificate of registration were a retail dealer 30 registration. A suspension or cancellation of a certificate of registra- 31 tion shall be treated as if it were a suspension or revocation of a 32 registration. If unstamped or unlawfully stamped cigarettes OR SUCH 33 TOBACCO PRODUCTS are found in a retail dealer's warehouse, the suspen- 34 sion or revocation of the retail dealer's registration pursuant to this 35 subdivision shall be applicable to each retail place of business in this 36 state through which such retail dealer sells cigarettes OR TOBACCO 37 PRODUCTS. 38 (b) A retail dealer who is notified of a suspension or revocation of 39 its registration pursuant to this subdivision shall have the right to 40 have the suspension or revocation reviewed by the commissioner or his OR 41 HER designee by contacting the department at a telephone number or an 42 address to be disclosed in the notice of suspension or revocation within 43 ten days of such dealer's receipt of such notification. The retail deal- 44 er may present written evidence or argument in support of its defense to 45 the suspension or revocation, or may appear at a scheduled conference 46 with the commissioner or his OR HER designee to present oral arguments 47 and written and oral evidence in support of such defense. The commis- 48 sioner or his OR HER designee is authorized to delay the effective date 49 of the suspension or revocation to enable the retail dealer to present 50 further evidence or arguments in connection with the suspension or revo- 51 cation. The commissioner or his OR HER designee shall cancel the suspen- 52 sion or revocation of registration if the commissioner or his OR HER 53 designee is not satisfied by a preponderance of the evidence that the 54 retail dealer possessed or sold unstamped or unlawfully stamped packages 55 of cigarettes OR TOBACCO PRODUCTS WITH RESPECT TO WHICH THE TOBACCO S. 60--A 89 A. 160--A 1 PRODUCTS TAX HAD NOT BEEN PAID OR ASSUMED BY A DISTRIBUTOR OR A TOBACCO 2 PRODUCTS DEALER. 3 S 7. Paragraph (b) of subdivision 1 of section 481 of the tax law, as 4 amended by chapter 262 of the laws of 2000, subparagraph (i) and clause 5 (A) of subparagraph (ii) as amended by chapter 604 of the laws of 2008, 6 is amended and a new paragraph (e) is added to read as follows: 7 (b) (i) In addition to any other penalty imposed by this article, the 8 commissioner may (A) impose a penalty of not more than one hundred fifty 9 dollars for each two hundred cigarettes, or fraction thereof, in excess 10 of one thousand cigarettes in unstamped or unlawfully stamped packages 11 in the possession or under the control of any person or (B) impose a 12 penalty of not more than two hundred dollars for each ten unaffixed 13 false, altered or counterfeit cigarette tax stamps, imprints or 14 impressions, or fraction thereof, in the possession or under the control 15 of any person. In addition, the commissioner may impose a penalty of not 16 more than seventy-five dollars for each fifty cigars or one pound of 17 [tobacco] SNUFF, or fraction thereof, in excess of two hundred fifty 18 cigars or five pounds of [tobacco] SNUFF in the possession or under the 19 control of any person and a penalty of not more than one hundred fifty 20 dollars for each fifty cigars or pound of [tobacco] SNUFF, or fraction 21 thereof, in excess of five hundred cigars or ten pounds of [tobacco] 22 SNUFF in the possession or under the control of any person, with respect 23 to which the tobacco products tax has not been paid or assumed by a 24 distributor or tobacco products dealer; provided, however, that any such 25 penalty imposed shall not exceed seven thousand five hundred dollars in 26 the aggregate. The commissioner may impose a penalty of not more than 27 seventy-five dollars for each fifty cigars or one pound of [tobacco] 28 SNUFF, or fraction thereof, in excess of fifty cigars or one pound of 29 [tobacco] SNUFF in the possession or under the control of any tobacco 30 products dealer or distributor appointed by the commissioner, and a 31 penalty of not more than one hundred fifty dollars for each fifty cigars 32 or pound of [tobacco] SNUFF, or fraction thereof, in excess of two 33 hundred fifty cigars or five pounds of [tobacco] SNUFF in the possession 34 or under the control of any such dealer or distributor, with respect to 35 which the tobacco products tax has not been paid or assumed by a 36 distributor or a tobacco products dealer; provided, however, that any 37 such penalty imposed shall not exceed fifteen thousand dollars in the 38 aggregate. 39 (ii) The penalties imposed by this subparagraph may be imposed by the 40 commissioner in addition to any other penalty imposed by this article, 41 but in lieu of the penalties imposed by subparagraph (i) of this para- 42 graph: 43 (A) (I) (1) not less than thirty dollars but not more than two hundred 44 dollars for each two hundred cigarettes, or fraction thereof, in excess 45 of one thousand cigarettes but less than or equal to five thousand ciga- 46 rettes in unstamped or unlawfully stamped packages knowingly in the 47 possession or knowingly under the control of any person or (2) not less 48 than thirty dollars but not more than two hundred dollars for each ten 49 unaffixed false, altered or counterfeit cigarette tax stamps, imprints 50 or impressions, or fraction thereof, less than or equal to two hundred 51 fifty unaffixed false, altered or counterfeit cigarette tax stamps, 52 imprints or impressions, knowingly in the possession or [knowing] KNOW- 53 INGLY under the control of any person; 54 (II) (1) not less than seventy-five dollars but not more than two 55 hundred dollars for each two hundred cigarettes, or fraction thereof, in 56 excess of five thousand cigarettes but less than or equal to twenty S. 60--A 90 A. 160--A 1 thousand cigarettes in unstamped or unlawfully stamped packages knowing- 2 ly in the possession or knowingly under the control of any person or (2) 3 not less than seventy-five dollars but not more than two hundred dollars 4 for each ten unaffixed false, altered or counterfeit cigarette tax 5 stamps, imprints or impressions, or fraction thereof, in excess of two 6 hundred fifty unaffixed false, altered or counterfeit cigarette tax 7 stamps, imprints or impressions but less than or equal to one thousand 8 unaffixed false, altered or counterfeit cigarette tax stamps, imprints 9 or impressions, knowingly in the possession or knowingly under the 10 control of any person; and 11 (III) (1) not less than one hundred dollars but not more than two 12 hundred dollars for each two hundred cigarettes, or fraction thereof, in 13 excess of twenty thousand cigarettes in unstamped or unlawfully stamped 14 packages, knowingly in the possession or knowingly under the control of 15 any person or (2) not less than one hundred dollars but not more than 16 two hundred dollars for each ten unaffixed false, altered or counterfeit 17 cigarette tax stamps, imprints or impressions, or fraction thereof, in 18 excess of one thousand unaffixed false, altered or counterfeit cigarette 19 tax stamps, imprints or impressions, knowingly in the possession or 20 knowingly under the control of any person. 21 (B)(I) not less than twenty-five dollars but not more than one hundred 22 dollars for each fifty cigars or one pound of [tobacco] SNUFF, or frac- 23 tion thereof, in excess of two hundred fifty cigars or five pounds of 24 [tobacco] SNUFF knowingly in the possession or knowingly under the 25 control of any person, with respect to which the tobacco products tax 26 has not been paid or assumed by a distributor or tobacco products deal- 27 er; and 28 (II) not less than fifty dollars but not more than two hundred dollars 29 for each fifty cigars or pound of [tobacco] SNUFF, or fraction thereof, 30 in excess of five hundred cigars or ten pounds of [tobacco] SNUFF know- 31 ingly in the possession or knowingly under the control of any person, 32 with respect to which the tobacco products tax has not been paid or 33 assumed by a distributor or tobacco products dealer; provided, however, 34 that any such penalty imposed under this clause shall not exceed ten 35 thousand dollars in the aggregate. 36 (C) (I) not less than twenty-five dollars but not more than one 37 hundred dollars for each fifty cigars or one pound of [tobacco] SNUFF, 38 or fraction thereof, in excess of fifty cigars or one pound of [tobacco] 39 SNUFF knowingly in the possession or knowingly under the control of any 40 person, with respect to which the tobacco products tax has not been paid 41 or assumed by a distributor or tobacco products dealer; and 42 (II) not less than fifty dollars but not more than two hundred dollars 43 for each fifty cigars or pound of [tobacco] SNUFF, or fraction thereof, 44 in excess of two hundred fifty cigars or five pounds of [tobacco] SNUFF 45 knowingly in the possession or knowingly under the control of any 46 person, with respect to which the tobacco products tax has not been paid 47 or assumed by a distributor or a tobacco products dealer; provided, 48 however, that any such penalty imposed under this clause shall not 49 exceed twenty thousand dollars in the aggregate. 50 (iii) IN ADDITION TO ANY OTHER PENALTY IMPOSED BY LAW, THE COMMISSION- 51 ER MAY IMPOSE A PENALTY OF TWO HUNDRED PERCENT OF THE AMOUNT OF THE TAX 52 FOR EACH POUND OF TOBACCO, OTHER THAN CIGARS AND SNUFF, IN THE 53 POSSESSION OR UNDER THE CONTROL OF ANY PERSON, WITH RESPECT TO WHICH THE 54 TOBACCO PRODUCTS TAX HAS NOT BEEN PAID OR ASSUMED BY A DISTRIBUTOR OR 55 TOBACCO PRODUCTS DEALER. PROVIDED, HOWEVER, THE PENALTY IMPOSED UNDER S. 60--A 91 A. 160--A 1 THIS SUBPARAGRAPH SHALL ONLY APPLY IF THE AMOUNT OF TOBACCO, OTHER THAN 2 CIGARS AND SNUFF, EQUALS OR EXCEEDS FIVE POUNDS. 3 (IV) Any penalty provided for in this paragraph shall be determined as 4 provided in section four hundred seventy-eight of this [chapter] 5 ARTICLE, and may be reviewed only pursuant to such section. Such penalty 6 shall be collected in the same manner as the taxes imposed by this arti- 7 cle. The commissioner in [the commissioner's] HIS OR HER discretion, may 8 remit all or part of such penalty. Such penalty shall be paid to the 9 department and disposed of as hereinafter provided with respect to 10 moneys derived from the tax. 11 (E) IN ADDITION TO ANY OTHER PENALTIES THAT MAY BE IMPOSED BY LAW, ANY 12 OR ALL OF THE FOLLOWING PENALTIES MAY BE IMPOSED: 13 (I) ANY PERSON WHO FAILS TO FILE AN INFORMATIONAL RETURN UNDER THIS 14 ARTICLE ON OR BEFORE THE PRESCRIBED DATE MUST PAY A PENALTY OF FIFTEEN 15 HUNDRED DOLLARS FOR THE FIRST VIOLATION AND A PENALTY OF THREE THOUSAND 16 DOLLARS FOR EACH SUBSEQUENT VIOLATION, UNLESS IT CAN BE SHOWN THAT THIS 17 FAILURE IS DUE TO REASONABLE CAUSE AND NOT WILLFUL NEGLECT. 18 (II) ANY PERSON WHO FAILS TO FILE AN INFORMATIONAL RETURN WITHIN SIXTY 19 DAYS OF THE DATE PRESCRIBED FOR FILING MUST PAY A PENALTY OF TWO THOU- 20 SAND DOLLARS FOR THE FIRST VIOLATION AND A PENALTY OF FOUR THOUSAND 21 DOLLARS FOR EACH SUBSEQUENT VIOLATION, UNLESS IT CAN BE SHOWN THAT THIS 22 FAILURE IS DUE TO REASONABLE CAUSE AND NOT WILLFUL NEGLECT. 23 (III) ANY PERSON WHO FAILS TO FILE A COMPLETE INFORMATIONAL RETURN 24 MUST PAY A PENALTY OF FIFTEEN HUNDRED DOLLARS FOR THE FIRST VIOLATION 25 AND A PENALTY OF THREE THOUSAND DOLLARS FOR EACH SUBSEQUENT VIOLATION, 26 UNLESS IT CAN BE SHOWN THAT THIS FAILURE IS DUE TO REASONABLE CAUSE AND 27 NOT WILLFUL NEGLECT. 28 (IV) IN ADDITION TO ANY CRIMINAL PENALTY PROVIDED BY LAW, IF ANY 29 PERSON MAKES A STATEMENT ON AN INFORMATIONAL RETURN AND, AS OF THE TIME 30 OF THE STATEMENT, THERE WAS NO REASONABLE BASIS FOR SUCH STATEMENT, THAT 31 PERSON MUST PAY A PENALTY OF TWO THOUSAND DOLLARS FOR THE FIRST 32 VIOLATION AND A PENALTY OF FOUR THOUSAND DOLLARS FOR EACH SUBSEQUENT 33 VIOLATION. 34 S 8. Section 481 of the tax law is amended by adding a new subdivision 35 2-a to read as follows: 36 2-A. ANY OFFICER, DIRECTOR, SHAREHOLDER OR EMPLOYEE OF A CORPORATION 37 OR OF A DISSOLVED CORPORATION, ANY EMPLOYEE OF A PARTNERSHIP OR ANY 38 EMPLOYEE OF AN INDIVIDUAL PROPRIETORSHIP, WHO AS AN OFFICER, DIRECTOR, 39 SHAREHOLDER OR EMPLOYEE IS UNDER A DUTY TO ACT FOR SUCH CORPORATION, 40 PARTNERSHIP OR PROPRIETORSHIP IN COMPLYING WITH ANY REQUIREMENT OF THIS 41 ARTICLE, AND ANY PARTNER OF A PARTNERSHIP, THAT FAILS TO PAY THE TAXES 42 IMPOSED BY OR PURSUANT TO THIS ARTICLE, WILL, IN ADDITION TO OTHER 43 PENALTIES PROVIDED BY LAW, BE LIABLE FOR A PENALTY EQUAL TO THE TOTAL 44 AMOUNT OF THE TAX NOT PAID, PLUS PENALTIES AND INTEREST COMPUTED PURSU- 45 ANT TO THIS SECTION. IF THE COMMISSIONER DETERMINES THAT THIS FAILURE 46 WAS DUE TO REASONABLE CAUSE AND NOT DUE TO WILLFUL NEGLECT, IT MAY WAIVE 47 ALL OR PART OF THE PENALTY IMPOSED UNDER THIS SUBDIVISION. THAT PENALTY 48 WILL BE DETERMINED, ASSESSED, COLLECTED AND PAID IN THE SAME MANNER AS 49 THE TAXES IMPOSED BY THIS ARTICLE AND WILL BE DISPOSED OF AS HEREINAFTER 50 PROVIDED WITH RESPECT TO MONEYS DERIVED FROM THE TAX. 51 S 9. Subdivision 1 of section 11-1301 of the administrative code of 52 the city of New York, is amended by section 3 of part MM-1 of chapter 57 53 of the laws of 2008, is amended to read as follows: 54 1. "Cigarette." (a) Any roll for smoking made wholly or in part of 55 tobacco or any other substance wrapped in paper or in any other 56 substance not containing tobacco, and (b) any roll for smoking made S. 60--A 92 A. 160--A 1 wholly or in part of tobacco wrapped in any substance containing tobacco 2 which, because of its appearance, the type of tobacco used in the 3 filler, or its packaging and labeling, is likely to be offered to, or 4 purchased by, consumers as a cigarette described in paragraph (a) of 5 this subdivision. [However, a roll will not be considered to be a ciga- 6 rette for purposes of paragraph (b) of this subdivision if it is not 7 treated as a cigarette for federal excise tax purposes under the appli- 8 cable federal statute in effect on April first, two thousand eight.] 9 S 10. Subdivision b of section 20-201 of the administrative code of 10 the city of New York, as amended by section 4 of part MM-1 of chapter 57 11 of the laws of 2008, is amended to read as follows: 12 b. "Cigarette" shall mean (1) any roll for smoking made wholly or in 13 part of tobacco or any other substance wrapped in paper or in any other 14 substance not containing tobacco, and (2) any roll for smoking made 15 wholly or in part of tobacco wrapped in any substance containing tobacco 16 that, because of its appearance, the type of tobacco used in the filler, 17 or its packaging and labeling, is likely to be offered to, or purchased 18 by, consumers as a cigarette described in paragraph one of this subdivi- 19 sion. [However, a roll will not be considered to be a cigarette for 20 purposes of paragraph two of this subdivision if it is not treated as a 21 cigarette for federal excise tax purposes under the applicable federal 22 statute in effect on April first, two thousand eight.] 23 S 11. Subdivision 2 of section 1 of chapter 235 of the laws of 1952 24 relating to enabling any city of the state having a population of one 25 million or more to adopt, and amend local laws, imposing certain speci- 26 fied types of taxes on cigarettes which the legislature has or would 27 have power and authority to impose, to provide for the review of such 28 taxes, and to limit the application of such local laws, as amended by 29 section 5 of part MM-1 of chapter 57 of the laws of 2008, is amended to 30 read as follows: 31 (2) As used herein, the term "cigarette" shall mean and include (a) 32 any roll for smoking made wholly or in part of tobacco or of any other 33 substance wrapped in paper or in any other substance not containing 34 tobacco, and (b) any roll for smoking made wholly or in part of tobacco 35 wrapped in any substance containing tobacco that, because of its appear- 36 ance, the type of tobacco used in the filler, or its packaging and 37 labeling, is likely to be offered to, or purchased by, consumers as a 38 cigarette described in paragraph (a) of this subdivision. [However, a 39 roll will not be considered to be a cigarette for purposes of paragraph 40 (b) of this subdivision if it is not treated as a cigarette for federal 41 excise tax purposes under the applicable federal statute in effect on 42 April first, two thousand eight.] The term "cigar" does not include any 43 cigarette as defined in this subdivision. 44 S 12. This act shall take effect immediately; provided however that 45 section one of this act shall take effect April 1, 2009; provided, 46 further, that any tobacco product manufacturer required to file a 47 certification between April 16 and April 30, 2008, under subdivision 1 48 of section 480-b of the tax law, with respect to cigarettes that are 49 first being defined as cigarettes as a result of the amendments made by 50 this act, must file that certification no later than 60 days after the 51 date this act becomes a law; and provided further that sections two, 52 three and four of this act shall take effect April 1, 2009, and shall 53 apply to cigars that first become subject to taxation under article 20 54 of the tax law on or after that date; and provided further that sections 55 five, six, seven and eight of this act shall take effect on the first S. 60--A 93 A. 160--A 1 day of the first month next occurring 90 days after this act becomes a 2 law and shall apply to sales made on or after such date. 3 PART S 4 Section 1. Paragraph 3 of subdivision (b) of section 1101 of the tax 5 law, as amended by section 21 of part Y of chapter 63 of the laws of 6 2000, is amended to read as follows: 7 (3) Receipt. The amount of the sale price of any property and the 8 charge for any service taxable under this article, including gas and gas 9 service and electricity and electric service of whatever nature, valued 10 in money, whether received in money or otherwise AND WHETHER RECEIVED 11 FROM THE PURCHASER OR A THIRD PARTY, including any amount for which 12 credit is allowed by the vendor to the purchaser, without any deduction 13 for expenses [or], early payment discounts [and] OR ANY DISCOUNT GIVEN 14 FOR A COUPON. RECEIPT also [including] INCLUDES any charges by the 15 vendor to the purchaser for shipping or delivery, and, with respect to 16 gas and gas service and electricity and electric service, any charges by 17 the vendor for transportation, transmission or distribution, regardless 18 of whether such charges are separately stated in the written contract, 19 if any, or on the bill rendered to such purchaser and regardless of 20 whether such shipping or delivery or transportation, transmission, or 21 distribution is provided by such vendor or a third party, but [exclud- 22 ing] EXCLUDES any credit for tangible personal property accepted in part 23 payment and intended for resale. For special rules governing computation 24 of receipts, see section eleven hundred eleven OF THIS ARTICLE. 25 S 2. Subdivision (b) of section 1101 of the tax law is amended by 26 adding a new paragraph 33 to read as follows: 27 (33) COUPON. (A) AN INSTRUMENT PROVIDED BY A VENDOR OR A THIRD PARTY, 28 THAT IS PRESENTED AND SURRENDERED BY A PURCHASER TO THE VENDOR IN ORDER 29 TO RECEIVE A REDUCTION IN THE SALE PRICE, WHETHER OR NOT ANY PORTION OF 30 THE PRICE REDUCTION IS PAID TO THE VENDOR BY A THIRD PARTY. 31 (B) FOR PURPOSES OF THE TAX IMPOSED BY SECTION ELEVEN HUNDRED TEN AND 32 FOR PURPOSES OF SECTION ELEVEN HUNDRED ELEVEN OF THIS ARTICLE, THE TERM 33 "CONSIDERATION" INCLUDES ANY DISCOUNT GIVEN FOR A COUPON. 34 S 3. This act shall take effect on June 1, 2009 and shall apply to 35 sales or uses occurring on or after that date in accordance with the 36 applicable transitional provisions in sections 1106 and 1217 of the tax 37 law. 38 PART T 39 Section 1. The closing paragraph of subdivision 1 of section 98-a of 40 the state finance law, as amended by section 13 of part Y of chapter 61 41 of the laws of 2005, is amended to read as follows: 42 Provided, however, that income received from the investment of moneys 43 of the local assistance account, the state purposes account and the 44 capital projects fund may be credited in whole or in part to one or more 45 of such funds to the extent necessary to reimburse first instance appro- 46 priations for interest on temporary obligations issued on behalf of the 47 fund or funds to be credited. Notwithstanding any other provision of 48 this section or of any other general or special law, all moneys avail- 49 able and retained on deposit for the payment of lottery prizes may be 50 invested OR CAUSED TO BE INVESTED, BY THE COMPTROLLER, OR BY THE DIVI- 51 SION OF THE LOTTERY IF THE COMPTROLLER HAS AUTHORIZED THE DIVISION OF 52 THE LOTTERY TO DIRECTLY INVEST SUCH FUNDS, in obligations [by the comp- S. 60--A 94 A. 160--A 1 troller] as herein provided[, except that] OR IN THE SAME MANNER AND IN 2 SUCH SECURITIES OR OTHER INVESTMENTS AS THE TRUSTEE OR TRUSTEES OF A 3 PUBLIC PENSION FUND ARE AUTHORIZED TO INVEST PURSUANT TO ARTICLE FOUR-A 4 OF THE RETIREMENT AND SOCIAL SECURITY LAW, AND PROVIDED FURTHER THAT 5 such obligations need not mature or be redeemable at the option of the 6 holder within seven years of the date of such investment. Income 7 received from such investments may be used for the payment of prizes 8 awarded and made payable in more than one payment, including prizes 9 awarded and made payable throughout the lifetime of the lottery prize 10 winner. 11 S 2. This act shall take effect immediately. 12 PART U 13 Section 1. Paragraph 30 of subdivision (a) of section 1115 of the tax 14 law, as amended by section 84 of part A of chapter 56 of the laws of 15 1998, is amended to read as follows: 16 (30) [Clothing] DURING THE SEVEN-DAY PERIODS EACH YEAR BEGINNING THE 17 MONDAY IMMEDIATELY PRECEDING THE FIRST SUNDAY OF FEBRUARY AND ENDING 18 SUCH SUNDAY, AND BEGINNING AUGUST TWENTY-FIFTH AND ENDING AUGUST THIR- 19 TY-FIRST, CLOTHING and footwear for which the receipt or consideration 20 given or contracted to be given is less than [one] FIVE hundred [ten] 21 dollars per article of clothing, per pair of shoes or other articles of 22 footwear or per item used or consumed to make or repair such clothing 23 and which becomes a physical component part of such clothing. 24 S 2. Subdivision (g) of section 1109 of the tax law is amended by 25 adding a new paragraph 9 to read as follows: 26 (9) NOTWITHSTANDING THAT THE SALES AND COMPENSATING USE TAXES IMPOSED 27 BY A CITY OF ONE MILLION OR MORE LOCATED IN THE METROPOLITAN COMMUTER 28 TRANSPORTATION DISTRICT EXEMPT CLOTHING AND FOOTWEAR PURSUANT TO THE 29 AUTHORITY OF CLAUSE (VII) OF PARAGRAPH FOUR OF SUBDIVISION (A) OF 30 SECTION TWELVE HUNDRED TEN OF THIS ARTICLE, DURING THE TWO SEVEN-DAY 31 PERIODS DURING WHICH CLOTHING AND FOOTWEAR ARE EXEMPT FROM THE TAXES 32 IMPOSED BY THIS ARTICLE, SUCH CITY SHALL, FOR PURPOSES OF THIS SUBDIVI- 33 SION, BE DEEMED TO HAVE EXEMPTED SUCH CLOTHING AND FOOTWEAR PURSUANT TO 34 THE AUTHORITY OF PARAGRAPH ONE OF SUBDIVISION (A) OF SECTION TWELVE 35 HUNDRED TEN OF THIS CHAPTER AND SUCH CITY AND THE STATE SHALL BE SUBJECT 36 TO THE REIMBURSEMENT AND OTHER PROVISIONS OF THIS SUBDIVISION. 37 S 3. Paragraph 1 of subdivision (a) of section 1210 of the tax law, as 38 amended by chapter 306 of the laws of 2005, subparagraph (i) of para- 39 graph 1 as amended by section 4 of part SS1 of chapter 57 of the laws of 40 2008 and subparagraph (ii) of paragraph 1 as amended by chapter 144 of 41 the laws of 2006, is amended to read as follows: 42 (1) [(i)] Either, all of the taxes described in article twenty-eight 43 of this chapter, at the same uniform rate, as to which taxes all 44 provisions of the local laws, ordinances or resolutions imposing such 45 taxes shall be identical, except as to rate and except as otherwise 46 provided, with the corresponding provisions in such article twenty- 47 eight, including the definition and exemption provisions of such arti- 48 cle, so far as the provisions of such article twenty-eight can be made 49 applicable to the taxes imposed by such city or county and with such 50 limitations and special provisions as are set forth in this article. The 51 taxes authorized under this subdivision may not be imposed by a city or 52 county unless the local law, ordinance or resolution imposes such taxes 53 so as to include all portions and all types of receipts, charges or S. 60--A 95 A. 160--A 1 rents, subject to state tax under sections eleven hundred five and elev- 2 en hundred ten of this chapter, except as otherwise provided. 3 (I) Any local law, ordinance or resolution enacted by any city of less 4 than one million or by any county or school district, imposing the taxes 5 authorized by this subdivision, shall, notwithstanding any provision of 6 law to the contrary, exclude from the operation of such local taxes all 7 sales of tangible personal property for use or consumption directly and 8 predominantly in the production of tangible personal property, gas, 9 electricity, refrigeration or steam, for sale, by manufacturing, proc- 10 essing, generating, assembly, refining, mining or extracting; and all 11 sales of tangible personal property for use or consumption predominantly 12 either in the production of tangible personal property, for sale, by 13 farming or in a commercial horse boarding operation, or in both; and, 14 unless such city, county or school district elects otherwise, shall omit 15 the provision for credit or refund contained in clause six of subdivi- 16 sion (a) of section eleven hundred nineteen of this chapter. 17 (II) Any local law, ordinance or resolution enacted by any city, coun- 18 ty or school district, imposing the taxes authorized by this subdivi- 19 sion, shall omit the residential solar energy systems equipment 20 exemption provided for in subdivision (ee), the clothing and footwear 21 exemption provided for in paragraph thirty of subdivision (a) and the 22 qualified empire zone enterprise exemptions provided for in subdivision 23 (z) of section eleven hundred fifteen of this chapter, unless such city, 24 county or school district elects otherwise as to either such residential 25 solar energy systems equipment exemption or such clothing and footwear 26 exemption or such qualified empire zone enterprise exemptions[; provided 27 that if such a city having a population of one million or more in which 28 the taxes imposed by section eleven hundred seven of this chapter are in 29 effect enacts the resolution described in subdivision (k) of this 30 section or repeals such resolution or enacts the resolution described in 31 subdivision (l) of this section or repeals such resolution or enacts the 32 resolution described in subdivision (n) of this section or repeals such 33 resolution, such resolution or repeal shall also be deemed to amend any 34 local law, ordinance or resolution enacted by such a city imposing such 35 taxes pursuant to the authority of this subdivision, whether or not such 36 taxes are suspended at the time such city enacts its resolution pursuant 37 to subdivision (k), (l) or (n) of this section or at the time of any 38 such repeal; provided, further, that any such local law, ordinance or 39 resolution and section eleven hundred seven of this chapter, as deemed 40 to be amended in the event a city of one million or more enacts a resol- 41 ution pursuant to the authority of subdivision (k), (l) or (n) of this 42 section, shall be further amended, as provided in section twelve hundred 43 eighteen of this subpart, so that the residential solar energy systems 44 equipment exemption or the clothing and footwear exemption or the quali- 45 fied empire zone enterprise exemptions in any such local law, ordinance 46 or resolution or in such section eleven hundred seven are the same, as 47 the case may be, as the residential solar energy systems equipment 48 exemption provided for in subdivision (ee), the clothing and footwear 49 exemption in paragraph thirty of subdivision (a) or the qualified empire 50 zone enterprise exemptions in subdivision (z) of section eleven hundred 51 fifteen of this chapter. 52 (ii) Notwithstanding any other provision of the law to the contrary, 53 any county, imposing the taxes authorized by this subdivision, having a 54 population of not less than one hundred thirty-nine thousand and not 55 more than one hundred forty thousand, determined in accordance with the 56 two thousand decennial federal census, may by local law, ordinance or S. 60--A 96 A. 160--A 1 resolution elect to exempt from such local sales and compensating use 2 taxes clothing and footwear, as defined in paragraph fifteen of subdivi- 3 sion (b) of section eleven hundred one of this chapter, for which the 4 receipt or consideration given or contracted to be given is less than 5 one hundred ten dollars per article of clothing, per pair of shoes or 6 other articles of footwear or per item used or consumed to make or 7 repair such clothing and which becomes a physical component part of such 8 clothing. Every such county shall comply with the provisions of subdivi- 9 sions (d) and (e) of this section, including such provisions applicable 10 to providing or repealing the exemption described in paragraph thirty of 11 subdivision (a) of section eleven hundred fifteen of this chapter.] 12 S 4. Subdivision (k) of section 1210 of the tax law is REPEALED. 13 S 5. Notwithstanding any provision of state or local law, ordinance or 14 resolution to the contrary: (a) Every local law, ordinance or resolution 15 or part of it providing for an exemption of clothing and footwear 16 described in paragraph 30 of subdivision (a) of section 1115 of the tax 17 law elected by a county or city (other than a city of one million or 18 more) pursuant to the authority of article 29 of the tax law that is in 19 effect on the day before this act shall have become a law or was elected 20 prior to such date to take effect at a later date is REPEALED. 21 (b) A county or city (other than a city of one million or more) that 22 imposes sales and compensating use taxes pursuant to the authority of 23 paragraph 1 of subdivision (a) of section 1210 of the tax law, acting 24 through its local legislative body, is authorized to adopt a resolution 25 to take effect August 1, 2009, to elect the exemption for clothing and 26 footwear described in paragraph 30 of subdivision (a) of section 1115 of 27 the tax law, as amended by section one of this act. For the resolution 28 to be effective, the county or city must: (i) adopt the resolution in 29 exactly the form prepared by the commissioner of taxation and finance, 30 on or before July 1, 2009; and (ii) mail a certified copy of it by that 31 date to the commissioner of taxation and finance otherwise in accordance 32 with the provisions of subdivision (d) of section 1210 of the tax law; 33 and (iii) the county or city must also comply with the provisions of 34 subdivision (e) of such section 1210. Such resolution shall, if properly 35 adopted pursuant to this section, be deemed to amend the county's or 36 city's local law, ordinance or resolution imposing its sales and use 37 taxes to provide this exemption. 38 S 6. This act shall take effect June 1, 2009, and shall apply in 39 accordance with applicable transitional provisions in sections 1106 and 40 1217 of the tax law, provided that a county or city that imposes sales 41 and compensating use taxes pursuant to the authority of subdivision (a) 42 of section 1210 of the tax law (other than a city of one million or 43 more) shall be authorized to adopt a resolution described in section 44 five of this act on or after the date this act becomes a law. 45 PART V 46 Section 1. Subdivision (c) of section 1105 of the tax law is amended 47 by adding two new paragraphs 10 and 11 to read as follows: 48 (10) BEAUTY, BARBERING, HAIR RESTORING, MANICURING, PEDICURING, ELEC- 49 TROLYSIS, MASSAGE SERVICES AND SIMILAR SERVICES, AND EVERY SERVICE SOLD 50 BY WEIGHT CONTROL SALONS, HEALTH SALONS, GYMNASIUMS, TURKISH AND SAUNA 51 BATH AND SIMILAR ESTABLISHMENTS AND EVERY CHARGE FOR THE USE OF THOSE 52 FACILITIES, WHETHER OR NOT ANY TANGIBLE PERSONAL PROPERTY IS TRANSFERRED 53 IN CONJUNCTION THEREWITH; BUT EXCLUDING SERVICES RENDERED BY A PHYSI- 54 CIAN, OSTEOPATH, DENTIST, NURSE, PHYSIOTHERAPIST, CHIROPRACTOR, PODIA- S. 60--A 97 A. 160--A 1 TRIST, OPTOMETRIST, OPHTHALMIC DISPENSER OR A PERSON PERFORMING SIMILAR 2 SERVICES LICENSED UNDER TITLE EIGHT OF THE EDUCATION LAW, AS AMENDED, 3 AND EXCLUDING THOSE SERVICES WHEN PERFORMED ON PETS AND OTHER ANIMALS. A 4 SALE OF TANGIBLE PERSONAL PROPERTY TO A PERSON FOR USE BY THE PERSON IN 5 PERFORMING A SERVICE SUBJECT TO THE TAX IMPOSED BY THIS PARAGRAPH IS NOT 6 A PURCHASE FOR RESALE. 7 (11) CREDIT RATING AND CREDIT REPORTING SERVICES, INCLUDING, BUT NOT 8 LIMITED TO, THOSE SERVICES PROVIDED BY MERCANTILE AND CONSUMER CREDIT 9 RATING OR REPORTING BUREAUS OR AGENCIES AND CREDIT ADJUSTMENT OR 10 COLLECTION BUREAUS OR AGENCIES, WHETHER RENDERED IN WRITTEN OR ORAL FORM 11 OR IN ANY OTHER MANNER, EXCEPT TO THE EXTENT OTHERWISE TAXABLE UNDER 12 OTHER PROVISIONS OF THIS SECTION. A SALE OF TANGIBLE PERSONAL PROPERTY 13 TO A PERSON FOR USE BY THE PERSON IN PERFORMING A SERVICE SUBJECT TO THE 14 TAX IMPOSED BY THIS PARAGRAPH IS NOT A PURCHASE FOR RESALE. HOWEVER, A 15 REFUND OR CREDIT EQUAL TO THE AMOUNT OF THE SALES OR COMPENSATING USE 16 TAX IMPOSED BY SUBDIVISION (A) OF THIS SECTION OR SECTION ELEVEN HUNDRED 17 TEN OF THIS PART AND PAID ON THE SALE OR USE OF TANGIBLE PERSONAL PROP- 18 ERTY WHICH IS LATER USED BY SUCH PURCHASER IN PERFORMING A SERVICE 19 SUBJECT TO TAX UNDER THIS PARAGRAPH WILL BE ALLOWED THAT PURCHASER 20 AGAINST THE TAX IMPOSED BY THIS PARAGRAPH AND COLLECTED BY THAT PERSON 21 ON THE SALE OF THAT SERVICE IF THAT PROPERTY HAS BECOME A PHYSICAL 22 COMPONENT PART OF THE PROPERTY UPON WHICH THE SERVICE IS PERFORMED OR 23 HAS BEEN TRANSFERRED TO THE PURCHASER OF THE SERVICE IN CONJUNCTION WITH 24 THE PERFORMANCE OF THE SERVICE SUBJECT TO TAX, IN THE MANNER PRESCRIBED 25 BY SUBDIVISION (C) OF SECTION ELEVEN HUNDRED NINETEEN OF THIS ARTICLE. 26 S 2. The closing paragraph of subdivision (c) of section 1105 of the 27 tax law, as amended by chapter 190 of the laws of 1990, is amended to 28 read as follows: 29 Wages, salaries and other compensation paid by an employer to an 30 employee for performing as an employee the services described in [para- 31 graphs (1) through (9) of] this subdivision [(c)] are not receipts 32 subject to the taxes imposed [under such] BY THIS subdivision. 33 S 3. Section 1106 of the tax law is amended by adding a new subdivi- 34 sion (k) to read as follows: 35 (K) THE TAXES IMPOSED BY PARAGRAPHS TEN AND ELEVEN OF SUBDIVISION (C) 36 OF SECTION ELEVEN HUNDRED FIVE OF THIS PART MUST BE PAID WITH RESPECT TO 37 RECEIPTS FROM ALL SALES OF SERVICES ON OR AFTER THE EFFECTIVE DATE OF 38 SUCH TAXES ALTHOUGH RENDERED OR AGREED TO BE RENDERED UNDER A PRIOR 39 CONTRACT. WHERE A SERVICE IS SOLD ON A MONTHLY, QUARTERLY, YEARLY OR 40 OTHER TERM BASIS, THE CHARGE FOR THE SERVICE WILL BE SUBJECT TO THE TAX 41 IMPOSED BY THOSE PARAGRAPHS TO THE EXTENT THAT THE CHARGE IS APPLICABLE 42 TO ANY PERIOD ON OR AFTER THE DATE THE TAX BECOMES EFFECTIVE, AND THE 43 CHARGE SHALL BE APPORTIONED ON THE BASIS OF THE RATIO OF THE NUMBER OF 44 DAYS FALLING WITHIN THE PERIOD TO THE TOTAL NUMBER OF DAYS IN THE FULL 45 TERM OR PERIOD. 46 S 4. Subdivision (a) of section 1110 of the tax law, as amended by 47 section 28 of part Y of chapter 63 of the laws of 2000, is amended to 48 read as follows: 49 (a) Except to the extent that property or services have already been 50 or will be subject to the sales tax under this article, there is hereby 51 imposed on every person a use tax for the use within this state on and 52 after June first, nineteen hundred seventy-one except as otherwise 53 exempted under this article, (A) of any tangible personal property 54 purchased at retail, (B) of any tangible personal property (other than 55 computer software used by the author or other creator) manufactured, 56 processed or assembled by the user, (i) if items of the same kind of S. 60--A 98 A. 160--A 1 tangible personal property are offered for sale by him in the regular 2 course of business or (ii) if items are used as such or incorporated 3 into a structure, building or real property by a contractor, subcontrac- 4 tor or repairman in erecting structures or buildings, or building on, or 5 otherwise adding to, altering, improving, maintaining, servicing or 6 repairing real property, property or land, as the terms real property, 7 property or land are defined in the real property tax law, if items of 8 the same kind are not offered for sale as such by such contractor, 9 subcontractor or repairman or other user in the regular course of busi- 10 ness, (C) of any of the services described in paragraphs (1), (7) [and], 11 (8) AND (11) of subdivision (c) of section eleven hundred five of this 12 part, (D) of any tangible personal property, however acquired, where not 13 acquired for purposes of resale, upon which any of the services 14 described in paragraphs (2), (3) and (7) of subdivision (c) of section 15 eleven hundred five of this part have been performed, (E) of any tele- 16 phone answering service described in subdivision (b) of section eleven 17 hundred five of this part, (F) of any computer software written or 18 otherwise created by the user if the user offers software of a similar 19 kind for sale as such or as a component part of other property in the 20 regular course of business, (G) of any prepaid telephone calling 21 service, and (H) of any gas or electricity described in subdivision (b) 22 of section eleven hundred five of this part. 23 S 5. Subdivision (d) of section 1115 of the tax law, as amended by 24 chapter 190 of the laws of 1990, is amended to read as follows: 25 (d) Services otherwise taxable under paragraph (1), (2), (3), (7) 26 [or], (8) OR (11) of subdivision (c) of section eleven hundred five OF 27 THIS ARTICLE shall be exempt from tax under this article if the tangible 28 property upon which the services were performed is delivered to the 29 purchaser outside this state for use outside this state. 30 S 6. Subdivision (z) of section 1115 of the tax law is amended by 31 adding a new paragraph 4 to read as follows: 32 (4) THE EXEMPTIONS PROVIDED IN THIS SUBDIVISION SHALL NOT APPLY TO THE 33 TAX IMPOSED BY PARAGRAPH TEN OF SUBDIVISION (C) OF SECTION ELEVEN 34 HUNDRED FIVE OF THIS ARTICLE OR TO SIMILAR TAXES IMPOSED PURSUANT TO THE 35 AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER. 36 S 7. Subdivision (b) of section 1116 of the tax law is amended by 37 adding a new paragraph 8 to read as follows: 38 (8) SALES OF SERVICES DESCRIBED IN PARAGRAPH TEN OR ELEVEN OF SUBDIVI- 39 SION (C) OF SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE, UNLESS THE 40 PURCHASER IS AN EXEMPT ORGANIZATION. 41 S 8. Subdivision 4 of section 1131 of the tax law, as amended by 42 section 34 of part Y of chapter 63 of the laws of 2000, is amended to 43 read as follows: 44 (4) "Property and services the use of which is subject to tax" shall 45 include: (a) all property sold to a person within the state, whether or 46 not the sale is made within the state, the use of which property is 47 subject to tax under section eleven hundred ten of this article or will 48 become subject to tax when such property is received by or comes into 49 the possession or control of such person within the state; (b) all 50 information services, protective and detective services [and], interior 51 decorating and design services, AND CREDIT RATING AND REPORTING SERVICES 52 as such services are described in subdivision (c) of section eleven 53 hundred five of this article, rendered to a person within the state, 54 whether or not such services are rendered from or at a location within 55 the state; (c) all services rendered to a person within the state, 56 whether or not such services are performed within the state, upon tangi- S. 60--A 99 A. 160--A 1 ble personal property the use of which is subject to tax under section 2 eleven hundred ten of this article or will become subject to tax when 3 such property is received by or comes into possession or control of such 4 person within the state; (d) all property sold by a person making sales 5 described in clause (F) of subparagraph (i) of paragraph eight of subdi- 6 vision (b) of section eleven hundred one of this article to a person 7 described in such clause (F) who purchases such property at retail, 8 whether or not the sale is made within the state; (e) all telephone 9 answering service rendered to a person within the state, whether or not 10 such services are performed within the state, the use of which is 11 subject to tax under section eleven hundred ten of this article or will 12 become subject to tax when such service is received by or comes into 13 possession or control of such person within the state; (f) all prepaid 14 telephone calling services sold to a person within the state, whether or 15 not the sale is made within the state, the use of which services are 16 subject to tax under section eleven hundred ten of this article or will 17 become subject to tax when such services are received by or come into 18 the possession or control of such person within the state, and whether 19 or not such services are rendered from or at a location within the 20 state; and (g) all gas or electricity sold to a person within the state, 21 whether or not the sale is made within the state, the use of which is 22 subject to tax under section eleven hundred ten of this article or will 23 become subject to tax when it is received by or comes into the 24 possession or control of such person within the state, and whether or 25 not it is rendered from or at a location within the state. 26 S 9. Paragraphs 2 and 3 of subdivision (a) of section 1212-A of the 27 tax law, paragraph 2 as amended by chapter 190 of the laws of 1990 and 28 paragraph 3 as amended by chapter 525 of the laws of 2008, are amended 29 to read as follows: 30 (2) [a tax, at the same uniform rate, but at a rate not to exceed four 31 per centum, in multiples of one-half of one per centum, on the receipts 32 from every sale of the following services: beauty, barbering, hair 33 restoring, manicuring, pedicuring, electrolysis, massage services and 34 similar services, and every sale of services by weight control salons, 35 health salons, gymnasiums, turkish and sauna bath and similar establish- 36 ments and every charge for the use of such facilities, whether or not 37 any tangible personal property is transferred in conjunction therewith; 38 but excluding services rendered by a physician, osteopath, dentist, 39 nurse, physiotherapist, chiropractor, podiatrist, optometrist, ophthalm- 40 ic dispenser or a person performing similar services licensed under 41 title VIII of the education law, as amended, and excluding such services 42 when performed on pets and other animals. 43 (3) for a period beginning no earlier than January first, nineteen 44 hundred ninety and ending December thirty-first, two thousand eleven,] a 45 tax, at the same uniform rate, but at a rate not to exceed four per 46 centum, in multiples of one-half of one per centum, on the receipts from 47 every sale of any or all of the following services in whole or in part: 48 [credit rating, credit reporting,] credit adjustment and collection 49 services, including, but not limited to, those services provided by 50 mercantile and consumer credit rating or reporting bureaus or agencies 51 and credit adjustment or collection bureaus or agencies, whether 52 rendered in written or oral form or in any other manner, except to the 53 extent otherwise taxable under article twenty-eight of this chapter; 54 notwithstanding the foregoing, collection services shall not include 55 those services performed by a law office or a law and collection office, 56 the maintenance or conduct of which constitutes the practice of law, if S. 60--A 100 A. 160--A 1 the services are performed by an attorney at law who has been duly 2 licensed and admitted to practice law in this state. The local law 3 imposing the taxes authorized by this paragraph may provide for exclu- 4 sions and exemptions in addition to those provided for in such para- 5 graph. 6 S 10. Paragraphs 1 and 2 of subdivision (b) of section 1212-A of the 7 tax law, as amended by chapter 190 of the laws of 1990, are amended to 8 read as follows: 9 (1) All provisions set forth in article twenty-eight of this chapter 10 applicable to the taxes imposed under section eleven hundred five OF 11 THIS CHAPTER, including the definition and exemption provisions of such 12 article, shall apply in respect to a tax imposed under the authority of 13 subdivision (a) of this section, except as to rate and except as other- 14 wise provided herein. A sale of tangible personal property to a person 15 for use by [him] SUCH PERSON in performing a service subject to the tax 16 imposed under the authority of paragraph two [or three] of subdivision 17 (a) of this section shall not be deemed a purchase for resale for 18 purposes of the taxes imposed by article twenty-eight OF THIS CHAPTER or 19 pursuant to the authority of this article. 20 (2) However, with respect to a tax imposed under the authority of 21 paragraph [three] TWO of subdivision (a) of this section a refund or 22 credit equal to the amount of the sale or compensating use tax imposed 23 by section eleven hundred seven of this chapter and paid on the sale or 24 use of tangible personal property which is later used by such purchaser 25 in performing a service subject to tax under such paragraph shall be 26 allowed such purchaser against the tax imposed pursuant to such para- 27 graph and collected by such person on the sale of such service if such 28 property has become a physical component part of the property upon which 29 the service is performed or has been transferred to the purchaser of the 30 service in conjunction with the performance of the service subject to 31 tax. 32 S 11. Section 11-2002 of the administrative code of the city of New 33 York is REPEALED. 34 S 12. Subchapter 3 of chapter 20 of title 11 of the administrative 35 code of the city of New York is REPEALED. 36 S 13. This act shall take effect June 1, 2009. 37 PART W 38 Section 1. Subdivision b of section 1612 of the tax law, as amended by 39 chapter 140 of the laws of 2008, clauses (D) and (F) of subparagraph 40 (ii) and subparagraph (iii) of paragraph 1 and paragraph 2 as separately 41 amended by chapter 286 of the laws of 2008 and clause (G) of subpara- 42 graph (ii) of paragraph 1 as added and clause (H) of subparagraph (ii) 43 of paragraph 1 as amended by chapter 286 of the laws of 2008, is amended 44 to read as follows: 45 b. 1. Notwithstanding section one hundred twenty-one of the state 46 finance law, on or before the twentieth day of each month, the division 47 shall pay into the state treasury, to the credit of the state lottery 48 fund created by section ninety-two-c of the state finance law, not less 49 than forty-five percent of the total amount for which tickets have been 50 sold for games defined in paragraph four of subdivision a of this 51 section during the preceding month, not less than thirty-five percent of 52 the total amount for which tickets have been sold for games defined in 53 paragraph three of subdivision a of this section during the preceding 54 month, not less than twenty percent of the total amount for which tick- S. 60--A 101 A. 160--A 1 ets have been sold for games defined in paragraph two of subdivision a 2 of this section during the preceding month, provided however that for 3 games with a prize payout of seventy-five percent of the total amount 4 for which tickets have been sold, the division shall pay not less than 5 ten percent of sales into the state treasury and not less than twenty- 6 five percent of the total amount for which tickets have been sold for 7 games defined in paragraph one of subdivision a of this section during 8 the preceding month; and the balance of the total revenue after payout 9 for prizes for games known as "video lottery gaming," (i) less ten 10 percent of the total revenue wagered after payout for prizes to be 11 retained by the division for operation, administration, and procurement 12 purposes; (ii) less a vendor's fee the amount of which is to be paid for 13 serving as a lottery agent to the track operator of a vendor track: 14 (A) having fewer than one thousand one hundred video gaming machines, 15 at a rate of thirty-six percent for the first fifty million dollars 16 annually, twenty-nine percent for the next hundred million dollars annu- 17 ally, and twenty-six percent thereafter of the total revenue wagered at 18 the vendor track after payout for prizes pursuant to this chapter; 19 (B) having one thousand one hundred or more video gaming machines, at 20 a rate of thirty-two percent of the total revenue wagered at the vendor 21 track after payout for prizes pursuant to this chapter, except for such 22 facility located in the county of Westchester, in which case the rate 23 shall be thirty-four percent of the total revenue wagered at the vendor 24 track after payout for prizes pursuant to this chapter, for a period of 25 twenty-four months effective beginning April first, two thousand eight; 26 provided, however, that in the event that the vendor track located in 27 Westchester county completes a successful restructuring prior to March 28 thirty-first, two thousand ten, the vendor fee will be reduced to thir- 29 ty-two percent ninety days following the completion of the successful 30 restructuring. A successful restructuring is defined as a restructuring 31 of the existing debt obligations of such vendor track located in West- 32 chester county that meets the following two conditions: 33 (i) it requires no more than twenty million dollars of additional 34 equity invested in such track; and 35 (ii) results in average net interest costs of less than nine percent. 36 Notwithstanding the foregoing, the vendor fee at such track will 37 become thirty-one percent effective April first, two thousand ten and 38 remain at that level for a period equal to two times the period of time 39 (measured in days) that the vendor fee was thirty-four percent or until 40 March thirty-first, two thousand twelve, whichever is later. Notwith- 41 standing the foregoing, not later than April first, two thousand twelve, 42 the vendor fee shall become thirty-two percent and remain at that level 43 thereafter; and except for Aqueduct racetrack, in which case the vendor 44 fee shall be thirty-eight percent of the total revenue wagered at the 45 vendor track after payout for prizes pursuant to this chapter; 46 (C) notwithstanding clauses (A) and (B) of this subparagraph, when the 47 vendor track is located in an area with a population of less than one 48 million within the forty mile radius around such track, at a rate of 49 forty percent for the first fifty million dollars annually, twenty-nine 50 percent for the next hundred million dollars annually, and twenty-six 51 percent thereafter of the total revenue wagered at the vendor track 52 after payout for prizes pursuant to this chapter; 53 (D) notwithstanding clauses (A), (B) and (C) of this subparagraph, 54 when the vendor track is located within fifteen miles of a Native Ameri- 55 can class III gaming facility [or, for a period of five years effective 56 beginning April first, two thousand eight when the vendor track is S. 60--A 102 A. 160--A 1 located within Sullivan county and within sixty miles from any gaming 2 facility in a contiguous state,] at a rate of forty-two percent of the 3 total revenue wagered at the vendor track after payout for prizes pursu- 4 ant to this chapter [unless such vendor track relocates outside the 5 specified geographic area sooner, in which case such rate shall be as 6 for all other tracks in the applicable clause of this subparagraph]; 7 [(D) notwithstanding clauses (A), (B) and (C) of this subparagraph, 8 when the vendor track is within fifteen miles of a Native American 9 gaming facility, at a rate of forty-two percent of the total revenue 10 wagered at the vendor track after payout for prizes pursuant to this 11 chapter;] 12 (E) notwithstanding clauses (A), (B), (C) and (D) of this subpara- 13 graph, when a Native American class III gaming facility is established, 14 after the effective date of this subparagraph, within fifteen miles of 15 the vendor track, at a rate of forty-two percent of the total revenue 16 wagered after payout for prizes pursuant to this chapter; 17 [(F) notwithstanding clauses (A), (B), (C), (D) and (E) of this 18 subparagraph, the track operator of a vendor track shall be eligible for 19 a vendor's capital award of up to four percent of the total revenue 20 wagered at the vendor track after payout for prizes pursuant to this 21 chapter, which shall be used exclusively for capital project investments 22 to improve the facilities of the vendor track which promote or encourage 23 increased attendance at the video lottery gaming facility including, but 24 not limited to hotels, other lodging facilities, entertainment facili- 25 ties, retail facilities, dining facilities, events arenas, parking 26 garages and other improvements that enhance facility amenities; provided 27 that such capital investments shall be approved by the division, in 28 consultation with the state racing and wagering board, and that such 29 vendor track demonstrates that such capital expenditures will increase 30 patronage at such vendor track's facilities and increase the amount of 31 revenue generated to support state education programs. The annual amount 32 of such vendor's capital awards that a vendor track shall be eligible to 33 receive shall be limited to two million five hundred thousand dollars, 34 except for Aqueduct racetrack, for which there shall be no vendor's 35 capital awards. Except for tracks having less than one thousand one 36 hundred video gaming machines, each track operator shall be required to 37 co-invest an amount of capital expenditure equal to its cumulative 38 vendor's capital awards. For all tracks, except for Aqueduct racetrack, 39 the amount of any vendor's capital award that is not used during any one 40 year period may be carried over into subsequent years ending before 41 April first, two thousand thirteen. Any amount attributable to a capital 42 expenditure approved prior to April first, two thousand thirteen and 43 completed before April first, two thousand fifteen shall be eligible to 44 receive the vendor's capital award. In the event that a vendor track's 45 capital expenditures, approved by the division prior to April first, two 46 thousand thirteen and completed prior to April first, two thousand 47 fifteen, exceed the vendor track's cumulative capital award during the 48 five year period ending April first, two thousand thirteen, the vendor 49 shall continue to receive the capital award after April first, two thou- 50 sand thirteen until such approved capital expenditures are paid to the 51 vendor track subject to any required co-investment. In no event shall 52 such track facility located in Sullivan county and within sixty miles 53 from any gaming facility in a contiguous state be eligible for a 54 vendor's capital award under this section, unless it shall have moved 55 from such location or the five year period commencing on April first, 56 two thousand eight has expired, whichever comes first. Any operator of a S. 60--A 103 A. 160--A 1 vendor track which has received a vendor's capital award, choosing to 2 divest the capital improvement toward which the award was applied, prior 3 to reaching the forty year straightline depreciation value of the 4 improvement, shall reimburse the state in amounts equal to the total of 5 any such awards. Any capital award not approved for a capital expendi- 6 ture at a video lottery gaming facility by April first, two thousand 7 thirteen shall be deposited in the state lottery fund for education aid; 8 and] 9 (E-1) FOR PURPOSES OF THIS SUBDIVISION, THE TERM "CLASS III GAMING" 10 SHALL HAVE THE MEANING DEFINED IN 25 U.S.C. S 2703(8). 11 (F) notwithstanding clauses (A), (B), (C), (D) and (E) of this subpar- 12 agraph, when a vendor track, is located in Sullivan county and within 13 sixty miles from any gaming facility in a contiguous state such vendor 14 fee shall, for a period of five years commencing April first, two thou- 15 sand eight, be at a rate of forty-two percent of the total revenue 16 wagered at the vendor track after payout for prizes pursuant to this 17 chapter, after which time such rate shall be as for all tracks in clause 18 (C) of this subparagraph. 19 [(G) For purposes of this subdivision, the term "class III gaming" 20 shall have the meaning defined in 25 U.S.C. S 2703(8).] 21 (G) notwithstanding any other provisions of this section, when a relo- 22 cated vendor track at which a qualified capital investment has been made 23 and no fewer than two thousand full-time, permanent employees have been 24 newly hired, is located in Sullivan county and is within sixty miles 25 from any gaming facility in a contiguous state, then for a period of 26 forty years the division shall pay into the state treasury, to the cred- 27 it of the state lottery fund created by section ninety-two-c of the 28 state finance law the greater of (i) twenty-five percent of total reven- 29 ue after payout for prizes for "video lottery games" or (ii) for the 30 first eight years of operation thirty-eight million dollars, and begin- 31 ning in the ninth year of operation such amount shall increase annually 32 by the lesser of the increase in the consumer price index or two percent 33 plus the division shall retain an amount equal to all actual expenses 34 related to operations, administration and procurement of the video 35 lottery terminal operation at the relocated vendor track, provided, 36 however, such amount retained by the division shall not exceed seven 37 percent of total revenue after payout of prizes. In addition, in the 38 event the division makes a payment pursuant to subclause (i) of this 39 clause, the division shall pay to the credit of the state lottery fund 40 created by section ninety-two-c of the state finance law 11.11 percent 41 of the amount by which total revenue after payout for prizes exceeds two 42 hundred fifteen million dollars, but in no event shall such payment 43 exceed five million dollars. 44 The balance shall be paid as a vendor's fee to the track operator of 45 the relocated vendor track for serving as a lottery agent under this 46 chapter. 47 Provided, however, that in the case of a relocated vendor track with a 48 qualified capital investment, if at any time after July first, two thou- 49 sand ten the vendor track experiences an employment shortfall, then the 50 recapture amount shall apply, for only such period as the shortfall 51 exists. 52 For the purposes of this section "qualified capital investment" shall 53 mean an investment of a minimum of one billion dollars as reflected by 54 audited financial statements of which not less than three hundred 55 million dollars shall be comprised of equity and/or mezzanine financing 56 as an initial investment in a county where twelve percent of the popu- S. 60--A 104 A. 160--A 1 lation is below the federal poverty level as measured by the most recent 2 Bureau of Census Statistics prior to the qualified capital investment 3 commencing that results in the construction, development or improvement 4 of at least one eighteen hole golf course, and the construction and 5 issuance of certificates of occupancy for hotels, lodging, convention 6 centers, spas, dining, retail and entertainment venues, parking garages 7 and other capital improvements at or adjacent to the licensed video 8 gaming facility or licensed vendor track which promote or encourage 9 increased attendance at such facilities. 10 For the purposes of this section, "full-time, permanent employee" 11 shall mean an employee who has worked at the vendor track or related and 12 adjacent facilities for a minimum of thirty-five hours per week for not 13 less than four consecutive weeks and who is entitled to receive the 14 usual and customary fringe benefits extended to other employees with 15 comparable rank and duties; or two part-time employees who have worked 16 at the vendor track or related and adjacent facilities for a combined 17 minimum of thirty-five hours per week for not less than four consecutive 18 weeks and who are entitled to receive the usual and customary fringe 19 benefits extended to other employees with comparable rank and duties. 20 For the purpose of this section "employment goal" shall mean two thou- 21 sand full-time permanent employees. 22 For the purpose of this section "employment shortfall" shall mean a 23 level of employment that falls below the employment goal, as certified 24 annually by vendor's certified accountants and the chairman of the 25 empire state development corporation. 26 For the purposes of this section "recapture amount" shall mean the 27 difference between the amount of the vendor's fee paid to a vendor track 28 with a qualified capital investment, and the vendor fee otherwise paya- 29 ble to a vendor track pursuant to clause (F) of this subparagraph, that 30 is reimbursable by the vendor track to the division for payment into the 31 state treasury, to the credit of the state lottery fund created by 32 section ninety-two-c of the state finance law, due to an employment 33 shortfall pursuant to the following schedule only for the period of the 34 employment shortfall: 35 (i) sixty-six percent of the recapture amount if the employment short- 36 fall is greater than fifty percent of the employment goal; 37 (ii) sixty percent of the recapture amount if the employment shortfall 38 is greater than forty percent of the employment goal; 39 (iii) forty-five percent of the recapture amount if the employment 40 shortfall is greater than thirty percent of the employment goal; 41 (iv) twenty percent of the recapture amount if the employment short- 42 fall is greater than twenty percent of the employment goal; 43 (v) ten percent of the recapture amount if the employment shortfall is 44 greater than ten percent of the employment goal. 45 (H) notwithstanding clauses (A), (B), (C), (D), (E), (F) and (G) of 46 this subparagraph, the track operator of a vendor track shall be eligi- 47 ble for a vendor's capital award of up to four percent of the total 48 revenue wagered at the vendor track after payout for prizes pursuant to 49 this chapter, which shall be used exclusively for capital project 50 investments to improve the facilities of the vendor track which promote 51 or encourage increased attendance at the video lottery gaming facility 52 including, but not limited to hotels, other lodging facilities, enter- 53 tainment facilities, retail facilities, dining facilities, events 54 arenas, parking garages and other improvements that enhance facility 55 amenities; provided that such capital investments shall be approved by 56 the division, in consultation with the state racing and wagering board, S. 60--A 105 A. 160--A 1 and that such vendor track demonstrates that such capital expenditures 2 will increase patronage at such vendor track's facilities and increase 3 the amount of revenue generated to support state education programs. The 4 annual amount of such vendor's capital awards that a vendor track shall 5 be eligible to receive shall be limited to two million five hundred 6 thousand dollars, except for Aqueduct racetrack, for which there shall 7 be no vendor's capital awards. Except for tracks having less than one 8 thousand one hundred video gaming machines, each track operator shall be 9 required to co-invest an amount of capital expenditure equal to its 10 cumulative vendor's capital award. For all tracks, except for Aqueduct 11 racetrack, the amount of any vendor's capital award that is not used 12 during any one year period may be carried over into subsequent years 13 ending before April first, two thousand thirteen. Any amount attribut- 14 able to a capital expenditure approved prior to April first, two thou- 15 sand thirteen and completed before April first, two thousand fifteen 16 shall be eligible to receive the vendor's capital award. IN THE EVENT 17 THAT A VENDOR TRACK'S CAPITAL EXPENDITURES, APPROVED BY THE DIVISION 18 PRIOR TO APRIL FIRST, TWO THOUSAND THIRTEEN AND COMPLETED PRIOR TO APRIL 19 FIRST, TWO THOUSAND FIFTEEN, EXCEED THE VENDOR TRACK'S CUMULATIVE CAPI- 20 TAL AWARD DURING THE FIVE YEAR PERIOD ENDING APRIL FIRST, TWO THOUSAND 21 THIRTEEN, THE VENDOR SHALL CONTINUE TO RECEIVE THE CAPITAL AWARD AFTER 22 APRIL FIRST, TWO THOUSAND THIRTEEN UNTIL SUCH APPROVED CAPITAL EXPENDI- 23 TURES ARE PAID TO THE VENDOR TRACK SUBJECT TO ANY REQUIRED CO-INVEST- 24 MENT. In no event shall any vendor track that receives a vendor fee 25 pursuant to clause (F) or (G) of this [paragraph] SUBPARAGRAPH be eligi- 26 ble for a vendor's capital award under this section. Any operator of a 27 vendor track which has received a vendor's capital award, choosing to 28 divest the capital improvement toward which the award was applied, prior 29 to [reaching the forty year straightline depreciation value of the 30 improvement] THE FULL DEPRECIATION OF THE CAPITAL IMPROVEMENT IN ACCORD- 31 ANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, shall reimburse the 32 state in amounts equal to the total of any such awards. ANY CAPITAL 33 AWARD NOT APPROVED FOR A CAPITAL EXPENDITURE AT A VIDEO LOTTERY GAMING 34 FACILITY BY APRIL FIRST, TWO THOUSAND THIRTEEN SHALL BE DEPOSITED INTO 35 THE STATE LOTTERY FUND FOR EDUCATION AID; and 36 (iii) less an additional vendor's marketing allowance at a rate of ten 37 percent for the first one hundred million dollars annually and eight 38 percent thereafter of the total revenue wagered at the vendor track 39 after payout for prizes to be used by the vendor track for the marketing 40 and promotion and associated costs of its video lottery gaming oper- 41 ations and pari-mutuel horse racing operations, as long as any such 42 costs associated with pari-mutuel horse racing operations simultaneously 43 encourage increased attendance at such vendor's video lottery gaming 44 facilities, consistent with the customary manner of marketing comparable 45 operations in the industry and subject to the overall supervision of the 46 division; provided, however, that the additional vendor's marketing 47 allowance shall not exceed eight percent in any year for any operator of 48 a racetrack located in the county of Westchester or Queens; provided, 49 however, a vendor track that receives a vendor fee pursuant to clause 50 (G) of [this] subparagraph (II) OF THIS PARAGRAPH shall not receive the 51 additional vendor's marketing allowance. In establishing the vendor fee, 52 the division shall ensure the maximum lottery support for education 53 while also ensuring the effective implementation of section sixteen 54 hundred seventeen-a of this article through the provision of reasonable 55 reimbursements and compensation to vendor tracks for participation in 56 such program. Within twenty days after any award of lottery prizes, the S. 60--A 106 A. 160--A 1 division shall pay into the state treasury, to the credit of the state 2 lottery fund, the balance of all moneys received from the sale of all 3 tickets for the lottery in which such prizes were awarded remaining 4 after provision for the payment of prizes as herein provided. Any reven- 5 ues derived from the sale of advertising on lottery tickets shall be 6 deposited in the state lottery fund. 7 2. As consideration for the operation of a video lottery gaming facil- 8 ity, the division, shall cause the investment in the racing industry of 9 a portion of the vendor fee received pursuant to paragraph one of this 10 subdivision in the manner set forth in this subdivision. With the excep- 11 tion of Aqueduct racetrack, each such track shall dedicate a portion of 12 its vendor fees, received pursuant to clause (A), (B), (C), (D), (E), 13 (F), or (G) of subparagraph (ii) of paragraph one of this subdivision, 14 solely for the purpose of enhancing purses at such track, in an amount 15 equal to eight and three-quarters percent of the total revenue wagered 16 at the vendor track after pay out for prizes. In addition, WITH THE 17 EXCEPTION OF AQUEDUCT RACETRACK, one and one-quarter percent of total 18 revenue wagered at the vendor track after pay out for prizes, received 19 pursuant to clause (A), (B), (C), (D), (E), (F), or (G) of subparagraph 20 (ii) of paragraph one of this subdivision, shall be distributed to the 21 appropriate breeding fund for the manner of racing conducted by such 22 track. 23 Provided, further, that nothing in this paragraph shall prevent each 24 track from entering into an agreement, not to exceed five years, with 25 the organization authorized to represent its horsemen to increase or 26 decrease the portion of its vendor fee dedicated to enhancing purses at 27 such track during the years of participation by such track, or to race 28 fewer dates than required herein. 29 3. Nothing in paragraph two of this subdivision shall affect any 30 agreement in effect on or before the effective date of this paragraph. 31 S 2. Subdivisions a and b of section 1617-a of the tax law, as amended 32 by section 2 of part Z3 of chapter 62 of the laws of 2003 and paragraph 33 3 of subdivision a as amended by chapter 18 of the laws of 2008, are 34 amended to read as follows: 35 a. The division of the lottery is hereby authorized to license, pursu- 36 ant to rules and regulations to be promulgated by the division of the 37 lottery, the operation of video lottery gaming at Aqueduct, Monticello, 38 Yonkers, Finger Lakes, and Vernon Downs racetracks, or at any other 39 racetrack licensed pursuant to article three of the racing, pari-mutuel 40 wagering and breeding law that are located in a county or counties in 41 which video lottery gaming has been authorized pursuant to local law, 42 excluding the licensed racetrack commonly referred to in article three 43 of the racing, pari-mutuel wagering and breeding law as the "New York 44 state exposition" held in Onondaga county and the racetracks of the 45 non-profit racing association known as Belmont Park racetrack and the 46 Saratoga thoroughbred racetrack. Such rules and regulations shall 47 provide, as a condition of licensure, that racetracks to be licensed are 48 certified to be in compliance with all state and local fire and safety 49 codes, that the division is afforded adequate space, infrastructure, and 50 amenities consistent with industry standards for such video gaming oper- 51 ations as found at racetracks in other states, that racetrack employees 52 involved in the operation of video lottery gaming pursuant to this 53 section are licensed by the racing and wagering board, and such other 54 terms and conditions of licensure as the division may establish. 55 Notwithstanding any inconsistent provision of law, video lottery gaming 56 at a racetrack pursuant to this section shall be deemed an approved S. 60--A 107 A. 160--A 1 activity for such racetrack under the relevant city, county, town, or 2 village land use or zoning ordinances, rules, or regulations. No [race- 3 track] ENTITY LICENSED BY THE DIVISION operating video lottery gaming 4 pursuant to this section may house such gaming activity in a structure 5 deemed or approved by the division as "temporary" for a duration of 6 longer than eighteen-months. NOTHING IN THIS SECTION SHALL PROHIBIT THE 7 DIVISION FROM LICENSING AN ENTITY TO OPERATE VIDEO LOTTERY GAMING AT AN 8 EXISTING RACETRACK AS AUTHORIZED IN THIS SUBDIVISION WHETHER OR NOT A 9 DIFFERENT ENTITY IS LICENSED TO CONDUCT HORSE RACING AND PARI-MUTUEL 10 WAGERING AT SUCH RACETRACK PURSUANT TO ARTICLE TWO OR THREE OF THE 11 RACING, PARI-MUTUEL WAGERING AND BREEDING LAW. 12 The division, in consultation with the racing and wagering board, 13 shall establish standards for approval of the temporary and permanent 14 physical layout and construction of any facility or building devoted to 15 a video lottery gaming operation. In reviewing such application for the 16 construction or reconstruction of facilities related or devoted to the 17 operation or housing of video lottery gaming operations, the division, 18 in consultation with the racing and wagering board, shall ensure that 19 such facility: 20 (1) possesses superior consumer amenities and conveniences to encour- 21 age and attract the patronage of tourists and other visitors from across 22 the region, state, and nation. 23 (2) has adequate motor vehicle parking facilities to satisfy patron 24 requirements. 25 (3) has a physical layout and location that facilitates access to and 26 from the horse racing track portion of such facility to encourage patro- 27 nage of live horse racing events that are conducted at such track. 28 b. [Video] THE HOURS OF OPERATION OF VIDEO lottery gaming shall only 29 be permitted [for no more than sixteen consecutive hours per day and on 30 no day shall such operation be conducted past 2:00 a.m] AS PRESCRIBED BY 31 THE DIVISION OF THE LOTTERY. 32 S 3. Section 1617-a of the tax law is amended by adding a new subdivi- 33 sion e to read as follows: 34 E. THE DIVISION SHALL NOT APPROVE THE CONSTRUCTION OR ALTERATION OF 35 ANY FACILITY OR BUILDING DEVOTED TO THE OPERATION OR HOUSING OF VIDEO 36 LOTTERY GAMING UNTIL THE PERSON OR ENTITY SELECTED TO OPERATE SUCH VIDEO 37 LOTTERY GAMING SHALL HAVE SUBMITTED TO THE DIVISION A STATEMENT OF THE 38 LOCATION OF THE PROPOSED FACILITY OR BUILDING, TOGETHER WITH A PLAN OF 39 SUCH RACETRACK, AND PLANS OF ALL EXISTING BUILDINGS, SEATING STANDS AND 40 OTHER STRUCTURES ON THE GROUNDS OF SUCH RACETRACK, IN SUCH FORM AS THE 41 DIVISION MAY PRESCRIBE, AND SUCH PLANS SHALL HAVE BEEN APPROVED BY THE 42 DIVISION. THE DIVISION, AT THE EXPENSE OF THE APPLICANT, MAY ORDER SUCH 43 ENGINEERING EXAMINATION THEREOF AS THE DIVISION MAY DEEM NECESSARY. 44 SUCH CONSTRUCTION OR ALTERATION MAY BE MADE ONLY WITH THE APPROVAL OF 45 THE DIVISION AND AFTER EXAMINATION AND INSPECTION OF THE PLANS THEREOF 46 AND THE ISSUANCE OF A PERMIT THEREFOR BY THE DIVISION. 47 S 4. Section 4 of part C of chapter 383 of the laws of 2001, amending 48 the tax law and other laws relating to authorizing the division of the 49 lottery to conduct a pilot program involving the operation of video 50 lottery terminals at certain racetracks, as amended by chapter 140 of 51 the laws of 2008, is amended to read as follows: 52 S 4. This act shall take effect immediately[; provided, however, that 53 the provisions of this act shall expire and be deemed repealed December 54 31, 2033]. 55 S 5. Section 4 of part C of chapter 383 of the laws of 2001, amending 56 the tax law and other laws relating to authorizing the division of the S. 60--A 108 A. 160--A 1 lottery to conduct a pilot program involving the operation of video 2 lottery terminals at certain racetracks, as amended by chapter 286 of 3 the laws of 2008, is amended to read as follows: 4 S 4. This act shall take effect immediately[; provided, however, that 5 the provisions of this act shall expire and be deemed repealed December 6 31, 2050]. 7 S 6. Subdivision a of section 1617-a of the tax law, as amended by 8 chapter 140 of the laws of 2008, is REPEALED. 9 S 7. Subdivision a of section 1617-a of the tax law, as amended by 10 chapter 286 of the laws of 2008, is REPEALED. 11 S 8. This act shall take effect immediately and shall be deemed to 12 have been in full force and effect on and after April 1, 2008. 13 PART X 14 Section 1. Section 420 of the tax law is amended by adding a new 15 subdivision 17 to read as follows: 16 17. "FLAVORED MALT BEVERAGES" MEANS ALCOHOLIC PRODUCTS MANUFACTURED 17 FROM MALT THAT ALSO CONTAIN LIQUOR AND THAT CONTAIN MORE THAN ONE-HALF 18 OF ONE PERCENT BUT NOT MORE THAN TWENTY-FOUR PERCENT OF ALCOHOL BY 19 VOLUME. 20 S 2. Subdivision 3 of section 420 of the tax law, as amended by chap- 21 ter 94 of the laws of 1934, is amended to read as follows: 22 3. "Alcoholic beverages" mean and include beers, FLAVORED MALT BEVER- 23 AGES, wines or liquors. 24 S 3. Subdivision 5 of section 420 of the tax law, as amended by chap- 25 ter 237 of the laws of 1956, is amended to read as follows: 26 5. "Beers" mean and include all alcoholic beer, lager beer, ale, 27 porter, and stout, and all other fermented beverages of any name or 28 description manufactured from malt, wholly or in part, or from any 29 substitute therefor containing one-half of one per centum, or more, of 30 alcohol by volume, BUT NOT INCLUDING ANY FLAVORED MALT BEVERAGES. 31 S 4. Subdivision 7 of section 420 of the tax law, as amended by chap- 32 ter 80 of the laws of 1935, is amended to read as follows: 33 7. "Liquors" mean and include any and all distilled or rectified spir- 34 its, alcohol, brandy, cordial (whether the base therefor be wine or 35 liquor), whiskey, rum, gin and all other distilled beverages containing 36 alcohol, including all dilutions and mixtures of one or more of the 37 foregoing, and also mean and include any alcoholic liquids which would 38 be wines OR FLAVORED MALT BEVERAGES if the alcoholic content thereof 39 were not more than twenty-four per centum by volume. 40 S 5. Subdivision 14 of section 420 of the tax law, as amended by chap- 41 ter 508 of the laws of 1993, is amended to read as follows: 42 14. "Noncommercial importer" means a person other than a distributor 43 who imports or causes to be imported into this state beers, FLAVORED 44 MALT BEVERAGES, or wines, except that such person shall not be a noncom- 45 mercial importer where such person imports or causes to be imported into 46 this state such alcoholic beverages in the quantities and under the 47 conditions provided by subdivision four of section four hundred twenty- 48 four OF THIS ARTICLE. Such term is inapplicable with respect to liquors. 49 S 6. Subdivision 1 of section 424 of the tax law is amended by adding 50 a new paragraph (e-1) to read as follows: 51 (E-1) TWO DOLLARS AND FIFTY-FOUR CENTS PER GALLON UPON FLAVORED MALT 52 BEVERAGES; S. 60--A 109 A. 160--A 1 S 7. The opening paragraph of paragraph (g) of subdivision 1 of 2 section 424 of the tax law, as amended by chapter 508 of the laws of 3 1993, is amended to read as follows: 4 For purposes of this chapter, it is presumed that liquors are 5 possessed for the purpose of sale in this state if the quantity of 6 liquors possessed in this state, imported or caused to be imported into 7 this state or produced, distilled, manufactured, compounded, mixed or 8 fermented in this state exceeds ninety liters. Such presumption may be 9 rebutted by the introduction of substantial evidence to the contrary. In 10 any case where the quantity of alcoholic beverages taxable pursuant to 11 this article is a fractional part of one liter (or one gallon in the 12 case of beers, FLAVORED MALT BEVERAGES, AND WINES) or an amount greater 13 than a whole multiple of liters (or gallons in the case of beers, 14 FLAVORED MALT BEVERAGES AND WINES), the amount of tax levied and imposed 15 on such fractional part of one liter (or one gallon in the case of 16 beers, FLAVORED MALT BEVERAGES, AND WINES), or fractional part of a 17 liter (or gallon) in excess of a whole multiple of liters or gallons 18 shall be such fractional part of the rate imposed by paragraphs (a) 19 through (f) OF THIS SUBDIVISION. 20 S 8. Section 425 of the tax law, as amended by chapter 508 of the laws 21 of 1993, is amended to read as follows: 22 S 425. Special provision as to imposition of taxes on certain alcohol- 23 ic beverages. If a person shall receive any alcoholic beverages from the 24 distributor with respect thereto, under such circumstances so as to 25 preclude the collection of the taxes under this article, because this 26 state was without power to impose such taxes under this article against 27 such distributor by reason of the constitution or the law of the United 28 States enacted pursuant thereto or the constitution or laws of this 29 state, and such person shall thereafter sell or use any such alcoholic 30 beverages in such manner and under such circumstances as may subject the 31 same to the taxing power of this state with respect to any sale or use 32 thereof, such person shall be liable for the tax imposed by section four 33 hundred twenty-four OF THIS ARTICLE with respect to such sale or use, 34 and shall make the same reports and returns, pay the same taxes and be 35 subject to the other applicable provisions of this article relating to 36 distributors, except that with respect to beers, FLAVORED MALT BEVERAG- 37 ES, and wines such a person shall not be subject to the provisions of 38 sections four hundred twenty-one and four hundred twenty-two of this 39 article if such person does not offer such alcoholic beverages for sale 40 or use such alcoholic beverages for any commercial purpose. Provided, 41 further, that if the taxing power of this state does not extend to the 42 imposition of such taxes on, and the requirement of payment of such 43 taxes by, such person selling or using such beverages, then such person 44 shall be required to collect such taxes from its purchaser on the sale 45 of such beverages and to pay over such taxes to the commissioner. In 46 such event, the same reports and returns relating to distributors, along 47 with remittance, shall be required by such person and all the other 48 provisions of this article relating to distributors shall apply. If such 49 taxes are not so collected, then such purchaser shall, along with such 50 person, be liable for such taxes. 51 S 9. Section 425-a of the tax law, as added by chapter 508 of the laws 52 of 1993, is amended to read as follows: 53 S 425-a. Presumption of taxability. For the purpose of the proper 54 administration of the taxes imposed by this article and to prevent 55 evasion thereof, it shall be presumed with respect to this chapter that 56 all alcoholic beverages possessed or found in this state are subject to S. 60--A 110 A. 160--A 1 the taxes imposed by this article until the contrary is established by 2 substantial evidence. Except with respect to a purchase at retail of 3 beers, FLAVORED MALT BEVERAGES, or wines and a purchase at retail of 4 ninety liters or less of liquors, no person shall purchase alcoholic 5 beverages in this state unless the taxes imposed by this article with 6 respect to such beverages have been assumed by a distributor registered 7 under this article or paid by such distributor pursuant to and in 8 accordance with the manner provided herein and evidenced in accordance 9 with the manner provided herein. In the case of liquors, such taxes 10 shall be assumed by a distributor in accordance with the invoice 11 required, and the certification of tax payment included therein, under 12 section four hundred twenty-seven of this article; in the case of other 13 alcoholic beverages, the taxes shall be assumed by such distributor 14 pursuant to and in accordance with the rules or regulations of the 15 department. 16 S 10. Section 426 of the tax law, as amended by chapter 891 of the 17 laws of 1986, is amended to read as follows: 18 S 426. Records to be kept by brand owners, distributors, owners and 19 others. Every brand owner, distributor, owner or other person shall 20 keep a complete and accurate record of all purchases and sales or other 21 dispositions of alcoholic beverages, and a complete and accurate record 22 of the number of gallons of beers, FLAVORED MALT BEVERAGES, AND WINES 23 produced, manufactured, brewed or fermented and liters of all other 24 alcoholic beverages produced, distilled, manufactured, brewed, 25 compounded, mixed or fermented. Such records shall be in such form and 26 contain such other information as the [tax commission] COMMISSIONER 27 shall prescribe. [Said commission] THE COMMISSIONER, by rule or regu- 28 lation, also may require the delivery of statements to purchasers of 29 alcoholic beverages, and prescribe the matters to be contained therein. 30 Such records and statements, unless required by the [tax commission] 31 COMMISSIONER to be preserved for a longer period, shall be preserved for 32 a period of [one year] THREE YEARS and shall be offered for inspection 33 at any time upon oral or written demand by the commissioner [of taxation 34 and finance] or his OR HER duly authorized agents, and every such 35 distributor, brand owner, owner or other person shall make such reports 36 to the department [of taxation and finance] as may be required by the 37 [tax commission] COMMISSIONER. Nothing in this section contained shall 38 be construed to require the keeping of a record of the purchase or 39 disposition of alcoholic beverages by a consumer thereof, except by a 40 person who uses the same for commercial purposes, or of the sale of 41 alcoholic beverages at retail. 42 S 11. Section 429 of the tax law, as amended by chapter 433 of the 43 laws of 1978, is amended to read as follows: 44 S 429. Payment of tax; returns. 1. Every distributor, noncommercial 45 importer or other person shall, on or before the twentieth day of each 46 month, file with the department [of taxation and finance] a return, on 47 forms to be prescribed by the [tax commission] COMMISSIONER and 48 furnished by such department, stating separately the number of gallons, 49 or lesser quantity, of beers, FLAVORED MALT BEVERAGES, AND WINES, and 50 the number of liters, or lesser quantity, of [wines and] liquors sold or 51 used by such distributor, noncommercial importer or other person in this 52 state during the preceding calendar month, except that the [tax commis- 53 sion] COMMISSIONER may, if [it] HE OR SHE deems it necessary in order to 54 insure the payment of the tax imposed by this article, require returns 55 to be made at such times and covering such periods as [it] HE OR SHE may 56 deem necessary. Such return shall contain such further information as S. 60--A 111 A. 160--A 1 the [tax commission] COMMISSIONER shall require. The fact that the name 2 of the distributor, noncommercial importer or other person is signed to 3 a filed return shall be prima facie evidence for all purposes that the 4 return was actually signed by such distributor, noncommercial importer 5 or other person. 6 2. Each such distributor, noncommercial importer or other person shall 7 pay to such department with the filing of such return, the tax imposed 8 by this article, on each gallon, or lesser quantity, of beers, FLAVORED 9 MALT BEVERAGES, AND WINES and on each liter, or lesser quantity of all 10 other alcoholic beverages sold or used by such distributor, noncommer- 11 cial importer or other person in this state, as so reported, during the 12 period covered by such return, except that, where a distributor has 13 purchased alcoholic beverages prior to the expiration of the period 14 covered by the return, upon which the taxes imposed by this article have 15 been or are required to be paid by another distributor, a credit shall 16 be allowed for the amount of such taxes. 17 3. All alcoholic beverages which have come into the possession of a 18 distributor shall be deemed to have been sold or used by such distribu- 19 tor unless it shall be proved to the satisfaction of the [tax commis- 20 sion] COMMISSIONER that such alcoholic beverages have not been sold or 21 used. 22 4. A distributor entitled to a refund under the provisions of section 23 four hundred thirty-four of this [chapter] ARTICLE, in lieu of such 24 refund, may take credit therefor on a return filed pursuant to this 25 section, unless the [tax commission] COMMISSIONER shall withdraw such 26 privilege. 27 S 12. Subdivision 1 of section 445 of the tax law, as amended by chap- 28 ter 433 of the laws of 1978, is amended to read as follows: 29 1. Any city in this state having a population of one million or more, 30 acting through its local legislative body, is hereby authorized and 31 empowered to adopt and amend local laws imposing in any such city excise 32 taxes on a distributor and a noncommercial importer at the following 33 rates: 34 (a) Twelve cents per gallon upon beers [and]; 35 (b) Twenty-six and four-tenths cents per liter on the liquors 36 described in paragraph (f) of subdivision one of section four hundred 37 twenty-four OF THIS ARTICLE; AND 38 (C) THIRTY-NINE CENTS PER GALLON UPON FLAVORED MALT BEVERAGES, when 39 sold or used in such city. 40 Such local law shall provide that if prior to the date upon which the 41 taxes go into effect, a contract of sale of any beer or other alcoholic 42 beverages described above was made, and delivery thereof pursuant to 43 such contract is made within the city imposing such taxes on or after 44 the effective date thereof, the vendor shall be deemed a distributor, 45 and such beer and other alcoholic beverages shall be deemed to be sold, 46 and shall be subject to the tax at the time of such delivery. THE CITY 47 HAS THE OPTION OF IMPOSING TAX ON BEERS AND LIQUORS OR ON BEERS, 48 LIQUORS, AND FLAVORED MALT BEVERAGES. 49 S 13. (a) If a contract for the sale of flavored malt beverages was 50 entered into prior to April 1, 2009 and delivery under that contract is 51 made within the state on or after April 1, 2009, the flavored malt 52 beverages sold under that contract will be subject to tax under article 53 18 of the tax law, as amended by this act, at the time of delivery. 54 (b) In order to subject flavored malt beverages in this state on April 55 1, 2009 to the increased taxes imposed by section six of this act, a 56 special floor tax is imposed on each wholesaler or retailer (as defined S. 60--A 112 A. 160--A 1 in the alcoholic beverage control law) or other sellers of flavored malt 2 beverages, other than those registered as distributors under article 18 3 of the tax law, at the rate of two dollars and forty-three cents per 4 gallon on all flavored malt beverages in the possession or under the 5 control on April 1, 2009 of those wholesalers, retailers and other sell- 6 ers of flavored malt beverages for purposes of sale in the state. Addi- 7 tionally, any person who is a distributor or manufacturer under article 8 18 of the tax law is subject to this special floor tax on any flavored 9 malt beverages in his or her possession or under his or her control on 10 which the tax under article 18 of the tax law was already imposed at the 11 beer rate prior to April 1, 2009. The first 25 gallons of all flavored 12 malt beverages on April 1, 2009 in the possession or under the control 13 of any manufacturer, wholesaler, retailer, distributor or any other 14 seller of flavored malt beverages are exempt from this floor tax. This 15 floor tax is due and payable to the commissioner of taxation and finance 16 on or before June 22, 2009. 17 (c) If the city of New York imposes tax on flavored malt beverages 18 effective April 1, 2009, under the authority of subdivision 1 of section 19 445 of the tax law, as amended by section twelve of this act, a special 20 floor tax is imposed on each wholesaler or retailer, as defined in the 21 alcoholic beverage control law, other than those registered as distribu- 22 tors under article 18 of the tax law, at the rate of twenty-seven cents 23 per gallon on all flavored malt beverages in the possession or under the 24 control on April 1, 2009 of wholesalers, retailers, or all other sellers 25 of flavored malt beverages, for purposes of sale in that city and the 26 floor tax authorized by subdivision 2 of section 445 of the tax law does 27 not apply. Additionally, any person who is a distributor or manufacturer 28 under article 18 of the tax law is subject to the same special floor tax 29 on any flavored malt beverages in his or her possession or under his or 30 her control on which the tax under article 18 of the tax law was already 31 imposed at the beer rate prior to April 1, 2009. The special city floor 32 tax authorized by this subdivision must be administered, collected and 33 enforced jointly with, and under the same terms as, the special floor 34 tax imposed by subdivision (b) of this section with respect to the 35 increased taxes imposed by section six of this act. If such city imposes 36 a tax on flavored malt beverages that is not effective on April 1, 2009, 37 the provisions of subdivision 2 of section 445 of the tax law do not 38 apply to the increased taxes authorized by section twelve of this act. 39 (d) Except as provided in this section, all the provisions of articles 40 18 and 37 of the tax law will apply to taxes imposed by this section. 41 (e) The commissioner of taxation and finance is authorized to 42 prescribe any terms and conditions such commissioner deems advisable and 43 require any reports such commissioner deems necessary to effectuate the 44 provisions of this section. 45 (f) The commissioner of taxation and finance may request from the 46 state liquor authority, and the state liquor authority is authorized and 47 directed to provide, any cooperation and assistance, including data, 48 that will enable such commissioner to carry out the imposition of the 49 flavored malt beverages tax rate and the implementation of the floor 50 tax. 51 S 14. Subdivision 12-c of section 3 of the alcoholic beverage control 52 law, as renumbered by chapter 366 of the laws of 1992, is renumbered 53 subdivision 12-d and a new subdivision 12-c is added to read as follows: 54 12-C. "FLAVORED MALT BEVERAGE" MEANS AND INCLUDES ANY FERMENTED BEVER- 55 AGES OF ANY NAME OR DESCRIPTION MANUFACTURED FROM MALT, OR FROM ANY 56 SUBSTITUTE THEREFOR, CONTAINING FLAVORS AND OTHER INGREDIENTS DERIVED S. 60--A 113 A. 160--A 1 FROM LIQUOR OR SPIRITS PROVIDED THAT NO MORE THAN FORTY-NINE PERCENT OF 2 THE OVERALL ALCOHOL CONTENT OF THE FINISHED PRODUCT MAY BE DERIVED FROM 3 THE ADDITION OF SAID FLAVORS AND OTHER INGREDIENTS. FOR PURPOSES OF THIS 4 CHAPTER, "FLAVORED MALT BEVERAGES" SHALL BE CONSIDERED "BEER" AND MAY BE 5 BOUGHT, STORED AND SOLD BY ANY PERSON LICENSED PURSUANT TO THIS CHAPTER 6 WITH A LICENSE THAT ALREADY CONTAINS THE PRIVILEGE TO BUY, SELL OR STORE 7 BEER. 8 S 15. This act shall take effect April 1, 2009. 9 PART Y 10 Section 1. Paragraph (a) of subdivision 1 of section 1003 of the 11 racing, pari-mutuel wagering and breeding law, as amended by chapter 18 12 of the laws of 2008, is amended to read as follows: 13 (a) Any racing association or corporation or regional off-track 14 betting corporation, authorized to conduct pari-mutuel wagering under 15 this chapter, desiring to display the simulcast of horse races on which 16 pari-mutuel betting shall be permitted in the manner and subject to the 17 conditions provided for in this article may apply to the board for a 18 license so to do. Applications for licenses shall be in such form as may 19 be prescribed by the board and shall contain such information or other 20 material or evidence as the board may require. No license shall be 21 issued by the board authorizing the simulcast transmission of thorough- 22 bred races from a track located in Suffolk county. The fee for such 23 licenses shall be five hundred dollars per simulcast facility per year 24 payable by the licensee to the board for deposit into the general fund. 25 Except as provided herein, the board shall not approve any application 26 to conduct simulcasting into individual or group residences, homes or 27 other areas for the purposes of or in connection with pari-mutuel wager- 28 ing. The board may approve simulcasting into residences, homes or other 29 areas to be conducted jointly by one or more regional off-track betting 30 corporations and one or more of the following: a franchised corporation, 31 thoroughbred racing corporation or a harness racing corporation or asso- 32 ciation; provided (i) the simulcasting consists only of those races on 33 which pari-mutuel betting is authorized by this chapter at one or more 34 simulcast facilities for each of the contracting off-track betting 35 corporations which shall include wagers made in accordance with section 36 one thousand fifteen, one thousand sixteen and one thousand seventeen of 37 this [chapter] ARTICLE; provided further that the contract provisions or 38 other simulcast arrangements for such simulcast facility shall be no 39 less favorable than those in effect on January first, two thousand five; 40 (ii) that each off-track betting corporation having within its geograph- 41 ic boundaries such residences, homes or other areas technically capable 42 of receiving the simulcast signal shall be a contracting party; (iii) 43 the distribution of revenues shall be subject to contractual agreement 44 of the parties except that statutory payments to non-contracting 45 parties, if any, may not be reduced; provided, however, that nothing 46 herein to the contrary shall prevent a track from televising its races 47 on an irregular basis primarily for promotional or marketing purposes as 48 found by the board. For purposes of this paragraph, the provisions of 49 section one thousand thirteen of this article shall not apply. Any 50 agreement authorizing an in-home simulcasting experiment commencing 51 prior to May fifteenth, nineteen hundred ninety-five, may, and all its 52 terms, be extended until June thirtieth, two thousand [nine] TEN; 53 provided, however, that any party to such agreement may elect to termi- 54 nate such agreement upon conveying written notice to all other parties S. 60--A 114 A. 160--A 1 of such agreement at least forty-five days prior to the effective date 2 of the termination, via registered mail. Any party to an agreement 3 receiving such notice of an intent to terminate, may request the board 4 to mediate between the parties new terms and conditions in a replacement 5 agreement between the parties as will permit continuation of an in-home 6 experiment until June thirtieth, two thousand [nine] TEN; and (iv) no 7 in-home simulcasting in the thoroughbred special betting district shall 8 occur without the approval of the regional thoroughbred track. 9 S 2. Subparagraph (iii) of paragraph d of subdivision 3 of section 10 1007 of the racing, pari-mutuel wagering and breeding law, as amended by 11 chapter 18 of the laws of 2008, is amended to read as follows: 12 (iii) Of the sums retained by a receiving track located in Westchester 13 county on races received from a franchised corporation, for the period 14 commencing January first, two thousand eight and continuing through June 15 thirtieth, two thousand [nine] TEN, the amount used exclusively for 16 purses to be awarded at races conducted by such receiving track shall be 17 computed as follows: of the sums so retained, two and one-half percent 18 of the total pools. Such amount shall be increased or decreased in the 19 amount of fifty percent of the difference in total commissions deter- 20 mined by comparing the total commissions available after July twenty- 21 first, nineteen hundred ninety-five to the total commissions that would 22 have been available to such track prior to July twenty-first, nineteen 23 hundred ninety-five. 24 S 3. The opening paragraph of subdivision 1 of section 1014 of the 25 racing, pari-mutuel wagering and breeding law, as amended by chapter 18 26 of the laws of 2008, is amended to read as follows: 27 The provisions of this section shall govern the simulcasting of races 28 conducted at thoroughbred tracks located in another state or country on 29 any day during which a franchised corporation is conducting a race meet- 30 ing in Saratoga county at Saratoga thoroughbred racetrack until June 31 thirtieth, two thousand [nine] TEN and on any day regardless of whether 32 or not a franchised corporation is conducting a race meeting in Saratoga 33 county at Saratoga thoroughbred racetrack after June thirtieth, two 34 thousand [nine] TEN. On any day on which a franchised corporation has 35 not scheduled a racing program but a thoroughbred racing corporation 36 located within the state is conducting racing, every off-track betting 37 corporation branch office and every simulcasting facility licensed in 38 accordance with section one thousand seven (that have entered into a 39 written agreement with such facility's representative horsemen's organ- 40 ization, as approved by the board), one thousand eight, or one thousand 41 nine of this article shall be authorized to accept wagers and display 42 the live simulcast signal from thoroughbred tracks located in another 43 state or foreign country subject to the following provisions: 44 S 4. Subdivision 1 of section 1015 of the racing, pari-mutuel wagering 45 and breeding law, as amended by chapter 18 of the laws of 2008, is 46 amended to read as follows: 47 1. The provisions of this section shall govern the simulcasting of 48 races conducted at harness tracks located in another state or country 49 during the period July first, nineteen hundred ninety-four through June 50 thirtieth, two thousand [nine] TEN. This section shall supersede all 51 inconsistent provisions of this chapter. 52 S 5. The opening paragraph of subdivision 1 of section 1016 of the 53 racing, pari-mutuel wagering and breeding law, as amended by chapter 18 54 of the laws of 2008, is amended to read as follows: 55 The provisions of this section shall govern the simulcasting of races 56 conducted at thoroughbred tracks located in another state or country on S. 60--A 115 A. 160--A 1 any day during which a franchised corporation is not conducting a race 2 meeting in Saratoga county at Saratoga thoroughbred racetrack until June 3 thirtieth, two thousand [nine] TEN. Every off-track betting corporation 4 branch office and every simulcasting facility licensed in accordance 5 with section one thousand seven that have entered into a written agree- 6 ment with such facility's representative horsemen's organization as 7 approved by the board, one thousand eight or one thousand nine of this 8 article shall be authorized to accept wagers and display the live full- 9 card simulcast signal of thoroughbred tracks (which may include quarter 10 horse or mixed meetings provided that all such wagering on such races 11 shall be construed to be thoroughbred races) located in another state or 12 foreign country, subject to the following provisions; provided, however, 13 no such written agreement shall be required of a franchised corporation 14 licensed in accordance with section one thousand seven of this article: 15 S 6. The opening paragraph of section 1018 of the racing, pari-mutuel 16 wagering and breeding law, as amended by chapter 18 of the laws of 2008, 17 is amended to read as follows: 18 Notwithstanding any other provision of this chapter, for the period 19 July twenty-fifth, two thousand one through September [ninth] EIGHTH, 20 two thousand [eight] NINE, when a franchised corporation is conducting a 21 race meeting within the state at Saratoga Race Course, every off-track 22 betting corporation branch office and every simulcasting facility 23 licensed in accordance with section one thousand seven (that has entered 24 into a written agreement with such facility's representative horsemen's 25 organization as approved by the board), one thousand eight or one thou- 26 sand nine of this article shall be authorized to accept wagers and 27 display the live simulcast signal from thoroughbred tracks located in 28 another state, provided that such facility shall accept wagers on races 29 run at all in-state thoroughbred tracks which are conducting racing 30 programs subject to the following provisions; provided, however, no such 31 written agreement shall be required of a franchised corporation licensed 32 in accordance with section one thousand seven of this article. 33 S 7. Section 32 of chapter 281 of the laws of 1994, amending the 34 racing, pari-mutuel wagering and breeding law and other laws relating to 35 simulcasting, as amended by chapter 18 of the laws of 2008, is amended 36 to read as follows: 37 S 32. This act shall take effect immediately and the pari-mutuel tax 38 reductions in section six of this act shall expire and be deemed 39 repealed on July 1, [2009] 2010; provided, however, that nothing 40 contained herein shall be deemed to affect the application, qualifica- 41 tion, expiration, or repeal of any provision of law amended by any 42 section of this act, and such provisions shall be applied or qualified 43 or shall expire or be deemed repealed in the same manner, to the same 44 extent and on the same date as the case may be as otherwise provided by 45 law; provided further, however, that sections twenty-three and twenty- 46 five of this act shall remain in full force and effect only until May 1, 47 1997 and at such time shall be deemed to be repealed. 48 S 8. Section 54 of chapter 346 of the laws of 1990, amending the 49 racing, pari-mutuel wagering and breeding law and other laws relating to 50 simulcasting and the imposition of certain taxes, as amended by chapter 51 18 of the laws of 2008, is amended to read as follows: 52 S 54. This act shall take effect immediately; provided, however, 53 sections three through twelve of this act shall take effect on January 54 1, 1991, and section 1013 of the racing, pari-mutuel wagering and breed- 55 ing law, as added by section thirty-eight of this act, shall expire and 56 be deemed repealed on July 1, [2009] 2010; and section eighteen of this S. 60--A 116 A. 160--A 1 act shall take effect on July 1, 2008 and sections fifty-one and fifty- 2 two of this act shall take effect as of the same date as chapter 772 of 3 the laws of 1989 took effect. 4 S 9. Paragraph (a) of subdivision 1 of section 238 of the racing, 5 pari-mutuel wagering and breeding law, as amended by chapter 115 of the 6 laws of 2008, is amended to read as follows: 7 (a) The franchised corporation authorized under this chapter to 8 conduct pari-mutuel betting at a race meeting or races run thereat shall 9 distribute all sums deposited in any pari-mutuel pool to the holders of 10 winning tickets therein, provided such tickets be presented for payment 11 before April first of the year following the year of their purchase, 12 less an amount which shall be established and retained by such fran- 13 chised corporation of between sixteen to seventeen per centum of the 14 total deposits in pools resulting from on-track regular bets, and eigh- 15 teen and one-half to twenty-one per centum of the total deposits in 16 pools resulting from on-track multiple bets and twenty-six per centum of 17 the total deposits in pools resulting from on-track exotic bets and 18 sixteen to thirty-six per centum of the total deposits in pools result- 19 ing from on-track super exotic bets, and twenty-six to thirty-six per 20 centum when such on-track super exotic betting pools are carried 21 forward, plus the breaks. The retention rate to be established is 22 subject to the prior approval of the racing and wagering board. Such 23 rate may not be changed more than once per calendar quarter to be effec- 24 tive on the first day of the calendar quarter. "Exotic bets" and 25 "multiple bets" shall have the meanings set forth in section five 26 hundred nineteen of this chapter. "Super exotic bets" shall have the 27 meaning set forth in section three hundred one of this chapter. For 28 purposes of this section, a "pick six bet" shall mean a single bet or 29 wager on the outcomes of six races. The breaks are hereby defined as the 30 odd cents over any multiple of five for payoffs greater than one dollar 31 five cents but less than five dollars, over any multiple of ten for 32 payoffs greater than five dollars but less than twenty-five dollars, 33 over any multiple of twenty-five for payoffs greater than twenty-five 34 dollars but less than two hundred fifty dollars, or over any multiple of 35 fifty for payoffs over two hundred fifty dollars. Out of the amount so 36 retained there shall be paid by such franchised corporation to the 37 commissioner of taxation and finance, as a reasonable tax by the state 38 for the privilege of conducting pari-mutuel betting on the races run at 39 the race meetings held by such franchised corporation, the following 40 percentages of the total pool for regular and multiple bets five per 41 centum of regular bets and four per centum of multiple bets plus twenty 42 per centum of the breaks; for exotic wagers seven and one-half per 43 centum plus twenty per centum of the breaks, and for super exotic bets 44 seven and one-half per centum plus fifty per centum of the breaks. For 45 the period June first, nineteen hundred ninety-five through September 46 ninth, nineteen hundred ninety-nine, such tax on regular wagers shall be 47 three per centum and such tax on multiple wagers shall be two and one- 48 half per centum, plus twenty per centum of the breaks. For the period 49 September tenth, nineteen hundred ninety-nine through March thirty- 50 first, two thousand one, such tax on all wagers shall be two and six- 51 tenths per centum and for the period April first, two thousand one 52 through December thirty-first, two thousand [nine] TEN, such tax on all 53 wagers shall be one and six-tenths per centum, plus, in each such peri- 54 od, twenty per centum of the breaks. Payment to the New York state 55 thoroughbred breeding and development fund by such franchised corpo- 56 ration shall be one-half of one per centum of total daily on-track pari- S. 60--A 117 A. 160--A 1 mutuel pools resulting from regular, multiple and exotic bets and three 2 per centum of super exotic bets provided, however, that for the period 3 September tenth, nineteen hundred ninety-nine through March thirty- 4 first, two thousand one, such payment shall be six-tenths of one per 5 centum of regular, multiple and exotic pools and for the period April 6 first, two thousand one through December thirty-first, two thousand 7 [nine] TEN, such payment shall be seven-tenths of one per centum of such 8 pools. 9 S 10. Paragraph (a) of subdivision 1 of section 238 of the racing, 10 pari-mutuel wagering and breeding law, as amended by chapter 18 of the 11 laws of 2008, is amended to read as follows: 12 (a) The franchised corporation authorized under this chapter to 13 conduct pari-mutuel betting at a race meeting or races run thereat shall 14 distribute all sums deposited in any pari-mutuel pool to the holders of 15 winning tickets therein, provided such tickets be presented for payment 16 before April first of the year following the year of their purchase, 17 less an amount which shall be established and retained by such fran- 18 chised corporation of between twelve to seventeen per centum of the 19 total deposits in pools resulting from on-track regular bets, and four- 20 teen to twenty-one per centum of the total deposits in pools resulting 21 from on-track multiple bets and fifteen to twenty-five per centum of the 22 total deposits in pools resulting from on-track exotic bets and fifteen 23 to thirty-six per centum of the total deposits in pools resulting from 24 on-track super exotic bets, plus the breaks. The retention rate to be 25 established is subject to the prior approval of the racing and wagering 26 board. Such rate may not be changed more than once per calendar quarter 27 to be effective on the first day of the calendar quarter. "Exotic bets" 28 and "multiple bets" shall have the meanings set forth in section five 29 hundred nineteen of this chapter. "Super exotic bets" shall have the 30 meaning set forth in section three hundred one of this chapter. For 31 purposes of this section, a "pick six bet" shall mean a single bet or 32 wager on the outcomes of six races. The breaks are hereby defined as the 33 odd cents over any multiple of five for payoffs greater than one dollar 34 five cents but less than five dollars, over any multiple of ten for 35 payoffs greater than five dollars but less than twenty-five dollars, 36 over any multiple of twenty-five for payoffs greater than twenty-five 37 dollars but less than two hundred fifty dollars, or over any multiple of 38 fifty for payoffs over two hundred fifty dollars. Out of the amount so 39 retained there shall be paid by such franchised corporation to the 40 commissioner of taxation and finance, as a reasonable tax by the state 41 for the privilege of conducting pari-mutuel betting on the races run at 42 the race meetings held by such franchised corporation, the following 43 percentages of the total pool for regular and multiple bets five per 44 centum of regular bets and four per centum of multiple bets plus twenty 45 per centum of the breaks; for exotic wagers seven and one-half per 46 centum plus twenty per centum of the breaks, and for super exotic bets 47 seven and one-half per centum plus fifty per centum of the breaks. For 48 the period June first, nineteen hundred ninety-five through September 49 ninth, nineteen hundred ninety-nine, such tax on regular wagers shall be 50 three per centum and such tax on multiple wagers shall be two and one- 51 half per centum, plus twenty per centum of the breaks. For the period 52 September tenth, nineteen hundred ninety-nine through March thirty- 53 first, two thousand one, such tax on all wagers shall be two and six- 54 tenths per centum and for the period April first, two thousand one 55 through December thirty-first, two thousand [nine] TEN, such tax on all 56 wagers shall be one and six-tenths per centum, plus, in each such peri- S. 60--A 118 A. 160--A 1 od, twenty per centum of the breaks. Payment to the New York state 2 thoroughbred breeding and development fund by such franchised corpo- 3 ration shall be one-half of one per centum of total daily on-track pari- 4 mutuel pools resulting from regular, multiple and exotic bets and three 5 per centum of super exotic bets provided, however, that for the period 6 September tenth, nineteen hundred ninety-nine through March thirty- 7 first, two thousand one, such payment shall be six-tenths of one per 8 centum of regular, multiple and exotic pools and for the period April 9 first, two thousand one through December thirty-first, two thousand 10 [eight] TEN, such payment shall be seven-tenths of one per centum of 11 such pools. 12 S 11. Subdivision 5 of section 1012 of the racing, pari-mutuel wager- 13 ing and breeding law, as amended by chapter 18 of the laws of 2008, is 14 amended to read as follows: 15 5. The provisions of this section shall expire and be of no further 16 force and effect after June thirtieth, two thousand [nine] TEN. 17 S 12. This act shall take effect immediately, provided that the amend- 18 ments to paragraph (a) of subdivision 1 of section 238 of the racing, 19 pari-mutuel wagering and breeding law made by section nine of this act 20 shall be subject to the expiration and reversion of such paragraph 21 pursuant to section 32 of chapter 115 of the laws of 2008, as amended, 22 when upon such date the provisions of section ten of this act shall take 23 effect. 24 PART Z 25 Section 1. Paragraph 1 of subdivision (j) of section 1111 of the tax 26 law, as amended by section 1 of part E of chapter 85 of the laws of 27 2002, is amended to read as follows: 28 (1) The tax required to be prepaid pursuant to section eleven hundred 29 three of this article shall be computed by multiplying the base retail 30 price by a tax rate of [seven] EIGHT percent and rounding the result 31 thereof to the nearest whole cent per package. 32 S 2. This act shall take effect June 1, 2009; and shall apply to sales 33 made and uses occurring on or after that date in accordance with appli- 34 cable transitional provisions in article 28 of the tax law. 35 PART AA 36 Section 1. Paragraph 17 of subdivision (b) of section 1101 of the tax 37 law, as added by chapter 309 of the laws of 1996, is amended to read as 38 follows: 39 (17) Commercial aircraft. Aircraft used primarily (i) to transport 40 persons or property, for hire, (ii) by the purchaser of the aircraft 41 [primarily] to transport such person's tangible personal property in the 42 conduct of such person's business, or (iii) for both such purposes. 43 TRANSPORTING PERSONS FOR HIRE DOES NOT INCLUDE TRANSPORTING AGENTS, 44 EMPLOYEES, OFFICERS, MEMBERS, PARTNERS, MANAGERS OR DIRECTORS OF AFFIL- 45 IATED PERSONS. PERSONS ARE AFFILIATED PERSONS WITH RESPECT TO EACH OTHER 46 WHERE ONE OF THE PERSONS HAS AN OWNERSHIP INTEREST OF MORE THAN FIVE 47 PERCENT, WHETHER DIRECT OR INDIRECT, IN THE OTHER, OR WHERE AN OWNERSHIP 48 INTEREST OF MORE THAN FIVE PERCENT, WHETHER DIRECT OR INDIRECT, IS HELD 49 IN EACH OF THE PERSONS BY ANOTHER PERSON OR BY A GROUP OF OTHER PERSONS 50 THAT ARE AFFILIATED PERSONS WITH RESPECT TO EACH OTHER. 51 S 2. Subdivision 2 of section 1118 of the tax law, as amended by chap- 52 ter 651 of the laws of 1999, is amended to read as follows: S. 60--A 119 A. 160--A 1 (2) In respect to the use of property or services purchased by the 2 user while a nonresident of this state, except in the case of tangible 3 personal property or services which the user, in the performance of a 4 contract, incorporates into real property located in the state. A person 5 while engaged in any manner in carrying on in this state any employment, 6 trade, business or profession, shall not be deemed a nonresident with 7 respect to the use in this state of property or services in such employ- 8 ment, trade, business or profession. THIS EXEMPTION DOES NOT APPLY TO 9 THE USE OF QUALIFIED PROPERTY WHERE THE QUALIFIED PROPERTY IS PURCHASED 10 PRIMARILY TO CARRY INDIVIDUALS, WHETHER OR NOT FOR HIRE, WHO ARE AGENTS, 11 EMPLOYEES, OFFICERS, SHAREHOLDERS, MEMBERS, MANAGERS, PARTNERS, OR 12 DIRECTORS OF (A) THE PURCHASER, WHERE ANY OF THOSE INDIVIDUALS WAS A 13 RESIDENT OF THIS STATE WHEN THE QUALIFIED PROPERTY WAS PURCHASED OR (B) 14 ANY AFFILIATED PERSON THAT WAS A RESIDENT WHEN THE QUALIFIED PROPERTY 15 WAS PURCHASED. FOR PURPOSES OF THIS SUBDIVISION: (I) PERSONS ARE AFFIL- 16 IATED PERSONS WITH RESPECT TO EACH OTHER WHERE ONE OF THE PERSONS HAS AN 17 OWNERSHIP INTEREST OF MORE THAN FIVE PERCENT, WHETHER DIRECT OR INDI- 18 RECT, IN THE OTHER, OR WHERE AN OWNERSHIP INTEREST OF MORE THAN FIVE 19 PERCENT, WHETHER DIRECT OR INDIRECT, IS HELD IN EACH OF THE PERSONS BY 20 ANOTHER PERSON OR BY A GROUP OF OTHER PERSONS THAT ARE AFFILIATED 21 PERSONS WITH RESPECT TO EACH OTHER; (II) "QUALIFIED PROPERTY" MEANS 22 AIRCRAFT, VESSELS AND MOTOR VEHICLES; AND (III) "CARRY" MEANS TO TAKE 23 ANY PERSON FROM ONE POINT TO ANOTHER, WHETHER FOR THE BUSINESS PURPOSES 24 OR PLEASURE OF THAT PERSON. 25 S 3. This act shall take effect on June 1, 2009, and shall apply to 26 sales made and uses occurring on or after such date in accordance with 27 the applicable transitional provisions in sections 1106 and 1217 of the 28 tax law. 29 PART BB 30 Section 1. Subdivision (e-1) of section 1132 of the tax law is 31 REPEALED. 32 S 2. This act shall take effect on June 1, 2009. 33 PART CC 34 Section 1. Section 208 of the tax law is amended by adding a new 35 subdivision 20 to read as follows: 36 20. THE TERM "DIGITAL PRODUCT" MEANS ANY PROPERTY OR SERVICE, OR 37 COMBINATION THEREOF, OF WHATEVER NATURE DELIVERED TO THE PURCHASER 38 THROUGH THE USE OF WIRE, CABLE, FIBER-OPTIC, LASER, MICROWAVE, RADIO 39 WAVE, SATELLITE OR SIMILAR SUCCESSOR MEDIA, OR ANY COMBINATION THEREOF. 40 DIGITAL PRODUCT INCLUDES, BUT IS NOT LIMITED TO, AN AUDIO WORK, AUDI- 41 OVISUAL WORK, VISUAL WORK, BOOK OR LITERARY WORK, GRAPHIC WORK, GAME, 42 INFORMATION OR ENTERTAINMENT SERVICE, STORAGE OF DIGITAL PRODUCTS AND 43 COMPUTER SOFTWARE BY WHATEVER MEANS DELIVERED. THE TERM "DELIVERED TO" 44 INCLUDES FURNISHED OR PROVIDED TO OR ACCESSED BY. FOR PURPOSES OF PARA- 45 GRAPH (A) OF SUBDIVISION TWO OF SECTION TWO HUNDRED NINE-B OF THIS ARTI- 46 CLE, SUBPARAGRAPH ONE OF PARAGRAPH (A) OF SUBDIVISION THREE OF SECTION 47 TWO HUNDRED TEN OF THIS ARTICLE AND SUBDIVISIONS TWELVE, TWELVE-B AND 48 THIRTY-THREE OF SECTION TWO HUNDRED TEN OF THIS ARTICLE, DIGITAL 49 PRODUCTS WILL BE DEEMED INTANGIBLE PROPERTY. A DIGITAL PRODUCT DOES NOT 50 INCLUDE LEGAL, MEDICAL, ACCOUNTING, ARCHITECTURAL OR ENGINEERING 51 SERVICES. S. 60--A 120 A. 160--A 1 S 2. Clause (B) of subparagraph 2 of paragraph (a) of subdivision 3 of 2 section 210 of the tax law, as separately amended by section 1 of part K 3 and section 13 of part Y of chapter 63 of the laws of 2000, is amended 4 to read as follows: 5 (B) services performed within the state, provided, however, that (i) 6 in the case of a taxpayer engaged in the business of publishing newspa- 7 pers or periodicals, receipts arising from sales of advertising 8 contained in such newspapers and periodicals shall be deemed to arise 9 from services performed within the state to the extent that such newspa- 10 pers and periodicals are delivered to points within the state, (ii) 11 receipts from an investment company arising from the sale of management, 12 administration or distribution services to such investment company shall 13 be deemed to arise from services performed within the state to the 14 extent set forth in subparagraph six of this paragraph, (iii) in the 15 case of taxpayers principally engaged in the activity of air freight 16 forwarding acting as principal and like indirect air carriage receipts 17 arising from such activity shall arise from services performed within 18 the state as follows: one hundred percent of such receipts if both the 19 pickup and delivery associated with such receipts are made in this state 20 and fifty percent of such receipts if either the pickup or delivery 21 associated with such receipts is made in this state and (iv) in the case 22 of a taxpayer which is a registered securities or commodities broker or 23 dealer, the receipts specified in subparagraph nine of this paragraph 24 shall be deemed to arise from services performed within the state to the 25 extent set forth in such subparagraph nine, [and (iv)] (V) IN THE CASE 26 OF A TAXPAYER ENGAGED IN THE BUSINESS OF BROADCASTING TELEVISION OR 27 RADIO PROGRAMS OR OTHERWISE TRANSMITTING TELEVISION OR RADIO PROGRAMS, 28 RECEIPTS ARISING FROM SALES OF ADVERTISING ON TELEVISION OR RADIO WILL 29 BE DEEMED TO BE RECEIPTS FROM SERVICES PERFORMED WITHIN THE STATE BASED 30 ON THE RATIO OF THE NUMBER OF VIEWERS OR LISTENERS WITHIN THE STATE TO 31 THE TOTAL NUMBER OF VIEWERS OR LISTENERS WITHIN AND WITHOUT THE STATE, 32 AND (VI) IN THE CASE OF A TAXPAYER NOT DESCRIBED IN SUBCLAUSE (V) OF 33 THIS CLAUSE, RECEIPTS ARISING FROM SALES OF ADVERTISING THAT IS 34 FURNISHED, PROVIDED OR DELIVERED TO, OR ACCESSED BY THE VIEWER OR 35 LISTENER THROUGH THE USE OF WIRE, CABLE, FIBER-OPTIC, LASER, MICROWAVE, 36 RADIO WAVE, SATELLITE OR SIMILAR SUCCESSOR MEDIA OR ANY COMBINATION 37 THEREOF, WILL BE DEEMED TO BE RECEIPTS FROM A SERVICE PERFORMED WITHIN 38 THE STATE BASED ON THE RATIO OR THE NUMBER OF VIEWERS OR LISTENERS WITH- 39 IN THE STATE TO THE TOTAL NUMBER OF VIEWERS OR LISTENERS WITHIN AND 40 WITHOUT THE STATE, AND (VII) in the case of receipts arising from the 41 transportation or transmission of gas through pipes, the portion of such 42 receipts which constitute receipts from services performed within the 43 state shall be the product of (I) the total of such receipts and (II) a 44 fraction, the numerator of which is the taxpayer's transportation units 45 within the state and the denominator of which is the taxpayer's trans- 46 portation units within and without the state. A transportation unit is 47 the transportation of one cubic foot of gas over a distance of one mile, 48 S 3. Clause (C) of subparagraph 2 of paragraph (a) of subdivision 3 of 49 section 210 of the tax law, as amended by chapter 802 of the laws of 50 1975, is amended to read as follows: 51 (C) EXCEPT AS PROVIDED IN CLAUSE (D) OF THIS SUBPARAGRAPH, rentals 52 from property situated, and royalties from the use of patents or copy- 53 rights, AND OTHER SIMILAR INTANGIBLE PROPERTY within the state, [and 54 receipts from the sales of rights for closed-circuit and cable tele- 55 vision transmissions of an event (other than events occurring on a regu- 56 larly scheduled basis) taking place within the state as a result of the S. 60--A 121 A. 160--A 1 rendition of services by employees of the corporation, as athletes, 2 entertainers or performing artists, but only to the extent that such 3 receipts are attributable to such transmissions received or exhibited 4 within the state] and 5 S 4. Clause (D) of subparagraph 2 of paragraph (a) of subdivision 3 of 6 section 210 of the tax law, as amended by chapter 802 of the laws of 7 1975, is amended to read as follows: 8 [(D)] (E) all other business receipts earned within the state, bear to 9 the total amount of the taxpayer's receipts, similarly computed, arising 10 during such period from all sales of its tangible personal property, 11 services, rentals, royalties, [receipts from the sales of rights for 12 closed-circuit and cable television transmissions] RECEIPTS FROM DIGITAL 13 PRODUCTS and all other business transactions, whether within or without 14 the state; 15 S 5. Subparagraph 2 of paragraph (a) of subdivision 3 of section 210 16 of the tax law is amended by adding new clause (D) to read as follows: 17 (D) RECEIPTS FROM THE SALE OF, LICENSE TO USE, OR GRANTING OF REMOTE 18 ACCESS TO DIGITAL PRODUCTS WITHIN THE STATE DETERMINED ACCORDING TO THE 19 HIERARCHY OF METHODS SET FORTH IN THIS CLAUSE IN THE ORDER STATED IN 20 SUBCLAUSES (I) THROUGH (IV) OF THIS CLAUSE. THE TAXPAYER MUST EXERCISE 21 DUE DILIGENCE UNDER EACH METHOD DESCRIBED IN THIS CLAUSE BEFORE REJECT- 22 ING IT AND PROCEEDING TO THE NEXT METHOD IN THE HIERARCHY. IF THE 23 RECEIPT FOR A DIGITAL PRODUCT IS COMPRISED OF A COMBINATION OF PROPERTY 24 AND SERVICES, IT CANNOT BE DIVIDED INTO SEPARATE COMPONENTS AND IS 25 CONSIDERED TO BE ONE RECEIPT REGARDLESS OF WHETHER IT IS SEPARATELY 26 STATED FOR BILLING PURPOSES. THE ENTIRE RECEIPT MUST BE ALLOCATED BY 27 THIS HIERARCHY. 28 (I) RECEIPTS ALLOCATED TO THE DELIVERY DESTINATION OF THE DIGITAL 29 PRODUCT. A DIGITAL PRODUCT IS DEEMED DELIVERED WITHIN THE STATE IF THE 30 LOCATION FROM WHICH THE PURCHASER OR ITS AUTHORIZED USER ACCESSES OR 31 USES THE DIGITAL PRODUCT IS IN THE STATE. DESTINATION MAY BE DEMON- 32 STRATED BY INTERNET PROTOCOL ADDRESS OR OTHER SIMILAR OR SUCCESSOR INDI- 33 CATOR, THE GEOGRAPHIC LOCATION OF THE EQUIPMENT TO WHICH THE DIGITAL 34 PRODUCT IS DELIVERED OR FROM WHICH THE DIGITAL PRODUCT IS ACCESSED, OR 35 THE DELIVERY DESTINATION INDICATED ON A BILL OF LADING OR PURCHASE 36 INVOICE. A DIGITAL PRODUCT ACCESSED OR USED BY THE PURCHASER OR ITS 37 AUTHORIZED USER DURING THE TAXPAYER'S TAXABLE YEAR IN MULTIPLE LOCATIONS 38 IS DELIVERED WITHIN THE STATE TO THE EXTENT THAT THE DIGITAL PRODUCT IS 39 ACCESSED OR USED IN THE STATE; 40 (II) THE BILLING ADDRESS OF THE PURCHASER; 41 (III) THE ZIP CODE OR OTHER GEOGRAPHIC INDICATOR OF THE PURCHASER'S 42 LOCATION; OR 43 (IV) THE PERCENTAGE OF THE TAXPAYER'S RECEIPTS WITHIN THE STATE DETER- 44 MINED PURSUANT TO THIS SUBPARAGRAPH FOR THE PRECEDING TAXABLE YEAR. 45 HOWEVER, IF THE TAXPAYER WAS NOT SUBJECT TO TAX IN THE PRECEDING TAXABLE 46 YEAR, THEN THE RECEIPTS WITHIN THE STATE IN THE CURRENT TAXABLE YEAR 47 DETERMINED PURSUANT TO THIS SUBPARAGRAPH. 48 S 6. Subparagraph 2 of paragraph (b) of subdivision 2 of section 209-B 49 of the tax law, as amended by section 3 of part K of chapter 63 of the 50 laws of 2000, is amended to read as follows: 51 (2) services performed within the metropolitan commuter transportation 52 district, provided, however, that (i) in the case of a taxpayer engaged 53 in the business of publishing newspapers or periodicals, receipts aris- 54 ing from sales of advertising contained in such newspapers and period- 55 icals shall be deemed to arise from services performed within the metro- 56 politan commuter transportation district to the extent that such S. 60--A 122 A. 160--A 1 newspapers and periodicals are delivered to points within the metropol- 2 itan commuter transportation district, (ii) receipts from an investment 3 company from the sale of management, administration or distribution 4 services to such investment company shall be deemed to arise from 5 services performed within the metropolitan commuter transportation 6 district to the extent set forth in subparagraph six of paragraph (a) of 7 subdivision three of section two hundred ten of this chapter (except 8 that references in such subparagraph six to the state shall be deemed, 9 for purposes of application to this clause, to be references to the 10 metropolitan commuter transportation district), (iii) in the case of 11 taxpayers principally engaged in the activity of air freight forwarding 12 acting as principal and like indirect air carriage receipts arising from 13 such activity shall arise from services performed within the metropol- 14 itan commuter transportation district as follows: one hundred percent of 15 such receipts if both the pickup and delivery associated with such 16 receipts are made in the metropolitan commuter transportation district 17 and fifty percent of such receipts if either the pickup or delivery 18 associated with such receipts is made in the metropolitan commuter 19 transportation district, [and] (iv) in the case of a taxpayer which is a 20 registered securities or commodities broker or dealer, the receipts 21 specified in subparagraph nine of paragraph (a) of subdivision three of 22 section two hundred ten of this article shall be deemed to arise from 23 services performed within the metropolitan commuter transportation 24 district to the extent set forth in such subparagraph nine (except that 25 references in such subparagraph nine to the state shall be deemed, for 26 purposes of the application of this clause, to be references to the 27 metropolitan commuter transportation district) AND (V) IN THE CASE OF A 28 TAXPAYER ENGAGED IN THE BUSINESS OF BROADCASTING TELEVISION OR RADIO 29 PROGRAMS OR OTHERWISE TRANSMITTING TELEVISION OR RADIO PROGRAMS, 30 RECEIPTS ARISING FROM SALES OF ADVERTISING ON TELEVISION OR RADIO WILL 31 BE DEEMED TO BE RECEIPTS FROM SERVICES PERFORMED WITHIN THE METROPOLITAN 32 COMMUTER TRANSPORTATION DISTRICT BASED ON THE RATIO OF THE NUMBER OF 33 VIEWERS OR LISTENERS WITHIN THE METROPOLITAN COMMUTER TRANSPORTATION 34 DISTRICT TO THE TOTAL NUMBER OF VIEWERS OR LISTENERS WITHIN THE STATE, 35 AND (VI) IN THE CASE OF A TAXPAYER NOT DESCRIBED IN CLAUSE (V) OF THIS 36 SUBPARAGRAPH, RECEIPTS ARISING FROM SALES OF ADVERTISING THAT IS 37 FURNISHED TO, PROVIDED OR DELIVERED TO, OR ACCESSED BY THE VIEWER OR 38 LISTENER THROUGH THE USE OF WIRE, CABLE, FIBER-OPTIC, LASER, MICROWAVE, 39 RADIO WAVE, SATELLITE OR SIMILAR SUCCESSOR MEDIA OR ANY COMBINATION 40 THEREOF, WILL BE DEEMED TO BE RECEIPTS FROM A SERVICE PERFORMED WITHIN 41 THE METROPOLITAN COMMUTER TRANSPORTATION DISTRICT BASED ON THE RATIO OF 42 THE NUMBER OF VIEWERS OR LISTENERS WITHIN THE METROPOLITAN COMMUTER 43 TRANSPORTATION DISTRICT TO THE TOTAL NUMBER OF VIEWERS OR LISTENERS 44 WITHIN THE STATE, 45 S 7. Subparagraph 3 of paragraph (b) of subdivision 2 of section 209-B 46 of the tax law, as amended by chapter 11 of the laws of 1983, is amended 47 to read as follows: 48 (3) EXCEPT AS PROVIDED IN SUBPARAGRAPH FOUR OF THIS PARAGRAPH, rentals 49 from property situated and royalties from the use of patents or copy- 50 rights AND OTHER SIMILAR INTANGIBLE within the metropolitan commuter 51 transportation district, [and receipts from the sales of rights for 52 closed-circuit and cable television transmissions of an event (other 53 than events occurring on a regularly scheduled basis) taking place with- 54 in the metropolitan commuter transportation district as a result of the 55 rendition of services by employees of the corporation, as athletes, 56 entertainers or performing artists, but only to the extent that such S. 60--A 123 A. 160--A 1 receipts are attributable to such transmissions received or exhibited 2 within the metropolitan commuter transportation district,] and 3 S 8. Subparagraph 4 of paragraph (b) of subdivision 2 of section 209-B 4 of the tax law, as amended by chapter 11 of the laws of 1983, is amended 5 to read as follows: 6 [(4)] (5) all other business receipts earned within the metropolitan 7 commuter transportation district, bear to the total amount of the 8 taxpayer's receipts, similarly computed, arising during such period from 9 all sales of its tangible personal property, services, rentals, royal- 10 ties, [receipts from the sales of rights for closed-circuit and cable 11 television transmissions] RECEIPTS FROM DIGITAL PRODUCTS and all other 12 business transactions, within the state; 13 S 9. Paragraph (b) of subdivision 2 of section 209-B of the tax law is 14 amended by adding a new subparagraph 4 to read as follows: 15 (4) RECEIPTS FROM THE SALE OF, LICENSE TO USE, OR GRANTING OF REMOTE 16 ACCESS TO DIGITAL PRODUCTS WITHIN THE METROPOLITAN COMMUTER TRANSPORTA- 17 TION DISTRICT DETERMINED ACCORDING TO THE HIERARCHY OF METHODS SET FORTH 18 IN THIS SUBPARAGRAPH IN THE ORDER STATED IN CLAUSES (I) THROUGH (IV) OF 19 THIS SUBPARAGRAPH. THE TAXPAYER MUST EXERCISE DUE DILIGENCE UNDER EACH 20 METHOD DESCRIBED IN THIS SUBPARAGRAPH BEFORE REJECTING IT AND PROCEEDING 21 TO THE NEXT METHOD IN THE HIERARCHY. IF THE RECEIPT FOR A DIGITAL PROD- 22 UCT IS COMPRISED OF A COMBINATION OF PROPERTY AND SERVICES, IT CANNOT BE 23 DIVIDED INTO SEPARATE COMPONENTS AND IS CONSIDERED TO BE ONE RECEIPT 24 REGARDLESS OF WHETHER IT IS SEPARATELY STATED FOR BILLING PURPOSES. THE 25 ENTIRE RECEIPT MUST BE ALLOCATED BY THIS HIERARCHY. 26 (I) RECEIPTS ALLOCATED TO THE DELIVERY DESTINATION OF THE DIGITAL 27 PRODUCT. A DIGITAL PRODUCT IS DEEMED DELIVERED WITHIN THE METROPOLITAN 28 COMMUTER TRANSPORTATION DISTRICT IF THE LOCATION FROM WHICH THE PURCHAS- 29 ER OR ITS AUTHORIZED USER ACCESSES OR USES THE DIGITAL PRODUCT IS IN THE 30 METROPOLITAN COMMUTER TRANSPORTATION DISTRICT. DESTINATION MAY BE DEMON- 31 STRATED BY INTERNET PROTOCOL ADDRESS OR OTHER SIMILAR OR SUCCESSOR INDI- 32 CATOR, THE GEOGRAPHIC LOCATION OF THE EQUIPMENT TO WHICH THE DIGITAL 33 PRODUCT IS DELIVERED OR FROM WHICH THE DIGITAL PRODUCT IS ACCESSED, THE 34 DELIVERY DESTINATION INDICATED ON A BILL OF LADING OR PURCHASE INVOICE. 35 A DIGITAL PRODUCT ACCESSED OR USED BY THE PURCHASER OR ITS AUTHORIZED 36 USER DURING THE TAXPAYER'S TAXABLE YEAR IN MULTIPLE LOCATIONS IS DELIV- 37 ERED WITHIN THE METROPOLITAN COMMUTER TRANSPORTATION DISTRICT TO THE 38 EXTENT THAT THE DIGITAL PRODUCT IS ACCESSED OR USED IN THE METROPOLITAN 39 COMMUTER TRANSPORTATION DISTRICT; 40 (II) THE BILLING ADDRESS OF THE PURCHASER; 41 (III) THE ZIP CODE OR OTHER GEOGRAPHIC INDICATOR OF THE PURCHASER'S 42 LOCATION; OR 43 (IV) THE PERCENTAGE OF THE TAXPAYER'S RECEIPTS WITHIN THE METROPOLITAN 44 COMMUTER TRANSPORTATION DISTRICT DETERMINED PURSUANT TO THIS PARAGRAPH 45 FOR THE PRECEDING TAXABLE YEAR. HOWEVER, IF THE TAXPAYER WAS NOT SUBJECT 46 TO TAX IN THE PRECEDING TAXABLE YEAR, THEN THE RECEIPTS WITHIN THE 47 METROPOLITAN COMMUTER TRANSPORTATION DISTRICT IN THE CURRENT TAXABLE 48 YEAR DETERMINED PURSUANT TO THIS PARAGRAPH. 49 S 9-a. Subparagraph 4 of paragraph (b) of subdivision 2 of section 50 186-e of the tax law, as added by section 5 of part S of chapter 85 of 51 the laws of 2002, is amended to read as follows: 52 (4) With respect to services [or], property OR DIGITAL PRODUCTS 53 described in subparagraph (B) of paragraph one of subdivision [(1)] ONE 54 of section eleven hundred eleven of this chapter and internet access 55 service, a home service provider shall pay tax on the gross receipt from 56 any charge that is aggregated with and not separately stated from other S. 60--A 124 A. 160--A 1 charges for mobile telecommunications service. Provided, however, if 2 such home service provider uses an objective, reasonable and verifiable 3 standard for identifying each of the components of the charge for mobile 4 telecommunications service, then such home service provider may sepa- 5 rately account for and quantify the amount of each such component 6 charge. If a home service provider chooses to so separately account for 7 and quantify and separately sells the subparagraph (B) property, DIGITAL 8 PRODUCT or service or internet access service, then the charge for such 9 property, DIGITAL PRODUCT or service shall be based upon the price for 10 such property, DIGITAL PRODUCT or service as separately sold. If a home 11 service provider chooses to so separately account for and quantify and 12 does not separately sell such property, DIGITAL PRODUCT or service, then 13 the charge for such property, DIGITAL PRODUCT or service shall be based 14 upon the prevailing retail price of comparable property, DIGITAL PRODUCT 15 or service sold separately by other home service providers. In any case, 16 the charge for such property, DIGITAL PRODUCT or service shall be 17 reasonable and proportionate to the total charge to the mobile telecom- 18 munications customer. Such charges for such subparagraph (B) services 19 [or], property, DIGITAL PRODUCTS or internet access service, as the case 20 may be, will not constitute gross receipts from charges for mobile tele- 21 communications services. Nothing herein shall be construed to exempt 22 from tax any service or property, OR DIGITAL PRODUCT otherwise subject 23 to tax under this section. 24 S 10. Section 1101 of the tax law is amended by adding a new subdivi- 25 sion (e) to read as follows: 26 (E) DIGITAL PRODUCT. (1) WHEN USED IN THIS ARTICLE FOR THE PURPOSES 27 OF THE TAXES IMPOSED BY SUBDIVISION (G) OF SECTION ELEVEN HUNDRED FIVE 28 OF THIS ARTICLE AND BY SECTION ELEVEN HUNDRED TEN OF THIS ARTICLE, THE 29 TERM "DIGITAL PRODUCT" MEANS ANY PROPERTY OR SERVICE OF WHATEVER NATURE, 30 DELIVERED TO THE PURCHASER THROUGH THE USE OF WIRE, CABLE, FIBER OPTIC, 31 LASER, MICROWAVE, RADIO WAVE, SATELLITE OR SIMILAR OR SUCCESSOR MEDIA, 32 OR ANY COMBINATION THEREOF. DIGITAL PRODUCT INCLUDES, BUT IS NOT LIMITED 33 TO, AN AUDIO WORK, AUDIOVISUAL WORK, VISUAL WORK, BOOK OR LITERARY WORK, 34 GRAPHIC WORK, GAME, INFORMATION OR ENTERTAINMENT SERVICE, STORAGE OF 35 DIGITAL PRODUCTS AND COMPUTER SOFTWARE. THE TERM "DELIVERED TO" INCLUDES 36 FURNISHED OR PROVIDED TO OR ACCESSED BY. 37 (2) DIGITAL PRODUCT DOES NOT INCLUDE THE FOLLOWING: 38 (I) ANY TANGIBLE PERSONAL PROPERTY OR SERVICE THAT IS SUBJECT TO TAX 39 UNDER ANY PROVISION OF THIS ARTICLE OTHER THAN SUBDIVISION (G) OF 40 SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE. 41 (II) ANY SERVICE, OTHER THAN A GAME OR ENTERTAINMENT SERVICE, UNLESS 42 THAT SERVICE WOULD OTHERWISE BE SUBJECT TO TAX UNDER PARAGRAPHS ONE, 43 SEVEN OR EIGHT OF SUBDIVISION (C) OF SECTION ELEVEN HUNDRED FIVE OF THIS 44 ARTICLE IF THAT SERVICE WERE FURNISHED, PROVIDED OR DELIVERED IN TANGI- 45 BLE FORM OR AS A SERVICE TO TANGIBLE PERSONAL PROPERTY OR REAL PROPERTY. 46 (III) TELEVISION OR RADIO PROGRAMMING WHERE THE PURCHASER DOES NOT 47 SELECT BOTH THE CONTENT AND THE TIME AT WHICH THE CONTENT IS DISPLAYED. 48 (IV) PURCHASER-SELECTED CONTENT SOLD WITH TELEVISION PROGRAMMING FOR A 49 SINGLE CHARGE. 50 (V) COMPUTER SOFTWARE THAT IS NOT PRE-WRITTEN COMPUTER SOFTWARE. 51 S 11. Section 1105 of the tax law is amended by adding a new subdivi- 52 sion (g) to read as follows: 53 (G) RECEIPTS FROM EVERY RETAIL SALE OF A DIGITAL PRODUCT. NOTWITH- 54 STANDING ANY OTHER PROVISION OF LAW, A DIGITAL PRODUCT IS DELIVERED TO 55 THE LOCATION TO WHICH THE DIGITAL PRODUCT IS TRANSMITTED TO THE PURCHAS- 56 ER OR ITS AGENT, OR FROM WHICH THE PURCHASER OR ITS AGENT ACCESSES THE S. 60--A 125 A. 160--A 1 DIGITAL PRODUCT. FOR PURPOSES OF DETERMINING THE JURISDICTION OR JURIS- 2 DICTIONS IN WHICH THE RETAIL SALE OF A DIGITAL PRODUCT OCCURS, THE 3 FOLLOWING RULES APPLY: 4 (1) RECEIPTS FROM THE RETAIL SALE OF DIGITAL PRODUCTS, OTHER THAN 5 PRE-WRITTEN COMPUTER SOFTWARE THAT IS NOT IN TANGIBLE FORM, ARE SOURCED 6 TO THE PLACE WHERE DELIVERED TO THE PURCHASER. THE FOREGOING RULE IS 7 AMPLIFIED, BUT NOT LIMITED, BY THE FOLLOWING SPECIAL PROVISIONS: 8 (I) IF THE VENDOR KNOWS, EITHER BY INTERNET PROTOCOL ADDRESS OR OTHER 9 SIMILAR OR SUCCESSOR INDICATOR, THE GEOGRAPHIC LOCATION OF THE EQUIPMENT 10 TO WHICH THE DIGITAL PRODUCT IS DELIVERED, THE RETAIL SALE IS SOURCED TO 11 THE JURISDICTION OR JURISDICTIONS IN WHICH THAT EQUIPMENT IS LOCATED; 12 (II) IF THE GEOGRAPHIC LOCATION OF THE EQUIPMENT DESCRIBED IN SUBPARA- 13 GRAPH (I) OF THIS PARAGRAPH IS UNKNOWN, THE RETAIL SALE IS SOURCED TO 14 THE JURISDICTION OR JURISDICTIONS IN WHICH THE BILLING ADDRESS OF THE 15 PURCHASER ASSOCIATED WITH THE METHOD OF PAYMENT FOR THE DIGITAL PRODUCT 16 IS LOCATED; 17 (III) IF THE GEOGRAPHIC LOCATION OF THE EQUIPMENT DESCRIBED IN SUBPAR- 18 AGRAPH (I) AND THE BILLING ADDRESS DESCRIBED IN SUBPARAGRAPH (II) OF 19 THIS PARAGRAPH ARE UNKNOWN, THE RETAIL SALE IS SOURCED TO THE RESIDEN- 20 TIAL OR BUSINESS STREET ADDRESS OF THE PURCHASER, AS APPLICABLE, 21 PROVIDED THAT THE USE OF THAT ADDRESS DOES NOT CONSTITUTE BAD FAITH. 22 (2) RECEIPTS FROM THE RETAIL SALE OF PRE-WRITTEN COMPUTER SOFTWARE 23 THAT IS NOT IN TANGIBLE FORM ARE SOURCED AS FOLLOWS: 24 (I) IF THE RECEIPT FROM THE RETAIL SALE OF THE SOFTWARE IS LESS THAN 25 ONE THOUSAND DOLLARS, OR THE RETAIL SALE OF THE SOFTWARE INCLUDES FEWER 26 THAN TEN SITE LICENSES, OR BOTH, THE RETAIL SALE OF THE SOFTWARE IS 27 SOURCED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH ONE OF THIS 28 SUBDIVISION; 29 (II) IF THE RECEIPT FROM THE RETAIL SALE OF THE SOFTWARE IS ONE THOU- 30 SAND DOLLARS OR MORE, OR THE SOFTWARE INCLUDES TEN OR MORE SITE 31 LICENSES, THE RETAIL SALE OF THE SOFTWARE IS SOURCED IN ACCORDANCE WITH 32 THE PROVISIONS OF PARAGRAPH ONE OF THIS SUBDIVISION, UNLESS THE VENDOR 33 HAS TIMELY RECEIVED FROM THE PURCHASER A PROPERLY COMPLETED MULTIPLE 34 POINTS OF USE CERTIFICATE IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVI- 35 SION (C) OF SECTION ELEVEN HUNDRED THIRTY-TWO OF THIS ARTICLE. 36 S 12. Subdivision (c) of section 1132 of the tax law, as amended by 37 chapter 2 of the laws of 1995, is amended to read as follows: 38 (c) (1) For the purpose of the proper administration of this article 39 and to prevent evasion of the tax hereby imposed, it shall be presumed 40 that all receipts for property, DIGITAL PRODUCTS or services of any type 41 mentioned in subdivisions (a), (b), (c) [and], (d) AND (G) of section 42 eleven hundred five OF THIS ARTICLE, all rents for occupancy of the type 43 mentioned in subdivision (e) of [said] SUCH section, and all amusement 44 charges of any type mentioned in subdivision (f) of [said] SUCH section, 45 are subject to tax until the contrary is established, and the burden of 46 proving that any receipt, amusement charge or rent is not taxable here- 47 under shall be upon the person required to collect tax or the customer. 48 Except as provided in subdivision (h) or (k) of this section, unless (i) 49 a vendor, not later than ninety days after delivery of the property OR 50 DIGITAL PRODUCT, or the rendition of the service, shall have taken from 51 the purchaser a resale or exemption certificate in such form as the 52 commissioner may prescribe, signed by the purchaser and setting forth 53 the purchaser's name and address and, except as otherwise provided by 54 regulation of the commissioner, the number of the purchaser's certif- 55 icate of authority, together with such other information as the commis- 56 sioner may require, to the effect that the property, DIGITAL PRODUCT or S. 60--A 126 A. 160--A 1 service was purchased for resale or for some use by reason of which the 2 sale is exempt from tax under the provisions of section eleven hundred 3 fifteen OF THIS ARTICLE, and, where such resale or exemption certificate 4 requires the inclusion of the purchaser's certificate of authority 5 number or other identification number required by regulations of the 6 commissioner, that the purchaser's certificate of authority has not been 7 suspended or revoked and has not expired as provided in section eleven 8 hundred thirty-four OF THIS PART, or (ii) the purchaser, not later than 9 ninety days after delivery of the property OR DIGITAL PRODUCT or the 10 rendition of the service, furnishes to the vendor: any affidavit, state- 11 ment or additional evidence, documentary or otherwise, which the commis- 12 sioner may require demonstrating that the purchaser is an exempt organ- 13 ization described in section eleven hundred sixteen OF THIS ARTICLE, the 14 sale shall be deemed a taxable sale at retail. Where a resale or 15 exemption certificate or an affidavit, statement or additional evidence 16 referred to in the previous sentence is received within the time limit 17 set forth therein, but is deficient in some material manner, and where 18 such deficiency is thereafter removed, the receipt of such resale or 19 exemption certificate or such affidavit, statement or additional 20 evidence shall be deemed to have satisfied all of the requirements of 21 the preceding sentence. Where such a resale or exemption certificate or 22 such an affidavit, statement or additional evidence has been furnished 23 to the vendor, the burden of proving that the receipt, amusement charge 24 or rent is not taxable hereunder shall be solely upon the customer. The 25 vendor shall not be required to collect tax from purchasers who furnish 26 a resale or exemption certificate, or such an affidavit, statement or 27 additional evidence in proper form, unless, in the case of a resale or 28 exemption certificate described in [clause] SUBPARAGRAPH (i) [of the 29 second sentence] of this paragraph whereon the purchaser's certificate 30 of authority number, or other identification number required by regu- 31 lation of the commissioner, is required to be included, such purchaser's 32 certificate of authority is invalid because it has been suspended or 33 revoked as provided in section eleven hundred thirty-four OF THIS PART, 34 and the commissioner has furnished registered vendors with information 35 identifying those persons whose certificates of authority have been 36 suspended or revoked, or unless such purchaser's certificate of authori- 37 ty is invalid because it has expired, and the commissioner has provided 38 registered vendors with a means of determining whether such expiration 39 has occurred. Where the vendor accepts such a resale or exemption 40 certificate from a person identified by the commissioner as one whose 41 certificate of authority has been suspended or revoked or from a person 42 whose certificate of authority has been identified as having expired, 43 the receipt, amusement charge or rent from such transaction shall be 44 deemed to be a taxable sale at retail. 45 (2) Notwithstanding paragraph one of this subdivision or any other law 46 to the contrary, the commissioner may authorize a purchaser, who 47 acquires tangible personal property, DIGITAL PRODUCTS or services under 48 circumstances which make it impossible at the time of acquisition to 49 determine the manner in which the tangible personal property, DIGITAL 50 PRODUCTS or services will be used, to pay the tax directly to the 51 commissioner and waive the collection of the tax by the vendor. Subject 52 to such reasonable conditions as the commissioner may require, the 53 commissioner shall authorize an omnibus carrier described in subdivision 54 (b) of section eleven hundred nineteen OF THIS ARTICLE to pay the tax on 55 the purchase or use of an omnibus directly to the commissioner and waive 56 the collection of the tax by the vendor. No such authority shall be S. 60--A 127 A. 160--A 1 granted or exercised except upon application to the commissioner, and 2 the issuance by the commissioner, in the commissioner's discretion, of a 3 direct payment permit. If a direct payment permit is granted, its use 4 shall be subject to conditions specified by the commissioner, and the 5 payment of tax on all acquisitions pursuant to the permit shall be made 6 directly to the commissioner by the permit holder. The commissioner may 7 suspend or revoke a direct payment permit where the permit holder fails 8 to comply with any of the provisions of this article or any rule promul- 9 gated by the commissioner with respect to this article. The notice and 10 hearing provisions applicable to the revocation and suspension of 11 certificates of authority under section eleven hundred thirty-four OF 12 THIS PART shall apply to the suspension and revocation of direct payment 13 permits. A vendor shall not be required to collect tax from a purchaser 14 who furnishes a direct payment permit in proper form, unless such 15 purchaser's direct payment permit has been suspended or revoked by the 16 commissioner and the commissioner has provided registered vendors with 17 information identifying those persons whose direct payment permits have 18 been suspended or revoked. Where a vendor accepts a direct payment 19 permit from a person whose direct payment permit has been suspended or 20 revoked, and the commissioner has provided registered vendors with 21 information identifying those persons whose direct payment permits have 22 been suspended or revoked, the receipt, amusement charge or rent from 23 such transaction shall be deemed to be subject to tax. 24 (3) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, IF A 25 VENDOR OF PRE-WRITTEN COMPUTER SOFTWARE DESCRIBED IN CLAUSE (II) OF 26 PARAGRAPH TWO OF SUBDIVISION (G) OF SECTION ELEVEN HUNDRED FIVE OF THIS 27 ARTICLE HAS, NOT LATER THAN NINETY DAYS AFTER THE DELIVERY OF THE 28 PRE-WRITTEN COMPUTER SOFTWARE, TAKEN FROM THE PURCHASER A PROPERLY 29 COMPLETED MULTIPLE POINTS OF USE CERTIFICATE THAT SETS FORTH THE JURIS- 30 DICTION OR JURISDICTIONS IN WHICH THE SOFTWARE IS DELIVERED, THE SALE OF 31 THE SOFTWARE MUST BE SOURCED, AND THE VENDOR MUST ALLOCATE, COLLECT, AND 32 REMIT THE TAXES IMPOSED BY THIS ARTICLE AND PURSUANT TO THE AUTHORITY OF 33 ARTICLE TWENTY-NINE OF THIS CHAPTER, BASED ON THE JURISDICTION OR JURIS- 34 DICTIONS WITHIN NEW YORK STATE IN WHICH EACH USER IS LOCATED, AS INDI- 35 CATED BY THE PURCHASER IN THE CERTIFICATE. THE MULTIPLE POINTS OF USE 36 CERTIFICATE SHALL BE IN THE FORM THE COMMISSIONER MAY PRESCRIBE, SIGNED 37 BY THE PURCHASER, SHALL SET FORTH THE PURCHASER'S NAME AND ADDRESS AND, 38 EXCEPT AS OTHERWISE PROVIDED BY REGULATION OF THE COMMISSIONER, STATE 39 THE NUMBER OF THE PURCHASER'S CERTIFICATE OF AUTHORITY, TOGETHER WITH 40 ANY OTHER INFORMATION THE COMMISSIONER MAY REQUIRE. WHEN A PROPERLY 41 COMPLETED MULTIPLE POINTS OF USE CERTIFICATE HAS BEEN FURNISHED TO THE 42 VENDOR, THE BURDEN OF PROVING THE JURISDICTION OR JURISDICTIONS TO WHICH 43 THE PRE-WRITTEN COMPUTER SOFTWARE WAS DELIVERED WILL BE SOLELY UPON THE 44 PURCHASER. WHEN A MULTIPLE POINTS OF USE CERTIFICATE IS TIMELY RECEIVED 45 BY THE VENDOR BUT IS DEFICIENT IN SOME MATERIAL WAY, AND THE DEFICIENCY 46 IS LATER REMOVED, THE RECEIPT OF THE CERTIFICATE WILL BE DEEMED TO HAVE 47 SATISFIED ALL OF THE REQUIREMENTS OF THIS PARAGRAPH. 48 (4) A MULTIPLE POINTS OF USE CERTIFICATE IS NOT VALID IF THE PURCHAS- 49 ER'S CERTIFICATE OF AUTHORITY HAS BEEN SUSPENDED OR REVOKED AND THE 50 COMMISSIONER HAS FURNISHED REGISTERED VENDORS WITH INFORMATION IDENTIFY- 51 ING THOSE PERSONS WHOSE CERTIFICATES OF AUTHORITY HAVE BEEN SUSPENDED OR 52 REVOKED, OR THE PURCHASER'S CERTIFICATE OF AUTHORITY IS INVALID BECAUSE 53 IT HAS EXPIRED AS PROVIDED IN SECTION ELEVEN HUNDRED THIRTY-FOUR OF THIS 54 PART AND THE COMMISSIONER HAS PROVIDED REGISTERED VENDORS WITH A MEANS 55 OF DETERMINING THAT THE PURCHASER'S CERTIFICATE OF AUTHORITY HAS 56 EXPIRED. THE VENDOR WILL NOT BE REQUIRED TO COLLECT TAX ALLOCABLE TO THE S. 60--A 128 A. 160--A 1 PORTION OF THE RECEIPT THAT THE PROPERLY COMPLETED MULTIPLE POINTS OF 2 USE CERTIFICATE INDICATES IS ATTRIBUTABLE TO USE OF THE SOFTWARE OUTSIDE 3 NEW YORK STATE. 4 S 13. Paragraph (i) of subdivision (d) of section 12 of the tax law, 5 as added by chapter 615 of the laws of 1998, is amended to read as 6 follows: 7 (i) Except as provided in clause (B) of subparagraph (ii) of paragraph 8 eight of subdivision (b) of section eleven hundred one of this chapter, 9 a person selling telecommunication services or an Internet access 10 service shall not be deemed to be a vendor, for purposes of article 11 twenty-eight or twenty-nine of this chapter, of tangible personal prop- 12 erty, DIGITAL PRODUCTS or services sold by the purchaser of such tele- 13 communication services or Internet access service solely because such 14 purchaser uses such telecommunication services or Internet access 15 service as a means to sell such tangible personal property, DIGITAL 16 PRODUCTS or services. 17 S 14. The opening paragraph of subdivision (b) of section 1101 of the 18 tax law, as added by chapter 93 of the laws of 1965, is amended to read 19 as follows: 20 When used in this article for the purposes of the taxes imposed by 21 subdivisions (a), (b), (c) [and], (d) AND (G) of section eleven hundred 22 five and by section eleven hundred ten OF THIS ARTICLE, the following 23 terms shall mean: 24 S 15. Paragraph 2 of subdivision (b) of section 1101 of the tax law, 25 as amended by section 7 of part S of chapter 85 of the laws of 2002, is 26 amended to read as follows: 27 (2) Purchaser. A person who purchases property OR A DIGITAL PRODUCT or 28 to whom are rendered services, the receipts from which are taxable under 29 this article, including a mobile telecommunications customer. 30 S 16. Paragraph 3 of subdivision (b) of section 1101 of the tax law, 31 as amended by section 21 of part Y of chapter 63 of the laws of 2000, is 32 amended to read as follows: 33 (3) Receipt. The amount of the sale price of any property OR DIGITAL 34 PRODUCT and the charge for any service taxable under this article, 35 including gas and gas service and electricity and electric service of 36 whatever nature, valued in money, whether received in money or other- 37 wise, including any amount for which credit is allowed by the vendor to 38 the purchaser, without any deduction for expenses or early payment 39 discounts and also including any charges by the vendor to the purchaser 40 for shipping or delivery, and, with respect to gas and gas service and 41 electricity and electric service, any charges by the vendor for trans- 42 portation, transmission or distribution, regardless of whether such 43 charges are separately stated in the written contract, if any, or on the 44 bill rendered to such purchaser and regardless of whether such shipping 45 or delivery or transportation, transmission, or distribution is provided 46 by such vendor or a third party, but excluding any credit for tangible 47 personal property accepted in part payment and intended for resale. For 48 special rules governing computation of receipts, see section eleven 49 hundred eleven OF THIS ARTICLE. 50 S 17. Subparagraph (i) of paragraph 4 of subdivision (b) of section 51 1101 of the tax law, as amended by chapter 190 of the laws of 1990, is 52 amended to read as follows: 53 (i) A sale of tangible personal property OR A DIGITAL PRODUCT to any 54 person for any purpose, other than (A) for resale as such or as a phys- 55 ical component part of tangible personal property OR, IN THE CASE OF A 56 DIGITAL PRODUCT, AS A COMPONENT PART OF TANGIBLE PERSONAL PROPERTY, or S. 60--A 129 A. 160--A 1 (B) for use by that person in performing the services subject to tax 2 under paragraphs (1), (2), (3), (5), (7) and (8) of subdivision (c) of 3 section eleven hundred five OF THIS ARTICLE where the TANGIBLE PERSONAL 4 property so sold becomes a physical component part OR THE DIGITAL PROD- 5 UCT BECOMES A COMPONENT PART of the property upon which the services are 6 performed or where the property so sold is later actually transferred to 7 the purchaser of the service in conjunction with the performance of the 8 service subject to tax. Notwithstanding the preceding provisions of 9 this subparagraph, a sale of any tangible personal property to a 10 contractor, subcontractor or repairman for use or consumption in erect- 11 ing structures or buildings, or building on, or otherwise adding to, 12 altering, improving, maintaining, servicing or repairing real property, 13 property or land, as the terms real property, property or land are 14 defined in the real property tax law, is deemed to be a retail sale 15 regardless of whether the tangible personal property is to be resold as 16 such before it is so used or consumed, except that a sale of a new 17 mobile home to a contractor, subcontractor or repairman who, in such 18 capacity, installs such property is not a retail sale. Notwithstanding 19 the preceding provisions of this subparagraph, the purchase of a truck, 20 trailer or tractor-trailer combination for rental or lease to an author- 21 ized carrier, as described in paragraph twenty-two of subdivision (a) of 22 section eleven hundred fifteen OF THIS ARTICLE, shall be deemed a retail 23 sale. 24 S 18. Clause (A) of subparagraph (iv) of paragraph 4 of subdivision 25 (b) of section 1101 of the tax law, as added by chapter 93 of the laws 26 of 1965 and such subparagraph as renumbered by chapter 2 of the laws of 27 1995, is amended to read as follows: 28 (A) The transfer of tangible personal property OR A DIGITAL PRODUCT to 29 a corporation, solely in consideration for the issuance of its stock, 30 pursuant to a merger or consolidation effected under the law of New York 31 or any other jurisdiction. 32 S 19. Paragraph 6 of subdivision (b) of section 1101 of the tax law, 33 as amended by chapter 498 of the laws of 1994, is amended to read as 34 follows: 35 (6) Tangible personal property. Corporeal personal property of any 36 nature. However, except for purposes of the tax imposed by subdivision 37 (b) of section eleven hundred five, such term shall not include gas, 38 electricity, refrigeration and steam. Such term shall also include pre- 39 written computer software, whether sold as part of a package, as a sepa- 40 rate component, or otherwise, [and regardless of the medium by means of 41 which such software is conveyed to a purchaser. Such term shall also 42 include newspapers and periodicals where the vendor ships or delivers 43 the entire edition or issue of the newspaper or periodical, with or 44 without the advertising included in the paper edition or issue, but not 45 including anything, other than advertising, not in such paper edition or 46 issue, to the purchaser by means of telephony or telegraphy or other 47 electronic media, but only where the amount of the sale price to such 48 purchaser of such newspaper or magazine or the subscription price, in 49 the case of a subscription to a newspaper or periodical, including any 50 charge by such vendor for shipping or delivery to the purchaser, is 51 separately stated to such purchaser] WHEN DELIVERED TO THE PURCHASER IN 52 TANGIBLE FORM. 53 S 20. Paragraph 7 of subdivision (b) of section 1101 of the tax law, 54 as amended by chapter 651 of the laws of 1999, is amended to read as 55 follows: S. 60--A 130 A. 160--A 1 (7) Use. The exercise of any right or power over tangible personal 2 property OR A DIGITAL PRODUCT, or over any of the services which are 3 subject to tax under section eleven hundred ten of this article or 4 pursuant to the authority of article twenty-nine of this chapter, by the 5 purchaser thereof, and includes, but is not limited to, the receiving, 6 storage or any keeping or retention for any length of time, withdrawal 7 from storage, any installation, any affixation to real or personal prop- 8 erty, or any consumption of such property OR DIGITAL PRODUCT or of any 9 such service subject to tax under such section eleven hundred ten or 10 pursuant to the authority of such article twenty-nine. Without limiting 11 the foregoing, use also [shall include] INCLUDES THE ACCESSING OF A 12 DIGITAL PRODUCT FROM A LOCATION WITHIN THE STATE, REGARDLESS OF WHERE 13 THE DIGITAL PRODUCT IS INSTALLED OR RESIDES ON A SERVER OR OTHER EQUIP- 14 MENT, AND the distribution of [only] tangible personal property OR 15 DIGITAL PRODUCTS, such as promotional materials, or of any such service 16 subject to tax under such section eleven hundred ten OF THIS ARTICLE or 17 pursuant to the authority of such article twenty-nine OF THIS CHAPTER. 18 S 21. Subparagraph (i) of paragraph 8 of subdivision (b) of section 19 1101 of the tax law, as amended by chapter 61 of the laws of 1989, 20 clause (F) as added and clauses (G) and (H) as relettered by chapter 190 21 of the laws of 1990, is amended to read as follows: 22 (i) The term "vendor" includes: 23 (A) A person making sales of tangible personal property, DIGITAL 24 PRODUCTS or services, the receipts from which are taxed by this article; 25 (B) A person maintaining a place of business in the state and making 26 sales, whether at such place of business or elsewhere, to persons within 27 the state of tangible personal property, DIGITAL PRODUCTS or services, 28 the use of which is taxed by this article; 29 (C) A person who solicits business either: 30 (I) by employees, independent contractors, agents or other represen- 31 tatives; or 32 (II) by distribution of catalogs or other advertising matter, without 33 regard to whether such distribution is the result of regular or system- 34 atic solicitation, if such person has some additional connection with 35 the state which satisfies the nexus requirement of the United States 36 constitution; 37 and by reason thereof makes sales to persons within the state of tangi- 38 ble personal property, DIGITAL PRODUCTS or services, the use of which is 39 taxed by this article; 40 (D) A person who makes sales of tangible personal property or 41 services, the use of which is taxed by this article, and who regularly 42 or systematically delivers such property or services in this state by 43 means other than the United States mail or common carrier; 44 (E) A person who regularly or systematically solicits business in this 45 state by the distribution, without regard to the location from which 46 such distribution originated, of catalogs, advertising flyers or 47 letters, or by any other means of solicitation of business, to persons 48 in this state and by reason thereof makes sales to persons within the 49 state of tangible personal property, the use of which is taxed by this 50 article, if such solicitation satisfies the nexus requirement of the 51 United States constitution; 52 (F) A person making sales of tangible personal property, the use of 53 which is taxed by this article, where such person retains an ownership 54 interest in such property and where such property is brought into this 55 state by the person to whom such property is sold and the person to whom 56 such property is sold becomes or is a resident or uses such property in S. 60--A 131 A. 160--A 1 any manner in carrying on in this state any employment, trade, business 2 or profession; 3 (G) Any other person making sales to persons within the state of 4 tangible personal property, DIGITAL PRODUCTS or services, the use of 5 which is taxed by this article, who may be authorized by the commission- 6 er [of taxation and finance] to collect such tax by part [IV] FOUR of 7 this article; and 8 (H) The state of New York, any of its agencies, instrumentalities, 9 public corporations (including a public corporation created pursuant to 10 agreement or compact with another state or Canada) or political subdivi- 11 sions when such entity sells services [or], property OR DIGITAL PRODUCTS 12 of a kind ordinarily sold by private persons. 13 S 22. Subparagraph (ii) of paragraph 8 of subdivision (b) of section 14 1101 of the tax law, as amended by chapter 190 of the laws of 1990, 15 clause (A) as amended by chapter 75 of the laws of 1998, is amended to 16 read as follows: 17 (ii) (A) In addition, when in the opinion of the commissioner it is 18 necessary for the efficient administration of this article to treat any 19 salesman, representative, peddler or canvasser as the agent of the 20 vendor, distributor, supervisor or employer under whom he OR SHE oper- 21 ates or from whom he OR SHE obtains tangible personal property OR 22 DIGITAL PRODUCTS sold by him OR HER, or for whom he OR SHE solicits 23 business, the commissioner may, in his OR HER discretion, treat such 24 agent as the vendor jointly responsible with his OR HER principal, 25 distributor, supervisor or employer for the collection and payment over 26 of the tax. An unaffiliated person providing fulfillment services to a 27 purchaser shall not be treated as a vendor by the commissioner under 28 this paragraph with respect to such activity. For purposes of this 29 clause, persons are affiliated persons with respect to each other where 30 one of such persons has an ownership interest of more than five percent, 31 whether direct or indirect, in the other, or where an ownership interest 32 of more than five percent, whether direct or indirect, is held in each 33 of such persons by another person or by a group of other persons which 34 are affiliated persons with respect to each other. 35 (B) A person shall be deemed a vendor of [the services enumerated in 36 paragraph nine of subdivision (c)] A DIGITAL PRODUCT SUBJECT TO TAX 37 UNDER SUBDIVISION (G) of section eleven hundred five of this article, 38 liable for all the obligations of a vendor, including the collection, 39 reporting and remittance of the tax imposed under this article and 40 possessing all the rights of a vendor including the right to an exclu- 41 sion or a credit or refund of tax as provided in subdivision (e) of 42 section eleven hundred thirty-two of this article, with respect to [such 43 services] THE DIGITAL PRODUCTS which are provided by a vendor thereof 44 and are subject to taxation under this article, where such person, its 45 affiliate or agent bills, on behalf of such vendor, either (I) as part 46 of, or as a schedule to, the statement of such person to its purchasers 47 or (II) separately (without regard to whether or not such person has 48 customers of its own), [such enumerated services] A DIGITAL PRODUCT 49 provided by such vendor. For the purpose of this paragraph, "affiliate" 50 means an entity which directly, indirectly or constructively controls a 51 vendor of [such enumerated services] DIGITAL PRODUCTS or is controlled 52 by such vendor or is under the control of, along with such vendor, a 53 common parent. Provided, however, the provisions of this clause shall 54 not in any way be construed to otherwise limit or remove the obligations 55 and liabilities of any person with respect to the tax imposed by this 56 article. S. 60--A 132 A. 160--A 1 S 23. Clause (B) of subparagraph (v) of paragraph 8 of subdivision (b) 2 of section 1101 of the tax law, as amended by chapter 75 of the laws of 3 1998, is amended to read as follows: 4 (B) a person who is not otherwise a vendor who owns tangible personal 5 property OR A DIGITAL PRODUCT located on the premises of an unaffiliated 6 person performing fulfillment services for such person. 7 For purposes of this subparagraph, persons are affiliated persons with 8 respect to each other where one of such persons has an ownership inter- 9 est of more than five percent, whether direct or indirect, in the other, 10 or where an ownership interest of more than five percent, whether direct 11 or indirect, is held in each of such persons by another person or by a 12 group of other persons which are affiliated persons with respect to each 13 other. 14 S 24. Subparagraph (vi) of paragraph 8 of subdivision (b) of section 15 1101 of the tax law, as added by section 1 of part OO-1 of chapter 57 of 16 the laws of 2008, is amended to read as follows: 17 (vi) For purposes of subclause (I) of clause (C) of subparagraph (i) 18 of this paragraph, a person making sales of tangible personal property, 19 DIGITAL PRODUCTS or services taxable under this article ("seller") shall 20 be presumed to be soliciting business through an independent contractor 21 or other representative if the seller enters into an agreement with a 22 resident of this state under which the resident, for a commission or 23 other consideration, directly or indirectly refers potential customers, 24 whether by a link on an internet website or otherwise, to the seller, if 25 the cumulative gross receipts from sales by the seller to customers in 26 the state who are referred to the seller by all residents with this type 27 of an agreement with the seller is in excess of ten thousand dollars 28 during the preceding four quarterly periods ending on the last day of 29 February, May, August, and November. This presumption may be rebutted by 30 proof that the resident with whom the seller has an agreement did not 31 engage in any solicitation in the state on behalf of the seller that 32 would satisfy the nexus requirement of the United States constitution 33 during the four quarterly periods in question. Nothing in this subpara- 34 graph shall be construed to narrow the scope of the terms independent 35 contractor or other representative for purposes of subclause (I) of 36 clause (C) of subparagraph (i) of this paragraph. 37 S 25. Paragraph 12 of subdivision (b) of section 1101 of the tax law, 38 as amended by chapter 220 of the laws of 2000, is amended to read as 39 follows: 40 (12) Promotional materials. Any advertising literature, other related 41 tangible personal property OR DIGITAL PRODUCTS (whether or not personal- 42 ized by the recipient's name or other information uniquely related to 43 such person) and envelopes used exclusively to deliver the same. Such 44 other related tangible personal property [includes] AND DIGITAL PRODUCTS 45 INCLUDE, but [is] ARE not limited to, free gifts, complimentary maps or 46 other items given to travel club members, applications, order forms and 47 return envelopes with respect to such advertising literature, annual 48 reports, prospectuses, promotional displays and Cheshire labels but does 49 not include invoices, statements and the like. Promotional materials 50 shall also include paper or ink furnished to a printer for use in 51 providing the services of producing, printing or imprinting promotional 52 materials or in producing, printing or imprinting promotional materials, 53 where such paper and ink become a physical component part of the promo- 54 tional materials and such printer sells such services or such promo- 55 tional materials to the person who furnished the paper and ink to such 56 printer. S. 60--A 133 A. 160--A 1 S 26. Paragraph 2 of subdivision (d) of section 1103 of the tax law, 2 as added by chapter 2 of the laws of 1995, is amended to read as 3 follows: 4 (2) On or before the twelfth day of each month, after reserving such 5 amount for such refunds and such costs, the commissioner shall determine 6 the amount of all revenues so received during the prior month as a 7 result of the taxes, interest and penalties so imposed and, in addition, 8 on or before the last day of June and December the commissioner shall 9 determine in like manner the amount of such moneys received during and 10 including the first twenty-five days of said months. The commissioner 11 shall determine the proportion of revenues attributable to receipts for 12 the period for which the determination is made pursuant to the preceding 13 sentence from taxes on sales and uses of TANGIBLE PERSONAL property, 14 DIGITAL PRODUCTS and services and rent and amusement charges imposed by 15 this article and pursuant to the authority of article twenty-nine of 16 this chapter and administered by the commissioner which is payable to 17 each jurisdiction determined without regard to this section. The amount 18 of revenues so determined pursuant to this section shall be deposited 19 and distributed by the comptroller in accordance with the same percent- 20 age amount to which a jurisdiction is entitled determined without regard 21 to this section. Where the amount so determined in any distribution from 22 such taxes (other than the tax imposed by this section) is more or less 23 than the amount due, the amount of the overpayment or underpayment shall 24 be determined as soon after the discovery of the overpayment or under- 25 payment as is reasonably possible and subsequent determinations shall be 26 adjusted by subtracting the amount of any such overpayment from or by 27 adding the amount of any such underpayment to such number of subsequent 28 payments as the comptroller and the commissioner shall consider reason- 29 able in view of the amount of the overpayment or underpayment and all 30 other pertinent facts and circumstances. The commissioner shall not be 31 liable for any overestimate or underestimate of the amount of the 32 distribution. Nor shall the commissioner be liable for any inaccuracy in 33 any determination with respect to the amount of the distribution or any 34 required adjustment with respect to the distribution, but the commis- 35 sioner shall as soon as practicable after discovery of any error adjust 36 the next determination under this section to reflect any such error. 37 S 27. Paragraph 9 of subdivision (c) of section 1105 of the tax law, 38 as amended by chapter 170 of the laws of 1994, is amended to read as 39 follows: 40 (9) [(i) The furnishing or provision of an entertainment service or of 41 an information service (but not an information service subject to tax 42 under paragraph one of this subdivision), which is furnished, provided, 43 or delivered by means of telephony or telegraphy or telephone or tele- 44 graph service (whether intrastate or interstate) of whatever nature, 45 such as entertainment or information services provided through 800 or 46 900 numbers or mass announcement services or interactive information 47 network services. Provided, however, that in no event (i) shall the 48 furnishing or provision of an information service be taxed under this 49 paragraph unless it would otherwise be subject to taxation under para- 50 graph one of this subdivision if it were furnished by printed, mimeo- 51 graphed or multigraphed matter or by duplicating written or printed 52 matter in any other manner nor (ii) shall the provision of cable tele- 53 vision service to customers be taxed under this paragraph. 54 (ii)] Notwithstanding the rate and date set forth in the opening 55 undesignated paragraph of this section and notwithstanding the opening 56 undesignated paragraph of this subdivision, [on and after September S. 60--A 134 A. 160--A 1 first, nineteen hundred ninety-three,] in addition to any other tax 2 imposed under this section, and in addition to any other tax or fee 3 imposed under any other provision of law, there is hereby imposed and 4 there shall be paid an additional tax at the rate of five percent upon 5 the receipts [which are subject to tax under subparagraph (i) of this 6 paragraph on the] FROM THE furnishing or provision of an entertainment 7 or information service (BUT NOT AN INFORMATION SERVICE SUBJECT TO TAX 8 UNDER PARAGRAPH ONE OF THIS SUBDIVISION), WHICH IS FURNISHED, PROVIDED, 9 OR DELIVERED BY MEANS OF TELEPHONY OR TELEGRAPHY OR TELEPHONE OR TELE- 10 GRAPH SERVICE (WHETHER INTRASTATE OR INTERSTATE) OF WHATEVER NATURE, 11 SUCH AS ENTERTAINMENT OR INFORMATION SERVICES PROVIDED THROUGH 800 OR 12 900 NUMBERS OR MASS ANNOUNCEMENT SERVICES OR INTERACTIVE INFORMATION 13 NETWORK SERVICES, AND which is received by the customer exclusively in 14 an aural manner. PROVIDED, HOWEVER, THAT IN NO EVENT (I) SHALL THE 15 FURNISHING OR PROVISION OF AN INFORMATION SERVICE BE TAXED UNDER THIS 16 PARAGRAPH UNLESS IT WOULD OTHERWISE BE SUBJECT TO TAXATION UNDER PARA- 17 GRAPH ONE OF THIS SUBDIVISION IF IT WERE FURNISHED BY PRINTED, MIMEO- 18 GRAPHED OR MULTIGRAPHED MATTER OR BY DUPLICATING WRITTEN OR PRINTED 19 MATTER IN ANY OTHER MANNER NOR (II) SHALL THE PROVISION OF CABLE TELE- 20 VISION SERVICE TO CUSTOMERS BE TAXED UNDER THIS PARAGRAPH. Such addi- 21 tional tax shall not be imposed by section eleven hundred seven, eleven 22 hundred eight or eleven hundred nine of this [article] PART and shall 23 not be included among the taxes authorized to be imposed pursuant to the 24 authority of article twenty-nine of this chapter. 25 S 28. The closing paragraph of subdivision (c) of section 1105 of the 26 tax law, as amended by chapter 190 of the laws of 1990, is amended to 27 read as follows: 28 Wages, salaries and other compensation paid by an employer to an 29 employee for performing as an employee the services described in [para- 30 graphs (1) through (9) of this subdivision] SUBDIVISIONS (c) AND (G) OF 31 THIS SECTION are not receipts subject to the taxes imposed under such 32 [subdivision] SUBDIVISIONS. 33 S 29. Clause 3 of subdivision (b) of section 1107 of the tax law, as 34 amended by chapter 651 of the laws of 1999, is amended to read as 35 follows: 36 (3) Where a sale of tangible personal property, A DIGITAL PRODUCT or 37 services, including an agreement therefor, is made in a city in which 38 the taxes imposed by subdivision (a) of this section apply, but the 39 TANGIBLE PERSONAL property OR DIGITAL PRODUCT sold, the TANGIBLE 40 PERSONAL property upon which the services were performed or such service 41 is or will be delivered to the purchaser elsewhere, such sale will not 42 be subject to taxes imposed by such subdivision (a). However, if deliv- 43 ery occurs or will occur in any city where the tax imposed by such 44 subdivision (a) applies, a vendor will be required to collect from the 45 purchaser the sales or compensating use taxes imposed by this section. 46 For the purposes of this section delivery shall be deemed to include 47 transfer of possession to the purchaser and the receiving of the TANGI- 48 BLE PERSONAL property or of the service by the purchaser AND, FOR A 49 DIGITAL PRODUCT, DELIVERY WILL BE DETERMINED IN ACCORDANCE WITH THE 50 RULES IN SUBDIVISION (G) OF SECTION ELEVEN HUNDRED FIVE OF THIS PART. 51 S 30. Clause 5 of subdivision (b) of section 1107 of the tax law, as 52 amended by chapter 376 of the laws of 1989, is amended to read as 53 follows: 54 (5) Where a retail sales tax or a compensating use tax was legally due 55 and paid to any municipal corporation in this state, without any right 56 to a refund or credit thereof, with respect to the sale or use of tangi- S. 60--A 135 A. 160--A 1 ble personal property, A DIGITAL PRODUCT or any of the services subject 2 to sales or compensating use tax, if the use of such property, DIGITAL 3 PRODUCT or services is then subject to the compensating use tax imposed 4 by this section and such tax is at a higher rate than the rate of tax 5 imposed by such municipal corporation, the tax imposed by this section 6 shall also apply but only to the extent of the difference in such rates. 7 S 31. Subdivision (b) of section 1108 of the tax law, as added by 8 chapter 168 of the laws of 1975, paragraph 1 as separately amended by 9 section 4 of part B and section 4 of part S of chapter 63 of the laws of 10 2000 and paragraph 3 as amended by chapter 651 of the laws of 1999, is 11 amended to read as follows: 12 (b) Exceptions. (1) Notwithstanding any provision of law to the 13 contrary, the receipts from the following shall be exempt from the tax 14 on retail sales and the compensating use tax imposed by this section: 15 All sales of tangible personal property OR DIGITAL PRODUCTS for use or 16 consumption directly and predominantly in the production of tangible 17 personal property, DIGITAL PRODUCTS, gas, electricity, refrigeration or 18 steam, for sale, by manufacturing, processing, generating, assembling, 19 refining, mining or extracting; and all sales of tangible personal prop- 20 erty OR DIGITAL PRODUCTS for use or consumption predominantly either in 21 the production of tangible personal property, for sale, by farming or in 22 a commercial horse boarding operation, or in both. 23 (2) The transitional provisions contained in section eleven hundred 24 six OF THIS PART shall not apply to the taxes imposed by this section. 25 (3) Where a sale of tangible personal property, A DIGITAL PRODUCT or 26 services, including an agreement therefor, is made in a city in which 27 the taxes imposed by subdivision (a) of this section apply, but the 28 TANGIBLE PERSONAL property OR DIGITAL PRODUCT sold, the TANGIBLE 29 PERSONAL property upon which the services were performed or such service 30 is or will be delivered to the purchaser elsewhere, such sale will not 31 be subject to taxes imposed by such subdivision (a). However, if deliv- 32 ery occurs or will occur in any city where the tax imposed by such 33 subdivision (a) applies, a vendor will be required to collect from the 34 purchaser[,] the sales or compensating use taxes imposed by this 35 section. For the purposes of this section delivery shall be deemed to 36 include transfer of possession to the purchaser and the receiving of the 37 TANGIBLE PERSONAL property or of the service by the purchaser AND, FOR A 38 DIGITAL PRODUCT, DELIVERY WILL BE DETERMINED IN ACCORDANCE WITH THE 39 RULES IN SUBDIVISION (G) OF SECTION ELEVEN HUNDRED FIVE OF THIS PART. 40 (4) The provisions of section twelve hundred fourteen OF THIS CHAPTER 41 shall be applicable to this section, but any reference in that section 42 to a local sales or use tax imposed by a city shall mean the additional 43 taxes imposed by subdivision (a) [hereof] OF THIS SECTION. 44 (5) Where a retail sales tax or a compensating use tax was legally due 45 and paid to any municipal corporation in this state, without any right 46 to a refund or credit thereof, with respect to the sale or use of tangi- 47 ble personal property, A DIGITAL PRODUCT or any of the services subject 48 to sales or compensating use tax, if the use of such TANGIBLE PERSONAL 49 property, DIGITAL PRODUCT or services is then subject to the compensat- 50 ing use tax imposed by this section and such tax is at a higher rate 51 than the rate of tax imposed by such municipal corporation, the tax 52 imposed by this section shall also apply but only to the extent of the 53 difference in such rates. For purposes of this subdivision, a payment to 54 the [tax commission] COMMISSIONER of a tax imposed by a municipal corpo- 55 ration shall be deemed a payment to such municipal corporation. S. 60--A 136 A. 160--A 1 S 32. Subdivision (c) of section 1109 of the tax law, as amended by 2 chapter 651 of the laws of 1999, is amended to read as follows: 3 (c) Deliveries outside the district; deliveries within the district of 4 property sold or serviced elsewhere. Where a sale of tangible personal 5 property, A DIGITAL PRODUCT or services, including an agreement there- 6 for, is made in the district in which the taxes imposed by this section 7 apply, but the TANGIBLE PERSONAL property OR DIGITAL PRODUCT sold, the 8 TANGIBLE PERSONAL property upon which the services were performed or 9 such service is or will be delivered to the purchaser elsewhere, such 10 sale will not be subject to taxes imposed by this section. However, if 11 delivery occurs or will occur in the district where the tax imposed by 12 this section applies, a vendor will be required to collect from the 13 purchaser the sales or compensating use taxes imposed by this section. 14 For the purposes of this section, delivery shall be deemed to include 15 transfer of possession to the purchaser and the receiving of the TANGI- 16 BLE PERSONAL property or of the service by the purchaser AND, FOR A 17 DIGITAL PRODUCT, DELIVERY WILL BE DETERMINED IN ACCORDANCE WITH THE 18 RULES IN SUBDIVISION (G) OF SECTION ELEVEN HUNDRED FIVE OF THIS PART. 19 The provisions of section twelve hundred fourteen of this chapter shall 20 be applicable to this section, but any reference in that section to a 21 local sales or use tax imposed by a city, county or school district 22 shall mean the additional taxes imposed by this section. 23 S 33. Subdivision (a) of section 1110 of the tax law, as amended by 24 section 28 of part Y of chapter 63 of the laws of 2000, is amended to 25 read as follows: 26 (a) Except to the extent that property or services have already been 27 or will be subject to the sales tax under this article, there is hereby 28 imposed on every person a use tax for the use within this state on and 29 after June first, nineteen hundred seventy-one except as otherwise 30 exempted under this article, (A) of any tangible personal property OR 31 DIGITAL PRODUCT purchased at retail, (B) of any tangible personal prop- 32 erty OR DIGITAL PRODUCT (other than computer software used by the author 33 or other creator) manufactured, processed or assembled by the user, (i) 34 if items of the same kind of tangible personal property OR DIGITAL PROD- 35 UCT are offered for sale by him OR HER in the regular course of business 36 or (ii) if items are used as such or incorporated into a structure, 37 building or real property by a contractor, subcontractor or repairman in 38 erecting structures or buildings, or building on, or otherwise adding 39 to, altering, improving, maintaining, servicing or repairing real prop- 40 erty, property or land, as the terms real property, property or land are 41 defined in the real property tax law, if items of the same kind are not 42 offered for sale as such by such contractor, subcontractor or repairman 43 or other user in the regular course of business, (C) of any of the 44 services described in paragraphs [(1), (7) and (8)] ONE, SEVEN AND EIGHT 45 of subdivision (c) of section eleven hundred five of this part, (D) of 46 any tangible personal property OR DIGITAL PRODUCT, however acquired, 47 where not acquired for purposes of resale, upon which any of the 48 services described in paragraphs [(2), (3) and (7)] TWO, THREE AND SEVEN 49 of subdivision (c) of section eleven hundred five of this part have been 50 performed, (E) of any telephone answering service described in subdivi- 51 sion (b) of section eleven hundred five of this part, (F) of any comput- 52 er software OR DIGITAL PRODUCT written or otherwise created by the user 53 if the user offers software OR A DIGITAL PRODUCT of a similar kind for 54 sale as such or as a component part of other property in the regular 55 course of business, (G) of any prepaid telephone calling service, and S. 60--A 137 A. 160--A 1 (H) of any gas or electricity described in subdivision (b) of section 2 eleven hundred five of this part. 3 S 34. Subdivision (b) of section 1110 of the tax law, as separately 4 amended by sections 19, 158 and 161 of chapter 166 of the laws of 1991, 5 is amended to read as follows: 6 (b) For purposes of clause (A) of subdivision (a) of this section, the 7 tax shall be at the rate of four percent of the consideration given or 8 contracted to be given for such TANGIBLE PERSONAL property OR DIGITAL 9 PRODUCT, or for the use of such TANGIBLE PERSONAL property OR DIGITAL 10 PRODUCT, including any charges for shipping or delivery as described in 11 paragraph three of subdivision (b) of section eleven hundred one OF THIS 12 ARTICLE, but excluding any credit for tangible personal property 13 accepted in part payment and intended for resale. 14 S 35. Subdivision (c) of section 1110 of the tax law, as amended by 15 section 1 of part E of chapter 407 of the laws of 1999, is amended to 16 read as follows: 17 (c) For purposes of subclause (i) of clause (B) of subdivision (a) of 18 this section, the tax shall be at the rate of four percent of the price 19 at which items of the same kind of tangible personal property OR DIGITAL 20 PRODUCT are offered for sale by the user, and the mere storage, keeping, 21 retention or withdrawal from storage of tangible personal property OR A 22 DIGITAL PRODUCT by the person who manufactured, processed or assembled 23 such property OR DIGITAL PRODUCT shall not be deemed a taxable use by 24 [him] THAT PERSON; provided, however, that if the user uses such an item 25 itself on its own premises (not including making a gift of such tangible 26 personal property OR DIGITAL PRODUCT), solely in the conduct of the 27 user's own business operations, and the item retains its characteristic 28 as EITHER tangible personal property OR A DIGITAL PRODUCT when so used, 29 the tax shall be at the rate, and on the consideration, described in 30 subdivision (d) of this section. 31 S 36. Subdivision (f) of section 1110 of the tax law, as separately 32 amended by sections 19, 158 and 161 of chapter 166 of the laws of 1991, 33 is amended to read as follows: 34 (f) For purposes of clauses (C), (D), and (E) of subdivision (a) of 35 this section, the tax shall be at the rate of four percent of the 36 consideration given or contracted to be given for the service, including 37 the consideration for any tangible personal property OR DIGITAL PRODUCT 38 transferred in conjunction with the performance of the service and also 39 including any charges for shipping and delivery of the property so 40 transferred and of the tangible personal property OR DIGITAL PRODUCT 41 upon which the service was performed as such charges are described in 42 paragraph three of subdivision (b) of section eleven hundred one OF THIS 43 ARTICLE. 44 S 37. Subdivision (g) of section 1110 of the tax law, as separately 45 amended by sections 19, 158 and 161 of chapter 166 of the laws of 1991, 46 is amended to read as follows: 47 (g) For purposes of clause (F) of subdivision (a) of this section, the 48 tax shall be at the rate of four percent of the consideration given or 49 contracted to be given for the tangible personal property which consti- 50 tutes the blank medium, such as disks or tapes, used in conjunction with 51 the software OR DIGITAL PRODUCT, or for the use of such property, and 52 the mere storage, keeping, retention or withdrawal from storage of 53 computer software OR DIGITAL PRODUCTS described in such clause (F) by 54 its author or other creator shall not be deemed a taxable use by such 55 person. S. 60--A 138 A. 160--A 1 S 38. Subdivision (h) of section 1110 of the tax law, as added by 2 chapter 651 of the laws of 1999, is amended to read as follows: 3 (h) For purposes of clause (G) of subdivision (a) of this section, the 4 tax shall be at the rate of four percent of the consideration given or 5 contracted to be given for the service, including the consideration for 6 any tangible personal property OR DIGITAL PRODUCTS transferred in 7 conjunction with the service and also including any charges for shipping 8 and delivery of the TANGIBLE PERSONAL property OR DIGITAL PRODUCT so 9 transferred as such charges are described in paragraph three of subdivi- 10 sion (b) of section eleven hundred one OF THIS ARTICLE; provided that, 11 if the user offers like services for sale in the regular course of busi- 12 ness, the tax shall be at the rate of four percent of the price at which 13 the user offers such like services for sale. 14 S 39. Subdivision (a) of section 1111 of the tax law, as amended by 15 chapter 473 of the laws of 1969, is amended to read as follows: 16 (a) The retail sales tax imposed under subdivision (a) of section 17 eleven hundred five and the compensating use tax imposed under section 18 eleven hundred ten OF THIS PART, when computed in respect to tangible 19 personal property OR A DIGITAL PRODUCT wherever manufactured, processed 20 or assembled and used by such manufacturer, processor or assembler in 21 the regular course of business within this state, shall be based on the 22 price at which items of the same kind of tangible personal property OR 23 DIGITAL PRODUCT are offered for sale by him OR HER, except to the extent 24 otherwise provided in section eleven hundred ten of this [chapter] PART. 25 S 40. Subdivision (b) of section 1111 of the tax law, as added by 26 chapter 93 of the laws of 1965, is amended to read as follows: 27 (b) Tangible personal property OR A DIGITAL PRODUCT, which has been 28 purchased by a resident of New York state outside of this state for use 29 outside of this state and subsequently becomes subject to the compensat- 30 ing use tax imposed under this article, shall be taxed on the basis of 31 the purchase price of such property, provided, however: 32 (1) That where a taxpayer affirmatively shows that the TANGIBLE 33 PERSONAL property OR DIGITAL PRODUCT was used outside [such] THIS state 34 by him OR HER for more than six months prior to its use within this 35 state, [such] THE TANGIBLE PERSONAL property OR DIGITAL PRODUCT shall be 36 taxed on the basis of current market value of the TANGIBLE PERSONAL 37 property OR DIGITAL PRODUCT at the time of its first use within this 38 state. The value of [such] THE TANGIBLE PERSONAL property OR DIGITAL 39 PRODUCT, for compensating use tax purposes, may not exceed its cost. 40 (2) That the compensating use tax on such tangible personal property 41 OR DIGITAL PRODUCT brought into this state (other than for complete 42 consumption or for incorporation into real property located in this 43 state) and used in the performance of a contract or sub-contract within 44 this state by a purchaser or user for a period of less than six months 45 may be based, at the option of the taxpayer, on the fair rental value of 46 such TANGIBLE PERSONAL property OR DIGITAL PRODUCT for the period of use 47 within this state. 48 S 41. Subdivision (l) of section 1111 of the tax law, as added by 49 section 10 of part S of chapter 85 of the laws of 2002, is amended to 50 read as follows: 51 (l) (1) Receipts from the sale of mobile telecommunications service 52 provided by a home service provider shall include "charges for mobile 53 telecommunications services." Such term shall mean any charge by a home 54 service provider to its mobile telecommunications customer for (A) 55 commercial mobile radio service, and shall include property [and], 56 services AND DIGITAL PRODUCTS that are ancillary to the provision of S. 60--A 139 A. 160--A 1 commercial mobile radio service (such as dial tone, voice service, 2 directory information, call forwarding, caller-identification and call- 3 waiting), and (B) any service [and], property OR DIGITAL PRODUCT 4 provided therewith. 5 (2) With respect to services [or], property OR DIGITAL PRODUCTS 6 described in subparagraph (B) of paragraph one of this subdivision, 7 internet access service, any mobile telecommunications service which the 8 mobile telecommunications customer originates in a foreign country to 9 the extent included in the fixed periodic charge, any interstate or 10 international telephony or telegraphy or telephone or telegraph service 11 of whatever nature which is not a voice service, and any property, 12 DIGITAL PRODUCT or service which is not telephony or telegraphy or tele- 13 phone or telegraph service of whatever nature, a home service provider 14 shall collect and pay over tax, and a mobile telecommunications customer 15 shall pay such tax, on receipts from any charge that is aggregated with 16 and not separately stated from other charges for mobile telecommuni- 17 cations service. Provided, however, if such home service provider uses 18 an objective, reasonable and verifiable standard for identifying each of 19 the components of the charge for mobile telecommunications service, then 20 such home service provider may separately account for and quantify the 21 amount of each such component charge. If a home service provider chooses 22 to so separately account for and quantify and separately sells any such 23 property, DIGITAL PRODUCT or service, then the charge for such property, 24 DIGITAL PRODUCT or service shall be based upon the price for such prop- 25 erty, DIGITAL PRODUCT or service as separately sold. If a home service 26 provider chooses to so separately account for and quantify and does not 27 separately sell such property, DIGITAL PRODUCT or service, then the 28 charge for such property, DIGITAL PRODUCT or service shall be based upon 29 the prevailing retail price of comparable property, DIGITAL PRODUCT or 30 service sold separately by other home service providers. In any case, 31 the charge for such property, DIGITAL PRODUCT or service shall be 32 reasonable and proportionate to the total charge to the mobile telecom- 33 munications customer. Such charges for such services [or], property OR 34 DIGITAL PRODUCTS, as the case may be, will not constitute receipts from 35 charges for mobile telecommunications services subject to tax under 36 subdivision (b) of section eleven hundred five of this article. Nothing 37 herein shall be construed to exempt from tax or subject to tax any such 38 service [or], property OR DIGITAL PRODUCT otherwise subject to tax or 39 exempt from tax under this article. 40 (3) (A) Any charge for a service [or], property OR DIGITAL PRODUCT 41 billed by or for a mobile telecommunications customer's home service 42 provider shall be deemed to be provided by such mobile telecommuni- 43 cations customer's home service provider. 44 (B) Charges for mobile telecommunications service that are provided or 45 deemed to be provided by a mobile telecommunications customer's home 46 service provider shall be sourced to the taxing jurisdiction where the 47 mobile telecommunications customer's place of primary use is located, 48 regardless of where the mobile telecommunications service originates, 49 terminates or passes through. 50 S 42. Subdivision (a) of section 1112 of the tax law, as added by 51 section 6 of part K of chapter 61 of the laws of 2005, is amended to 52 read as follows: 53 (a) Where TANGIBLE PERSONAL property, DIGITAL PRODUCTS or services 54 subject to sales or compensating use tax have been purchased on or from 55 a qualified Indian reservation, as defined in section four hundred 56 seventy of this chapter, the purchaser shall not be relieved of his or S. 60--A 140 A. 160--A 1 her liability to pay the tax due. Such tax due and not collected shall 2 be paid by the purchaser directly to the department. 3 S 43. The opening paragraph of subdivision (a) of section 1115 of the 4 tax law, as added by chapter 93 of the laws of 1965, is amended to read 5 as follows: 6 Receipts from the following shall be exempt from the tax on retail 7 sales imposed under [subdivision] SUBDIVISIONS (a) AND (G) of section 8 eleven hundred five OF THIS ARTICLE and the compensating use tax imposed 9 under section eleven hundred ten OF THIS ARTICLE: 10 S 44. Clause (A) of paragraph 6 of subdivision (a) of section 1115 of 11 the tax law, as amended by section 5 of part B of chapter 63 of the laws 12 of 2000, is amended to read as follows: 13 (A) Tangible personal property OR A DIGITAL PRODUCT, whether or not 14 incorporated in a building or structure, for use or consumption predomi- 15 nantly either in the production for sale of tangible personal property 16 by farming or in a commercial horse boarding operation, or in both. 17 S 45. Paragraph 7 of subdivision (a) of section 1115 of the tax law, 18 as added by chapter 93 of the laws of 1965, is amended to read as 19 follows: 20 (7) Tangible personal property OR A DIGITAL PRODUCT sold by a morti- 21 cian, undertaker or funeral director. However, all tangible personal 22 property OR DIGITAL PRODUCTS sold to a mortician, undertaker or funeral 23 director for use in the conducting of funerals shall not be deemed a 24 sale for resale within the meaning of paragraph [(4)] FOUR of subdivi- 25 sion (b) of section eleven hundred one of this [chapter] ARTICLE and 26 shall not be exempt from the retail sales tax. 27 S 46. Paragraph 8 of subdivision (a) of section 1115 of the tax law, 28 as added by chapter 93 of the laws of 1965, is amended to read as 29 follows: 30 (8) Commercial vessels primarily engaged in interstate or foreign 31 commerce and TANGIBLE PERSONAL property OR DIGITAL PRODUCTS used by or 32 purchased for the use of such vessels for fuel, provisions, supplies, 33 maintenance and repairs (other than articles purchased for the original 34 equipping of a new ship). 35 S 47. Paragraph 10 of subdivision (a) of section 1115 of the tax law, 36 as amended by chapter 851 of the laws of 1974, is amended to read as 37 follows: 38 (10) Tangible personal property OR A DIGITAL PRODUCT purchased for use 39 or consumption directly and predominantly in research and development in 40 the experimental or laboratory sense. Such research and development 41 shall not be deemed to include the ordinary testing or inspection of 42 materials or products for quality control, efficiency surveys, manage- 43 ment studies, consumer surveys, advertising, promotions or research in 44 connection with literary, historical or similar projects. 45 S 48. Paragraph 12-a of subdivision (a) of section 1115 of the tax 46 law, as added by section 7 of part S of chapter 63 of the laws of 2000, 47 is amended to read as follows: 48 (12-a) Tangible personal property OR A DIGITAL PRODUCT for use or 49 consumption directly and predominantly in the receiving, initiating, 50 amplifying, processing, transmitting, retransmitting, switching or moni- 51 toring of switching of telecommunications services for sale or internet 52 access services for sale or any combination thereof. Such tangible 53 personal property OR A DIGITAL PRODUCT exempt under this subdivision 54 shall include, but not be limited to, tangible personal property OR A 55 DIGITAL PRODUCT used or consumed to upgrade systems to allow for the 56 receiving, initiating, amplifying, processing, transmitting, retransmit- S. 60--A 141 A. 160--A 1 ting, switching or monitoring of switching of telecommunications 2 services for sale or internet access services for sale or any combina- 3 tion thereof. As used in this paragraph, the term "telecommunications 4 services" shall have the same meaning as defined in paragraph (g) of 5 subdivision one of section one hundred eighty-six-e of this chapter. 6 S 49. Paragraph 21 of subdivision (a) of section 1115 of the tax law, 7 as added by chapter 773 of the laws of 1978, is amended to read as 8 follows: 9 (21) Commercial aircraft primarily engaged in intrastate, interstate 10 or foreign commerce, machinery or equipment to be installed on such 11 aircraft and property OR A DIGITAL PRODUCTS used by or purchased for the 12 use of such aircraft for maintenance and repairs and flight simulators 13 purchased by commercial airlines. 14 S 50. Paragraph 24 of subdivision (a) of section 1115 of the tax law, 15 as added by chapter 799 of the laws of 1985, is amended to read as 16 follows: 17 (24) Fishing vessels used directly and predominantly in the harvesting 18 of fish for sale, and property OR DIGITAL PRODUCTS used by or purchased 19 for the use of such vessels for fuel, provisions, supplies, maintenance 20 and repairs. For the purpose of this paragraph the term fishing vessel 21 shall not include any vessel used predominantly for sport fishing 22 purposes. 23 S 51. Paragraph 28 of subdivision (a) of section 1115 of the tax law, 24 as added by chapter 166 of the laws of 1991, is amended to read as 25 follows: 26 (28) Computer software designed and developed by the author or creator 27 to the specifications of a specific purchaser which is transferred 28 directly or indirectly to a corporation which is a member of an affil- 29 iated group of corporations [within the meaning of subparagraph six of 30 paragraph (b) of subdivision seventeen of section two hundred eight of 31 this chapter except for clauses (ii) and (iii) of such subparagraph] 32 that includes such purchaser, or to a partnership in which such purchas- 33 er and other members of such affiliated group have at least a fifty 34 percent capital or profits interest (but only if the transfer is not in 35 pursuance of a plan having as its principal purpose the avoidance or 36 evasion of tax under this article), but in no case including computer 37 software which is pre-written, as defined in paragraph six of subdivi- 38 sion (b) of section eleven hundred one of this article and available to 39 be sold to customers in the ordinary course of the seller's business. 40 "AFFILIATED GROUP" HAS THE SAME MEANING THAT TERM HAS IN SECTION 1504 OF 41 THE INTERNAL REVENUE CODE, EXCEPT THAT REFERENCES TO "AT LEAST EIGHTY 42 PERCENT" IN THAT SECTION MUST BE READ AS "MORE THAN FIFTY PERCENT." 43 S 52. Paragraph 35 of subdivision (a) of section 1115 of the tax law, 44 as amended by section 1 of part HH of chapter 407 of the laws of 1999, 45 is amended to read as follows: 46 (35) Computer system hardware used or consumed directly and predomi- 47 nantly in designing and developing computer software OR DIGITAL PRODUCTS 48 for sale or in providing the service, for sale, of designing and devel- 49 oping internet websites. 50 S 53. Paragraph 38 of subdivision (a) of section 1115 of the tax law, 51 as added by section 1 of part T of chapter 63 of the laws of 2000, is 52 amended to read as follows: 53 (38) (A) Machinery or equipment or other tangible personal property 54 (including parts, tools and supplies) OR A DIGITAL PRODUCT for use or 55 consumption by a broadcaster directly and predominantly in the 56 production (including post-production) of live or recorded programs S. 60--A 142 A. 160--A 1 which are used or consumed by a broadcaster predominantly for the 2 purpose of broadcast over-the-air by such broadcaster or transmission 3 through a cable television or direct broadcast satellite system by such 4 broadcaster. Tangible personal property OR A DIGITAL PRODUCT, which is 5 described in the preceding sentence, and which is leased by a broadcast- 6 er to another person for that person's use or consumption directly and 7 predominantly in the production (including post-production) of such live 8 or recorded programs by such person, shall be deemed to be used or 9 consumed by the lessor for purposes of applying the directly and predom- 10 inantly requirement of this subparagraph. 11 (B) Machinery or equipment or other tangible personal property 12 (including parts, tools and supplies) OR A DIGITAL PRODUCT for use or 13 consumption by a broadcaster directly and predominantly in the trans- 14 mission of live or recorded programs over-the-air or through a cable 15 television or direct broadcast satellite system by such broadcaster. 16 Tangible personal property OR A DIGITAL PRODUCT, which is described in 17 the preceding sentence, and which is leased by a broadcaster to another 18 person for that person's use or consumption directly and predominantly 19 in the transmission of such live or recorded programs by such person, 20 shall be deemed to be used or consumed by the lessor for purposes of 21 applying the directly and predominantly requirement of this subpara- 22 graph. 23 (C) For purposes of this paragraph: (i) the term "broadcaster" means a 24 television or radio station licensed by the federal communications 25 commission, a television or radio broadcast network or a cable tele- 26 vision network. The term "television or radio broadcast network" means 27 an organization which produces and/or purchases programs intended for 28 transmission by affiliated television or radio stations licensed by the 29 federal communications commission and which has distribution facilities 30 or circuits available to such affiliated stations during all or some 31 portion of one or more days during each week. The term "cable television 32 network" means an organization which produces and/or purchases programs 33 intended for transmission either by direct broadcast satellite systems 34 or by cable systems pursuant to an affiliation or similar agreement and 35 which has distribution facilities or circuits available to such direct 36 broadcast satellite systems or such cable systems during all or some 37 portion of one or more days during each week. For the purpose of 38 subparagraph (B) of this paragraph, the term "broadcaster" shall not 39 include cable system operators and direct broadcast satellite system 40 operators. Provided, however, for the purpose of subparagraph (A) of 41 this paragraph, such term shall also include a cable system operator or 42 a direct broadcast satellite system operator solely with respect to 43 machinery or equipment or other tangible personal property (including 44 parts, tools and supplies) OR A DIGITAL PRODUCT for use or consumption 45 by it directly and predominantly in the production (including post-pro- 46 duction) of live or recorded programs intended for transmission to its 47 viewers over its system; (ii) the term "programs" means any performance, 48 event, play, story or literary, musical, artistic or other work used for 49 entertainment or educational purposes, including but not limited to 50 news, news specials, sporting events, game shows, talk shows and commer- 51 cials; and (iii) the term "recorded programs" means any program 52 contained on film, tape, disc or any other [physical] media. 53 S 54. Paragraph 39 of subdivision (a) of section 1115 of the tax law, 54 as added by chapter 66 of the laws of 2002, is amended to read as 55 follows: S. 60--A 143 A. 160--A 1 (39) Tangible personal property OR A DIGITAL PRODUCT for use or 2 consumption directly and predominantly in the production, including 3 editing, dubbing and mixing, of a film for sale regardless of the medium 4 by means of which the film is conveyed to a purchaser. For purposes of 5 this paragraph, the term "film" means feature films, documentary films, 6 shorts, television films, television commercials and similar 7 productions. 8 S 55. Subdivision (d) of section 1115 of the tax law, as amended by 9 chapter 190 of the laws of 1990, is amended to read as follows: 10 (d) Services otherwise taxable under paragraph [(1), (2), (3), (7) or 11 (8)] ONE, TWO, THREE, SEVEN OR EIGHT of subdivision (c) of section elev- 12 en hundred five OF THIS ARTICLE shall be exempt from tax under this 13 article if the tangible property OR DIGITAL PRODUCT upon which the 14 services were performed is delivered to the purchaser outside this state 15 for use outside this state. 16 S 56. Subdivision (l) of section 1115 of the tax law, as added by 17 chapter 185 of the laws of 1987, is amended to read as follows: 18 (l) Tangible personal property OR A DIGITAL PRODUCT manufactured, 19 processed or assembled and donated by the manufacturer, processor or 20 assembler to an organization described in subdivision (a) of section 21 eleven hundred sixteen shall be exempt from tax under this article 22 provided that the manufacturer, processor or assembler offers the same 23 kind of tangible personal property OR DIGITAL PRODUCT for sale in the 24 regular course of business and provided further that the manufacturer, 25 processor or assembler has not made any other use of the tangible 26 personal property OR DIGITAL PRODUCT which is donated. Nothing in this 27 subdivision shall be construed to allow a refund or credit of tax prop- 28 erly paid pursuant to this article. 29 S 57. Paragraph 7 of subdivision (n) of section 1115 of the tax law, 30 as added by chapter 220 of the laws of 2000, is amended to read as 31 follows: 32 (7) Mechanicals, layouts, artwork, photographs, color separations and 33 like property, WHETHER OR NOT IN TANGIBLE FORM, shall be exempt from tax 34 under this article where such property is purchased, manufactured, proc- 35 essed or assembled by a person who furnishes such property to a printer 36 and the printer uses such property directly and predominantly in the 37 production of promotional materials exempt under paragraph four of this 38 subdivision, or in performing services exempt under paragraph five of 39 this subdivision, for sale by such printer to the person who furnished 40 such property to the printer. 41 S 58. Paragraph 8 of subdivision (n) of section 1115 of the tax law, 42 as added by chapter 309 of the laws of 1996 and as renumbered by chapter 43 220 of the laws of 2000, is amended to read as follows: 44 (8) Nothing in this subdivision shall be construed to exempt tangible 45 personal property OR A DIGITAL PRODUCT (i) purchased by a person (other 46 than exempt promotional materials described in paragraph four of this 47 subdivision) or (ii) manufactured, processed or assembled by the 48 manufacturer, processor or assembler, who furnishes such TANGIBLE 49 PERSONAL property OR DIGITAL PRODUCT to the vendor of promotional mate- 50 rials exempt under paragraph one or four of this subdivision to be 51 included as free gifts with such exempt promotional materials to be 52 mailed or shipped to such purchaser's or such manufacturer's, process- 53 or's or assembler's customers or prospective customers or who otherwise 54 uses such TANGIBLE PERSONAL property OR DIGITAL PRODUCT in this state, 55 for example, by giving or donating the property as free gifts to another 56 person, unless such tangible personal property OR DIGITAL PRODUCT is S. 60--A 144 A. 160--A 1 mailed, shipped or otherwise distributed from a point within this state 2 to such customers or prospective customers located outside this state 3 for use outside this state. 4 S 59. Subdivision (o) of section 1115 of the tax law, as added by 5 chapter 166 of the laws of 1991, is amended to read as follows: 6 (o) Services otherwise taxable under subdivision (c) of section eleven 7 hundred five or under section eleven hundred ten OF THIS ARTICLE shall 8 be exempt from tax under this article where performed on computer soft- 9 ware of any nature; provided, however, that where such services are 10 provided to a customer in conjunction with the sale of tangible personal 11 property OR A DIGITAL PRODUCT, any charge for such services shall be 12 exempt only when such charge is reasonable and separately stated on an 13 invoice or other statement of the price given to the purchaser. 14 S 60. Subdivision (x) of section 1115 of the tax law, as added by 15 section 3 of part C of chapter 407 of the laws of 1999, is amended to 16 read as follows: 17 (x) Receipts from every sale of, and consideration given or contracted 18 to be given for, or for the use of, the following tangible personal 19 property, DIGITAL PRODUCTS and services shall be exempt from the taxes 20 imposed by this article: 21 (1) Tangible personal property OR A DIGITAL PRODUCT for use or 22 consumption directly and predominantly in production of live dramatic or 23 musical arts performances in a theater or other similar place of assem- 24 bly (but not including a roof garden, cabaret or other similar place), 25 with a seating capacity of one hundred or more chairs that are rigidly 26 anchored to the construction or fixed in place so as to prevent movement 27 in any direction, but only where it can be shown at the time [such] THE 28 tangible personal property OR DIGITAL PRODUCT is purchased that such 29 performances are to be presented to the public in such theater or other 30 similar place on a regular basis of at least five performances per week 31 for a period of at least two consecutive weeks, the content of each such 32 performance shall be the same and a charge is or is to be made for 33 admission to the place where such performances occur. For purposes of 34 this subdivision, the term "place of assembly" shall mean a place of 35 assembly with a stage in which scenery and scenic elements are used, as 36 described in section 27-232 and subdivision (a) of section 27-255 of the 37 administrative code of the city of New York (as such section and subdi- 38 vision [exist] EXISTED on January first, nineteen hundred ninety-eight), 39 and for which an approved seating plan is required to be kept, as 40 described in section 27-528 of the administrative code of the city of 41 New York (as such section [exists] EXISTED on January first, nineteen 42 hundred ninety-eight), whether or not such theater or other similar 43 place is located in such city. Nothing in this paragraph shall be 44 construed to exempt tangible personal property which is permanently 45 affixed to, or becomes an integral component part of, a structure, 46 building, or real property. 47 (2) Services described in paragraph two or three of subdivision (c) of 48 section eleven hundred five of this article when rendered with respect 49 to TANGIBLE PERSONAL property OR A DIGITAL PRODUCT exempt under para- 50 graph one of this subdivision. 51 S 61. Paragraph 1 of subdivision (z) of section 1115 of the tax law, 52 as amended by section 17 of part CC of chapter 85 of the laws of 2002, 53 is amended to read as follows: 54 (1) Receipts from the retail sale of tangible personal property 55 described in subdivision (a) of section eleven hundred five of this 56 article, receipts from every sale of services described in subdivisions S. 60--A 145 A. 160--A 1 (b) and (c) of such section [eleven hundred five], RECEIPTS FROM THE 2 RETAIL SALE OF PRE-WRITTEN COMPUTER SOFTWARE, WHETHER SUBJECT TO TAX 3 UNDER SUBDIVISION (A) OR (G) OF SUCH SECTION, and consideration given or 4 contracted to be given for, or for the use of, such tangible personal 5 property [or], services [shall be] OR PRE-WRITTEN COMPUTER SOFTWARE ARE 6 exempt from the taxes imposed by this article where such tangible 7 personal property [or], services OR PRE-WRITTEN COMPUTER SOFTWARE are 8 sold to a qualified empire zone enterprise, provided that (i) such 9 TANGIBLE PERSONAL property or TANGIBLE PERSONAL property upon which such 10 a service has been performed, or such service (other than a service 11 described in subdivision (b) of section eleven hundred five OF THIS 12 ARTICLE) OR THE PRE-WRITTEN COMPUTER SOFTWARE is directly and predomi- 13 nantly, or such a service described in clause (A) or (D) of paragraph 14 one of such subdivision (b) of section eleven hundred five is directly 15 and exclusively, used or consumed by such enterprise in an area desig- 16 nated as an empire zone pursuant to article eighteen-B of the general 17 municipal law with respect to which such enterprise is certified pursu- 18 ant to such article eighteen-B, or (ii) such a service described in 19 clause (B) or (C) of paragraph one of such subdivision (b) of section 20 eleven hundred five is delivered and billed to such enterprise at an 21 address in such empire zone; provided, further, that, in order for a 22 motor vehicle, as defined in subdivision (c) of section eleven hundred 23 seventeen of this [article] PART, or tangible personal property related 24 to such a motor vehicle to be found to be used predominantly in such a 25 zone, at least fifty percent of such motor vehicle's use shall be exclu- 26 sively within such zone or at least fifty percent of such motor vehi- 27 cle's use shall be in activities originating or terminating in such 28 zone, or both; and either or both such usages shall be computed either 29 on the basis of mileage or hours of use, at the discretion of such 30 enterprise. For purposes of this subdivision, tangible personal property 31 related to such a motor vehicle shall include a battery, diesel motor 32 fuel, an engine, engine components, motor fuel, a muffler, tires and 33 similar tangible personal property used in or on such a motor vehicle. 34 S 62. Paragraph 1 of subdivision (a) of section 1116 of the tax law, 35 as amended by chapter 530 of the laws of 1976, is amended to read as 36 follows: 37 (1) The state of New York, or any of its agencies, instrumentalities, 38 public corporations (including a public corporation created pursuant to 39 agreement or compact with another state or Canada) or political subdivi- 40 sions where it is the purchaser, user or consumer, or where it is a 41 vendor of services, DIGITAL PRODUCTS or property of a kind not ordinar- 42 ily sold by private persons; 43 S 63. Paragraph 2 of subdivision (a) of section 1116 of the tax law, 44 as amended by chapter 530 of the laws of 1976, is amended to read as 45 follows: 46 (2) The United States of America, and any of its agencies and instru- 47 mentalities, insofar as it is immune from taxation where it is the 48 purchaser, user or consumer, or where it sells services, DIGITAL 49 PRODUCTS or property of a kind not ordinarily sold by private persons; 50 S 64. Paragraph 3 of subdivision (a) of section 1116 of the tax law, 51 as amended by chapter 530 of the laws of 1976, is amended to read as 52 follows: 53 (3) The United Nations or any international organization of which the 54 United States of America is a member where it is the purchaser, user or 55 consumer, or where it sells services, DIGITAL PRODUCTS or property of a 56 kind not ordinarily sold by private persons; S. 60--A 146 A. 160--A 1 S 65. Paragraph 9 of subdivision (a) of section 1116 of the tax law, 2 as amended by chapter 591 of the laws of 2005, is amended to read as 3 follows: 4 (9) A credit union, as defined in subdivision nine of section two of 5 the banking law, where it is the purchaser, user, or consumer, or where 6 it is a vendor of services, DIGITAL PRODUCTS or property of a kind not 7 ordinarily sold by private persons. 8 S 66. Subdivision (b) of section 1116 of the tax law, as amended by 9 chapter 888 of the laws of 1983, paragraph 1 as amended by section 1 of 10 part KK-1 of chapter 57 of the laws of 2008, paragraph 5 as amended by 11 chapter 619 of the laws of 1995, paragraph 6 as added by chapter 2 of 12 the laws of 1995 and paragraph 7 as added by chapter 387 of the laws of 13 1996, is amended to read as follows: 14 (b) Nothing in this section shall exempt: 15 (1) (i) retail sales of tangible personal property OR DIGITAL PRODUCTS 16 by any shop or store operated by an organization described in paragraph 17 [(4), (5) or (6)] FOUR, FIVE OR SIX of subdivision (a) of this section; 18 (ii) sales, other than for resale, of services described in subdivision 19 (b) or paragraph five of subdivision (c) of section eleven hundred five 20 of this article by that organization, whether or not at a shop or store; 21 (iii) retail sales of tangible personal property OR DIGITAL PRODUCTS and 22 sales, other than for resale, of those services by that organization, 23 made with a degree of regularity, frequency, and continuity by remote 24 means, such as by telephone, the internet, mail order or otherwise; or 25 (iv) retail sales of tangible personal property OR DIGITAL PRODUCTS by 26 lease or rental by that organization as lessor, whether or not at a shop 27 or store; 28 (2) sales of food or drink in or by a restaurant, tavern or other 29 establishment operated by an organization described in paragraph [(1)] 30 ONE, paragraph [(4)] FOUR, paragraph [(5)] FIVE or paragraph [(6)] SIX 31 of subdivision (a) of this section, other than sales exempt under para- 32 graph (ii) of subdivision (d) of section eleven hundred five OF THIS 33 ARTICLE, from the taxes imposed hereunder, unless the purchaser is an 34 organization exempt under this section; 35 (3) sales of the service of providing parking, garaging or storing for 36 motor vehicles by an organization described in paragraph [(4)] FOUR or 37 paragraph [(5)] FIVE of subdivision (a) of this section operating a 38 garage (other than a garage which is part of premises occupied solely as 39 a private one or two family dwelling), parking lot or other place of 40 business engaged in providing parking, garaging or storing for motor 41 vehicles; [or] 42 (4) sales of tangible personal property, DIGITAL PRODUCTS or services 43 by cooperative and foreign corporations doing business in this state 44 pursuant to the rural electric cooperative law, unless the purchaser is 45 an organization exempt under this section[.]; 46 (5) purchases of motor fuel or diesel motor fuel from the tax required 47 to be prepaid pursuant to section eleven hundred two of this article and 48 retail sales of motor fuel or diesel motor fuel subject to the tax 49 imposed by sections eleven hundred five and eleven hundred ten of this 50 article, except that purchases of such fuel by an organization described 51 in paragraph one or two of subdivision (a) of this section for its own 52 use or consumption, purchases of motor fuel by a hospital included in 53 the organizations described in paragraph four of such subdivision for 54 its own use and consumption, purchases of motor fuel and diesel motor 55 fuel by a fire company or fire department, as defined in section three 56 of the volunteer firefighters' benefit law or a voluntary ambulance S. 60--A 147 A. 160--A 1 service, as defined in section three thousand one of the public health 2 law, for such department, company or service's own use and consumption 3 for use in firefighting vehicles, apparatus or equipment, or emergency 4 rescue or first aid response vehicles, apparatus or equipment, owned and 5 operated by such department, company or service if such company, depart- 6 ment or service qualifies as an exempt organization pursuant to the 7 provisions of paragraph four of subdivision (a) of this section and 8 purchases of diesel motor fuel by an organization described in paragraph 9 four of such subdivision for its own heating use and consumption shall 10 be exempt from such tax required to be prepaid and from retail sales and 11 use taxes on such fuel[.]; 12 (6) purchases of cigarettes from the tax required to be prepaid pursu- 13 ant to section eleven hundred three of this article, except that no 14 prepayment of tax shall be required on sales of cigarettes sold under 15 such circumstances that this state is without power to impose such tax 16 or sold to the United States or sold to or by a voluntary unincorporated 17 organization of the armed forces of the United States operating a place 18 for sale of goods pursuant to regulations promulgated by the appropriate 19 executive agency of the United States, to the extent provided in such 20 regulations and written policy statements of such agency applicable to 21 such sales[.]; OR 22 (7) rent received by a hotel operated by a college or university, 23 where such hotel offers one hundred or more rooms for occupancy, and 24 where the individual paying said rent is not doing business on behalf of 25 any organization exempted pursuant to subdivision (a) of this section. 26 S 67. Subdivision 2 of section 1118 of the tax law, as amended by 27 chapter 651 of the laws of 1999, is amended to read as follows: 28 (2) In respect to the use of TANGIBLE PERSONAL property, DIGITAL 29 PRODUCTS or services purchased by the user while a nonresident of this 30 state, except in the case of tangible personal property or services 31 which the user, in the performance of a contract, incorporates into real 32 property located in the state. A person while engaged in any manner in 33 carrying on in this state any employment, trade, business or profession, 34 shall not be deemed a nonresident with respect to the use in this state 35 of TANGIBLE PERSONAL property, DIGITAL PRODUCTS or services in such 36 employment, trade, business or profession. 37 S 68. Subdivision 3 of section 1118 of the tax law, as amended by 38 chapter 286 of the laws of 1985, is amended to read as follows: 39 (3) In respect to the use of TANGIBLE PERSONAL property, DIGITAL 40 PRODUCTS or services upon the sale of which the purchaser would be 41 expressly exempt from the taxes imposed under subdivision (a), (b) [or], 42 (c) OR (G) of section eleven hundred five OF THIS ARTICLE. In respect 43 to the use of TANGIBLE PERSONAL property to the extent that it is exempt 44 from the sales tax under subdivision (g) of section eleven hundred elev- 45 en of this article. 46 S 69. Subdivision 4 of section 1118 of the tax law, as added by chap- 47 ter 93 of the laws of 1965, is amended to read as follows: 48 (4) In respect to the use of TANGIBLE PERSONAL property OR A DIGITAL 49 PRODUCT which is converted into or becomes a component part of a product 50 produced for sale by the purchaser. 51 S 70. Paragraph (a) of subdivision 7 of section 1118 of the tax law, 52 as amended by chapter 300 of the laws of 1967, is amended to read as 53 follows: 54 (a) In respect to the use of TANGIBLE PERSONAL property, A DIGITAL 55 PRODUCT or services to the extent that a retail sales or use tax was 56 legally due and paid thereon, without any right to a refund or credit S. 60--A 148 A. 160--A 1 thereof, to any other state or jurisdiction within any other state but 2 only when it is shown that such other state or jurisdiction allows a 3 corresponding exemption with respect to the sale or use of tangible 4 personal property, DIGITAL PRODUCTS or services upon which such a sales 5 tax or compensating use tax was paid to this state. To the extent that 6 the tax imposed by this article is at a higher rate than the rate of tax 7 in the first taxing jurisdiction, this exemption shall be inapplicable 8 and the tax imposed by section eleven hundred ten of this [chapter] 9 ARTICLE shall apply to the extent of the difference in such rates, 10 except as provided in paragraph (b) of this subdivision. 11 S 71. Section 1118 of the tax law is amended by adding a new subdivi- 12 sion 13 to read as follows: 13 (13) IN RESPECT TO THE USE IN THIS STATE OF A DIGITAL PRODUCT, OTHER 14 THAN COMPUTER SOFTWARE DESCRIBED IN PARAGRAPH ELEVEN OF THIS SUBDIVI- 15 SION, BEFORE THE EFFECTIVE DATE OF A CHAPTER OF THE LAWS OF TWO THOUSAND 16 NINE THAT ADDED THIS SUBDIVISION. 17 S 72. Subdivision (a) of section 1119 of the tax law, as amended by 18 chapter 686 of the laws of 1986 and as further amended by section 15 of 19 part GG of chapter 63 of the laws of 2000, is amended to read as 20 follows: 21 (a) Subject to the conditions and limitations provided for herein, a 22 refund or credit shall be allowed for a tax paid pursuant to subdivision 23 (a) of section eleven hundred five or section eleven hundred ten OF THIS 24 ARTICLE (1) on the sale or use of tangible personal property if the 25 purchaser or user, in the performance of a contract, later incorporates 26 that tangible personal property into real property located outside this 27 state, (2) on the sale or use of tangible personal property OR DIGITAL 28 PRODUCTS purchased in bulk, or any portion thereof, which is stored and 29 not used by the purchaser or user within this state if that property is 30 subsequently reshipped by such purchaser or user to a point outside this 31 state for use outside this state, (3) on the sale to or use by a 32 contractor or subcontractor of tangible personal property OR DIGITAL 33 PRODUCTS if that TANGIBLE PERSONAL property OR DIGITAL PRODUCT is used 34 by him OR HER solely in the performance of a pre-existing lump sum or 35 unit price construction contract, (4) on the sale or use within this 36 state of tangible personal property, not purchased for resale, if the 37 use of such property in this state is restricted to fabricating such 38 property (including incorporating it into or assembling it with other 39 tangible personal property), processing, printing or imprinting such 40 property and such property is then shipped to a point outside this state 41 for use outside this state, (5) on the sale to or use by a veterinarian 42 of drugs or medicine if such drugs or medicine are used by such veteri- 43 narian in rendering services, which are exempt pursuant to subdivision 44 (f) of section eleven hundred fifteen of this [chapter] PART, to live- 45 stock or poultry used in the production for sale of tangible personal 46 property by farming or if such drugs or medicine are sold to a person 47 qualifying for the exemption provided for in paragraph [(6)] SIX of 48 subdivision (a) of section eleven hundred fifteen of this [chapter] PART 49 for use by such person on such livestock or poultry, or (6) on the sale 50 of tangible personal property purchased for use in constructing, expand- 51 ing or rehabilitating industrial or commercial real property (other than 52 property used or to be used exclusively by one or more registered 53 vendors primarily engaged in the retail sale of tangible personal prop- 54 erty) located in an area designated as an empire zone pursuant to arti- 55 cle eighteen-B of the general municipal law, but only to the extent that 56 such property becomes an integral component part of the real property. S. 60--A 149 A. 160--A 1 (For the purpose of [clause (3) of the preceding sentence] PARAGRAPH 2 THREE OF THIS SUBDIVISION, the term "pre-existing lump sum or unit price 3 construction contract" shall mean a contract for the construction of 4 improvements to real property under which the amount payable to the 5 contractor or subcontractor is fixed without regard to the costs 6 incurred by him in the performance thereof, and which (i) was irrevoca- 7 bly entered into prior to the date of the enactment of this article or 8 the enactment of a law increasing the rate of tax imposed under this 9 article, or (ii) resulted from the acceptance by a governmental agency 10 of a bid accompanied by a bond or other performance guaranty which was 11 irrevocably submitted prior to such date.) Where the tax on the sale or 12 use of such tangible personal property OR DIGITAL PRODUCT has been paid 13 to the vendor, to qualify for such refund or credit, such tangible 14 personal property OR DIGITAL PRODUCT must be incorporated into real 15 property as required in [clause (1) above] PARAGRAPH ONE OF THIS SUBDI- 16 VISION, reshipped as required in [clause (2) above] PARAGRAPH TWO OF 17 THIS SUBDIVISION, used in the manner described in [clauses (3), (4), (5) 18 and (6) above] PARAGRAPHS THREE, FOUR, FIVE AND SIX OF THIS SUBDIVISION 19 within three years after the date such tax was payable to the [tax 20 commission] COMMISSIONER by the vendor pursuant to section eleven 21 hundred thirty-seven OF THIS ARTICLE. Where the tax on the sale or use 22 of such tangible personal property OR DIGITAL PRODUCT was paid by the 23 applicant for the credit or refund directly to the [tax commission] 24 COMMISSIONER, to qualify for such refund or credit, such tangible 25 personal property OR DIGITAL PRODUCT must be incorporated into real 26 property as required in [clause (1) above] PARAGRAPH ONE OF THIS SUBDI- 27 VISION, reshipped as required in [clause (2) above] PARAGRAPH TWO OF 28 THIS SUBDIVISION, used in the manner described in [clauses (3), (4), (5) 29 and (6) above] PARAGRAPHS THREE, FOUR, FIVE AND SIX OF THIS SUBDIVISION 30 within three years after the date such tax was payable to the [tax 31 commission] COMMISSIONER by such applicant pursuant to this article. An 32 application for a refund or credit pursuant to this section must be 33 filed with [such commission] THE COMMISSIONER within the time provided 34 by subdivision (a) of section eleven hundred thirty-nine OF THIS 35 ARTICLE. Such application shall be in such form as the [tax commission] 36 COMMISSIONER may prescribe. Where an application for credit has been 37 filed, the applicant may immediately take such credit on the return 38 which is due coincident with or immediately subsequent to the time that 39 [he] THE APPLICANT files [his] THE application for credit. However, the 40 taking of the credit on the return shall be deemed to be part of the 41 application for credit and shall be subject to the provisions in respect 42 to applications for credit in section eleven hundred thirty-nine OF THIS 43 ARTICLE as provided in subdivision (e) of such section. With respect to 44 a sale or use described in [clause (3) above] PARAGRAPH THREE OF THIS 45 SUBDIVISION where a pre-existing lump sum or unit price construction 46 contract was irrevocably entered into prior to the date of the enactment 47 of this article or the bid accompanied by the performance guaranty was 48 irrevocably submitted to the governmental agency prior to such date, the 49 purchaser or user shall be entitled to a refund or credit only of the 50 amount by which the tax on such sale or use imposed under this article 51 plus any tax imposed under the authority of article twenty-nine OF THIS 52 CHAPTER exceeds the amount computed by applying against such sale or use 53 the local rate of tax, if any, in effect at the time such contract was 54 entered into or such bid was submitted. 55 In the case of the enactment of a law increasing the rate of tax 56 imposed by this article, the purchaser or user shall be entitled only to S. 60--A 150 A. 160--A 1 a refund or credit of the amount by which the increased tax on such sale 2 or use imposed under this article plus any tax imposed under the author- 3 ity of article twenty-nine OF THIS CHAPTER exceeds the amount computed 4 by applying against such sale or use the state and local rates of tax in 5 effect at the time such contract was entered into or such bid was 6 submitted. 7 S 73. Subdivision (c) of section 1119 of the tax law, as amended by 8 chapter 760 of the laws of 1992, is amended to read as follows: 9 (c) A refund or credit equal to the amount of sales or compensating 10 use tax imposed by this article and pursuant to the authority of article 11 twenty-nine OF THIS CHAPTER, and paid on the sale or use of tangible 12 personal property OR A DIGITAL PRODUCT, shall be allowed the purchaser 13 where [such] THE TANGIBLE PERSONAL property OR DIGITAL PRODUCT is later 14 used by the purchaser in performing a service subject to tax under para- 15 graph [(1), (2), (3), (5), (7) or (8)] ONE, TWO, THREE, FIVE, SEVEN OR 16 EIGHT of subdivision (c) of section eleven hundred five or under section 17 eleven hundred ten OF THIS ARTICLE and such TANGIBLE PERSONAL property 18 has become a physical component part OR, IN THE CASE OF A DIGITAL PROD- 19 UCT, A COMPONENT PART, of the property upon which the service is 20 performed or has been transferred to the purchaser of the service in 21 conjunction with the performance of the service subject to tax or if a 22 contractor, subcontractor or repairman purchases tangible personal prop- 23 erty and later makes a retail sale of such tangible personal property, 24 the acquisition of which would not have been a sale at retail to him but 25 for the second to last sentence of subparagraph (i) of paragraph [(4)] 26 FOUR of subdivision (b) of section eleven hundred one OF THIS ARTICLE. 27 An application for the refund or credit provided for herein must be 28 filed with the commissioner [of taxation and finance] within the time 29 provided by subdivision (a) of section eleven hundred thirty-nine OF 30 THIS ARTICLE. Such application shall be in such form as the commissioner 31 may prescribe. Where an application for credit has been filed, the 32 applicant may immediately take such credit on the return which is due 33 coincident with or immediately subsequent to the time that [he] THE 34 APPLICANT files [his] THE application for credit. However, the taking of 35 the credit on the return shall be deemed to be part of the application 36 for credit. The procedure for granting or denying such applications for 37 refund or credit and review of such determinations shall be as provided 38 in subdivision (e) of section eleven hundred thirty-nine OF THIS 39 ARTICLE. 40 S 74. Subdivision 1 of section 1131 of the tax law, as amended by 41 chapter 576 of the laws of 1994, is amended to read as follows: 42 (1) "Persons required to collect tax" or "person required to collect 43 any tax imposed by this article" shall include: every vendor of tangible 44 personal property, DIGITAL PRODUCTS or services; every recipient of 45 amusement charges; and every operator of a hotel. Said terms shall also 46 include any officer, director or employee of a corporation or of a 47 dissolved corporation, any employee of a partnership, any employee or 48 manager of a limited liability company, or any employee of an individual 49 proprietorship who as such officer, director, employee or manager is 50 under a duty to act for such corporation, partnership, limited liability 51 company or individual proprietorship in complying with any requirement 52 of this article; and any member of a partnership or limited liability 53 company. Provided, however, that any person who is a vendor solely by 54 reason of clause (D) or (E) of subparagraph (i) of paragraph [(8)] EIGHT 55 of subdivision (b) of section eleven hundred one OF THIS ARTICLE shall 56 not be a "person required to collect any tax imposed by this article" S. 60--A 151 A. 160--A 1 until twenty days after the date by which such person is required to 2 file a certificate of registration pursuant to section eleven hundred 3 thirty-four OF THIS PART. 4 S 75. Subdivision 2 of section 1131 of the tax law, as added by chap- 5 ter 93 of the laws of 1965, is amended to read as follows: 6 (2) "Customer" shall include: every purchaser of tangible personal 7 property, DIGITAL PRODUCTS or services; every patron paying or liable 8 for the payment of any amusement charge; and every occupant of a room or 9 rooms in a hotel. 10 S 76. Subdivision 3 of section 1131 of the tax law, as amended by 11 chapter 621 of the laws of 1967, is amended to read as follows: 12 (3) "Tax" shall include any tax imposed by sections eleven hundred 13 five[,] or eleven hundred ten OF THIS ARTICLE, and any amount payable to 14 the [tax commission] COMMISSIONER by a person required to file a return, 15 as provided in section eleven hundred thirty-seven OF THIS PART. 16 S 77. Paragraphs (a), (c), and (d) of subdivision 4 of section 1131 of 17 the tax law, as amended by section 34 of part Y of chapter 63 of the 18 laws of 2000, is amended to read as follows: 19 (a) all property AND DIGITAL PRODUCTS sold to a person within the 20 state, whether or not the sale is made within the state, the use of 21 which property [is] OR DIGITAL PRODUCTS ARE subject to tax under section 22 eleven hundred ten of this article or will become subject to tax when 23 such property [is] OR DIGITAL PRODUCTS ARE received by or [comes] COME 24 into the possession or control of such person within the state; (c) all 25 services rendered to a person within the state, whether or not such 26 services are performed within the state, upon tangible personal property 27 OR DIGITAL PRODUCTS the use of which is subject to tax under section 28 eleven hundred ten of this article or will become subject to tax when 29 [such] THE TANGIBLE PERSONAL property OR DIGITAL PRODUCT is received by 30 or comes into possession or control of such person within the state; (d) 31 all TANGIBLE PERSONAL property OR DIGITAL PRODUCTS sold by a person 32 making sales described in clause (F) of subparagraph (i) of paragraph 33 eight of subdivision (b) of section eleven hundred one of this article 34 to a person described in such clause (F) who purchases [such] THE TANGI- 35 BLE PERSONAL property OR DIGITAL PRODUCT at retail, whether or not the 36 sale is made within the state; 37 S 78. Subdivision 11 of section 1131 of the tax law, as added by chap- 38 ter 170 of the laws of 1994, is amended to read as follows: 39 (11) "Temporary vendor" shall include any person who makes sales of 40 tangible personal property, DIGITAL PRODUCTS or services subject to tax 41 (other than at a show or entertainment event) in not more than two 42 consecutive quarterly periods in any twelve month period, as such quar- 43 terly periods are described in subdivision (b) of section eleven hundred 44 thirty-six of this [article] PART. 45 S 79. Subdivision (e) of section 1132 of the tax law, as amended by 46 section 2-d of part M-1 of chapter 109 of the laws of 2006, is amended 47 to read as follows: 48 (e) The commissioner may provide, by regulation, for the exclusion 49 from taxable receipts, gallons of motor fuel or diesel motor fuel sold, 50 amusement charges or rents of amounts representing sales where the 51 contract of sale has been cancelled, the property OR DIGITAL PRODUCT 52 returned or the receipt, charge or rent has been ascertained to be 53 uncollectible or, in case the tax has been paid upon such receipt, 54 gallons, charge or rent, for refund of or credit for the tax so paid. 55 Where the commissioner provides for a credit for the tax so paid, he or 56 she shall require an application for credit to be filed, but he or she S. 60--A 152 A. 160--A 1 may also allow the applicant to immediately take the credit on the 2 return which is due coincident with or immediately subsequent to the 3 time the applicant files his or her application for credit. However, the 4 taking of the credit on the return shall be deemed to be part of the 5 application for credit and shall be subject to the provisions in respect 6 to applications for credit in section eleven hundred thirty-nine of this 7 part as provided in subdivision (e) of such section. 8 S 80. Paragraph 2 of subdivision (e-1) of section 1132 of the tax law, 9 as added by chapter 664 of the laws of 2006, is amended to read as 10 follows: 11 (2) A vendor shall be considered the vendor of the tangible personal 12 property, DIGITAL PRODUCT or services giving rise to a worthless account 13 even though the TANGIBLE PERSONAL property, DIGITAL PRODUCT or services 14 are sold by a leased department or concession provided all the following 15 conditions are met: 16 (i) the leased department or concession accounts for and pays over all 17 of its receipts to the lessor-vendor; 18 (ii) the lessor-vendor reports and remits to the department the tax on 19 all of the leased department or concession's receipts; and 20 (iii) the transfer of all the receivables from the leased department 21 or concession to the lessor-vendor is made without any discount for any 22 credit transactions which involve the lessor-vendor's receivables and 23 without recourse to the leased department or concession. 24 S 81. Paragraph 1 of subdivision (a) of section 1134 of the tax law, 25 as amended by section 160 of part A of chapter 389 of the laws of 1997, 26 is amended to read as follows: 27 (1) (i) Every person required to collect any tax imposed by this arti- 28 cle, other than a person who is a vendor solely by reason of clause (D), 29 (E) or (F) of subparagraph (i) of paragraph eight of subdivision (b) of 30 section eleven hundred one of this article, commencing business or open- 31 ing a new place of business, (ii) every person purchasing or selling 32 tangible personal property OR DIGITAL PRODUCTS for resale commencing 33 business or opening a new place of business, (iii) every person selling 34 automotive fuel including persons who or which are not distributors, 35 (iv) every person described in this subdivision who takes possession of 36 or pays for business assets under circumstances requiring notification 37 by such person to the commissioner pursuant to subdivision (c) of 38 section eleven hundred forty-one of this [chapter] PART, (v) every 39 person selling cigarettes including persons who or which are not agents, 40 and (vi) every person described in subparagraph (i), (ii), (iii), (iv) 41 or (v) of this paragraph or every person who is a vendor solely by 42 reason of clause (D), (E) or (F) of subparagraph (i) of paragraph eight 43 of subdivision (b) of section eleven hundred one of this article who or 44 which has had its certificate of authority revoked under paragraph four 45 of this subdivision, shall file with the commissioner a certificate of 46 registration, in a form prescribed by the commissioner, at least twenty 47 days prior to commencing business or opening a new place of business or 48 such purchasing, selling or taking of possession or payment, whichever 49 comes first. Every person who is a vendor solely by reason of clause (D) 50 of subparagraph (i) of paragraph eight of subdivision (b) of section 51 eleven hundred one of this article shall file with the commissioner a 52 certificate of registration, in a form prescribed by such commissioner, 53 within thirty days after the day on which the cumulative total number of 54 occasions that such person came into the state to deliver property or 55 services, for the immediately preceding four quarterly periods ending on 56 the last day of February, May, August and November, exceeds twelve. S. 60--A 153 A. 160--A 1 Every person who is a vendor solely by reason of clause (E) of subpara- 2 graph (i) of paragraph eight of subdivision (b) of section eleven 3 hundred one of this article shall file with the commissioner a certif- 4 icate of registration, in a form prescribed by such commissioner, within 5 thirty days after the day on which the cumulative total, for the imme- 6 diately preceding four quarterly periods ending on the last day of 7 February, May, August and November, of such person's gross receipts from 8 sales of property delivered in this state exceeds three hundred thousand 9 dollars and number of such sales exceeds one hundred. Every person who 10 is a vendor solely by reason of clause (F) of subparagraph (i) of para- 11 graph eight of subdivision (b) of section eleven hundred one of this 12 article shall file with the commissioner a certificate of registration, 13 in a form prescribed by such commissioner, within thirty days after the 14 day on which tangible personal property in which such person retains an 15 ownership interest is brought into this state by the person to whom such 16 property is sold, where the person to whom such property is sold becomes 17 or is a resident or uses such property in any manner in carrying on in 18 this state any employment, trade, business or profession. Information 19 with respect to the notice requirements of a purchaser, transferee or 20 assignee and such person's liability pursuant to the provisions of 21 subdivision (c) of section eleven hundred forty-one of this [chapter] 22 PART shall be included in or accompany the certificate of registration 23 form furnished the applicant. The commissioner shall also include with 24 such information furnished to each applicant general information about 25 the tax imposed under this article including information on records to 26 be kept, returns and payments, notification requirements and forms. Such 27 certificate of registration may be amended in accordance with rules 28 promulgated by the commissioner. 29 S 82. Paragraph 3 of subdivision (a) of section 1134 of the tax law, 30 as amended by chapter 2 of the laws of 1995, is amended to read as 31 follows: 32 (3) A person, other than one described in clauses (A), (B), and (C) of 33 subparagraph (i) of paragraph [(8)] EIGHT of subdivision (b) of section 34 eleven hundred one OF THIS ARTICLE, and other than one described in 35 clause (D), (E) or (F) of such subparagraph who is required to file a 36 certificate of registration with the commissioner, but who makes sales 37 to persons within the state of tangible personal property, DIGITAL 38 PRODUCTS or services, the use of which is subject to tax under this 39 article, may if such person so elects file a certificate of registration 40 with the commissioner who may, in the commissioner's discretion and 41 subject to such conditions as the commissioner may impose, issue to such 42 person a certificate of authority to collect the compensating use tax 43 imposed by this article. 44 S 83. Paragraph 3 of subdivision (a) of section 1136 of the tax law, 45 as amended by chapter 2 of the laws of 1995, is amended to read as 46 follows: 47 (3) However, a person required to register with the commissioner as 48 provided in section eleven hundred thirty-four OF THIS PART only because 49 such person is purchasing or selling tangible personal property OR 50 DIGITAL PRODUCTS for resale, and who is not required to collect any tax 51 or pay any tax directly to the commissioner under this article, shall 52 file an information return annually in such form as the commissioner may 53 prescribe. Likewise, a person, who is required to register and who is 54 selling automotive fuel who is not a distributor of motor fuel, shall 55 file an information return quarterly or, if the commissioner deems 56 necessary, monthly, in such form as the commissioner shall prescribe. S. 60--A 154 A. 160--A 1 S 84. Paragraph 4 of subdivision (a) of section 1136 of the tax law, 2 as amended by section 2-e of part M-1 of chapter 109 of the laws of 3 2006, is amended to read as follows: 4 (4) The return of a vendor of tangible personal property, DIGITAL 5 PRODUCTS or services shall show such vendor's receipts from sales and 6 the number of gallons of any motor fuel or diesel motor fuel sold and 7 also the aggregate value of tangible personal property, DIGITAL PRODUCTS 8 and services and number of gallons of such fuels sold by the vendor, the 9 use of which is subject to tax under this article, and the amount of tax 10 payable thereon pursuant to the provisions of section eleven hundred 11 thirty-seven of this part. The return of a recipient of amusement charg- 12 es shall show all such charges and the amount of tax thereon, and the 13 return of an operator required to collect tax on rents shall show all 14 rents received or charged and the amount of tax thereon. 15 S 85. Subdivision (a) of section 1137 of the tax law, as amended by 16 section 2-f of part M-1 of chapter 109 of the laws of 2006, is amended 17 to read as follows: 18 (a) Every person required to file a return under the preceding section 19 whose total taxable receipts (as "taxable receipts" are described in 20 subdivision (a) of such section), amusement charges and rents are 21 subject to the tax imposed pursuant to subdivisions (a), (c), (d), (e) 22 [and], (f) AND (G) of section eleven hundred five of this article shall, 23 at the time of filing such return, pay to the commissioner the total of 24 the following: 25 (i) Four percent of the total of all receipts, amusement charges and 26 rents subject to tax under this article, and if any of such receipts, 27 amusement charges and rents are subject to local tax imposed pursuant to 28 article twenty-nine of this chapter, an additional percentage of the 29 total thereof equal to the percentage rate of such local tax; 30 (ii) All taxes imposed by section eleven hundred ten OF THIS ARTICLE 31 or pursuant to article twenty-nine of this chapter upon such person's 32 use of TANGIBLE PERSONAL property, DIGITAL PRODUCTS or services; 33 (iii) All moneys collected by such person, purportedly as tax imposed 34 by this article or pursuant to article twenty-nine of this chapter, with 35 respect to any receipt, gallon of motor fuel or diesel motor fuel sold, 36 amusement charge or rent not subject to tax, and all moneys collected 37 with respect to any receipt, gallon of such fuel, amusement charge or 38 rent subject to tax, purportedly in accordance with a schedule 39 prescribed by the commissioner but actually in excess of the amount 40 stated in such schedule as the amount to be collected; and 41 (iv) The correct number of cents per gallon of motor fuel and diesel 42 motor fuel sold subject to tax under this article, and, if any of such 43 gallons sold are subject to local tax imposed pursuant to article twen- 44 ty-nine of this chapter, an additional number of cents per gallon sold 45 subject to such local taxes equal to the rates of such taxes. 46 S 86. Paragraph (ii) of subdivision (b) of section 1137 of the tax 47 law, as amended by section 2-f of part M-1 of chapter 109 of the laws of 48 2006, is amended to read as follows: 49 (ii) All taxes imposed by section eleven hundred ten OF THIS ARTICLE 50 or pursuant to article twenty-nine of this chapter upon such person's 51 use of TANGIBLE PERSONAL property, DIGITAL PRODUCTS or services; 52 S 87. Paragraph 1 of subdivision (e) of section 1137 of the tax law, 53 as amended by chapter 95 of the laws of 1976 and such subdivision as 54 relettered by chapter 89 of the laws of 1976, is amended to read as 55 follows: S. 60--A 155 A. 160--A 1 (1) The amount so payable to the [tax commission] COMMISSIONER for the 2 period for which a return is required to be filed shall be due and paya- 3 ble to the [tax commission] COMMISSIONER on the date limited for the 4 filing of the return for such period, without regard to whether a return 5 is filed or whether the return which is filed correctly shows the amount 6 of receipts, amusement charges or rents or the value of property, 7 DIGITAL PRODUCTS or services sold or purchased or the taxes due thereon. 8 S 88. Subparagraph (B) of paragraph 3 of subdivision (a) of section 9 1138 of the tax law, as amended by chapter 456 of the laws of 1998, is 10 amended to read as follows: 11 (B) The liability, pursuant to subdivision (a) of section eleven 12 hundred thirty-three of this article, of any officer, director or 13 employee of a corporation or of a dissolved corporation, member or 14 employee of a partnership or employee of an individual proprietorship 15 who as such officer, director, employee or member is under a duty to act 16 for such corporation, partnership or individual proprietorship in 17 complying with any requirement of this article for the tax imposed, 18 collected or required to be collected, or for the tax required to be 19 paid or paid over to the [tax commission] COMMISSIONER under this arti- 20 cle, and the amount of such tax liability (whether or not a return is 21 filed under this article, whether or not such return when filed is 22 incorrect or insufficient, or where the tax shown to be due on the 23 return filed under this article has not been paid or has not been paid 24 in full) shall be determined by the [tax commission] COMMISSIONER in the 25 manner provided for in paragraphs one and two of this subdivision. Such 26 determination shall be an assessment of the tax and liability for the 27 tax with respect to such person unless such person, within ninety days 28 after the giving of notice of such determination, shall apply to the 29 division of tax appeals for a hearing. If such determination is identi- 30 cal to or arises out of a previously issued determination of tax of the 31 corporation, dissolved corporation, partnership or individual proprie- 32 torship for which such person is under a duty to act, an application 33 filed with the division of tax appeals on behalf of the corporation, 34 dissolved corporation, partnership or individual proprietorship shall be 35 deemed to include any and all subsequently issued personal determi- 36 nations and a separate application to the division of tax appeals for a 37 hearing shall not be required. The [tax commission] COMMISSIONER may, 38 nevertheless, [of its] ON HIS OR HER own motion, redetermine such deter- 39 mination of tax or liability for tax. Where the [tax commission] COMMIS- 40 SIONER determines or redetermines that the amount of tax claimed to be 41 due from a vendor of tangible personal property, DIGITAL PRODUCTS or 42 services, a recipient of amusement charges, or an operator of a hotel is 43 erroneous or excessive in whole or in part, [it] THE COMMISSIONER shall 44 redetermine the amount of tax properly due from any such person as a 45 person required to collect tax with respect to such vendor, recipient, 46 or operator, and if such amount is less than the amount of tax for which 47 such person would have been liable in the absence of such determination 48 or redetermination, [it] THE COMMISSIONER shall reduce such liability 49 accordingly. Furthermore, the [tax commission] COMMISSIONER may, [of 50 its] ON HIS OR HER own motion, abate on behalf of any such person, any 51 part of the tax determined to be erroneous or excessive whether or not 52 such tax had become finally and irrevocably fixed with respect to such 53 person but no claim for abatement may be filed by any such person. The 54 provisions of this paragraph shall not be construed to limit in any 55 manner the powers of the attorney general under subdivision (a) of 56 section eleven hundred forty-one OF THIS PART or the powers of the [tax S. 60--A 156 A. 160--A 1 commission] COMMISSIONER to issue a warrant under subdivision (b) of 2 such section against any person whose liability has become finally and 3 irrevocably fixed. 4 S 89. Subparagraph (i) of paragraph 3 of subdivision (a) of section 5 1145 of the tax law, as amended by chapter 2 of the laws of 1995, is 6 amended to read as follows: 7 (i) Any person required to obtain a certificate of authority under 8 section eleven hundred thirty-four OF THIS PART who, without possessing 9 a valid certificate of authority, (A) sells tangible personal property, 10 DIGITAL PRODUCTS or services subject to tax, receives amusement charges 11 or operates a hotel, (B) purchases or sells tangible personal property 12 OR DIGITAL PRODUCTS for resale, (C) sells automotive fuel, or (D) sells 13 cigarettes shall, in addition to any other penalty imposed by this chap- 14 ter, be subject to a penalty in an amount not exceeding five hundred 15 dollars for the first day on which such sales or purchases are made, 16 plus an amount not exceeding two hundred dollars for each subsequent day 17 on which such sales or purchases are made, not to exceed ten thousand 18 dollars in the aggregate. 19 S 90. Subparagraph (i) of paragraph 1 of subdivision (a) of section 20 1210 of the tax law, as amended by section 4 of part SS-1 of chapter 57 21 of the laws of 2008, is amended to read as follows: 22 (i) Either, all of the taxes described in article twenty-eight of this 23 chapter, at the same uniform rate, as to which taxes all provisions of 24 the local laws, ordinances or resolutions imposing such taxes shall be 25 identical, except as to rate and except as otherwise provided, with the 26 corresponding provisions in such article twenty-eight, including the 27 definition and exemption provisions of such article, so far as the 28 provisions of such article twenty-eight can be made applicable to the 29 taxes imposed by such city or county and with such limitations and 30 special provisions as are set forth in this article. The taxes author- 31 ized under this subdivision may not be imposed by a city or county 32 unless the local law, ordinance or resolution imposes such taxes so as 33 to include all portions and all types of receipts, charges or rents, 34 subject to state tax under sections eleven hundred five and eleven 35 hundred ten of this chapter, except as otherwise provided. Any local 36 law, ordinance or resolution enacted by any city of less than one 37 million or by any county or school district, imposing the taxes author- 38 ized by this subdivision, shall, notwithstanding any provision of law to 39 the contrary, exclude from the operation of such local taxes all sales 40 of tangible personal property OR DIGITAL PRODUCTS for use or consumption 41 directly and predominantly in the production of tangible personal prop- 42 erty, gas, electricity, refrigeration or steam, for sale, by manufactur- 43 ing, processing, generating, assembly, refining, mining or extracting; 44 and all sales of tangible personal property OR DIGITAL PRODUCTS for use 45 or consumption predominantly either in the production of tangible 46 personal property, for sale, by farming or in a commercial horse board- 47 ing operation, or in both; and, unless such city, county or school 48 district elects otherwise, shall omit the provision for credit or refund 49 contained in clause six of subdivision (a) of section eleven hundred 50 nineteen of this chapter. Any local law, ordinance or resolution enacted 51 by any city, county or school district, imposing the taxes authorized by 52 this subdivision, shall omit the residential solar energy systems equip- 53 ment exemption provided for in subdivision (ee), the clothing and foot- 54 wear exemption provided for in paragraph thirty of subdivision (a) and 55 the qualified empire zone enterprise exemptions provided for in subdivi- 56 sion (z) of section eleven hundred fifteen of this chapter, unless such S. 60--A 157 A. 160--A 1 city, county or school district elects otherwise as to either such resi- 2 dential solar energy systems equipment exemption or such clothing and 3 footwear exemption or such qualified empire zone enterprise exemptions; 4 provided that if such a city having a population of one million or more 5 in which the taxes imposed by section eleven hundred seven of this chap- 6 ter are in effect enacts the resolution described in subdivision (k) of 7 this section or repeals such resolution or enacts the resolution 8 described in subdivision (l) of this section or repeals such resolution 9 or enacts the resolution described in subdivision (n) of this section or 10 repeals such resolution, such resolution or repeal shall also be deemed 11 to amend any local law, ordinance or resolution enacted by such a city 12 imposing such taxes pursuant to the authority of this subdivision, 13 whether or not such taxes are suspended at the time such city enacts its 14 resolution pursuant to subdivision (k), (l) or (n) of this section or at 15 the time of any such repeal; provided, further, that any such local law, 16 ordinance or resolution and section eleven hundred seven of this chap- 17 ter, as deemed to be amended in the event a city of one million or more 18 enacts a resolution pursuant to the authority of subdivision (k), (l) or 19 (n) of this section, shall be further amended, as provided in section 20 twelve hundred eighteen of this subpart, so that the residential solar 21 energy systems equipment exemption or the clothing and footwear 22 exemption or the qualified empire zone enterprise exemptions in any such 23 local law, ordinance or resolution or in such section eleven hundred 24 seven are the same, as the case may be, as the residential solar energy 25 systems equipment exemption provided for in subdivision (ee), the cloth- 26 ing and footwear exemption in paragraph thirty of subdivision (a) or the 27 qualified empire zone enterprise exemptions in subdivision (z) of 28 section eleven hundred fifteen of this chapter. 29 S 91. Paragraph 2 of subdivision (l) of section 1210 of the tax law, 30 as amended by section 13 of part GG of chapter 63 of the laws of 2000, 31 is amended to read as follows: 32 (2) Form of Resolution: Be it enacted by the (insert proper title of 33 local legislative body) as follows: 34 Section one. Receipts from sales of and consideration given or 35 contracted to be given for, or for the use of, property, PRE-WRITTEN 36 COMPUTER SOFTWARE and services exempt from state sales and compensating 37 use taxes pursuant to subdivision (z) of section 1115 of the tax law 38 shall also be exempt from sales and compensating use taxes imposed in 39 this jurisdiction. 40 Section two. This resolution shall take effect March 1, (insert the 41 year, but not earlier than the year 2001) and shall apply to sales made, 42 services rendered and uses occurring on and after that date in accord- 43 ance with the applicable transitional provisions in sections 1106, 1216 44 and 1217 of the New York tax law. 45 S 92. Paragraph 2 of subdivision (b) of section 1212-A of the tax law, 46 as amended by chapter 190 of the laws of 1990, is amended to read as 47 follows: 48 (2) However, with respect to a tax imposed under the authority of 49 paragraph three of subdivision (a) of this section a refund or credit 50 equal to the amount of the sale or compensating use tax imposed by 51 section eleven hundred seven of this chapter and paid on the sale or use 52 of tangible personal property OR A DIGITAL PRODUCT which is later used 53 by such purchaser in performing a service subject to tax under such 54 paragraph shall be allowed such purchaser against the tax imposed pursu- 55 ant to such paragraph and collected by such person on the sale of such 56 service if such TANGIBLE PERSONAL property has become a physical compo- S. 60--A 158 A. 160--A 1 nent part OR THE DIGITAL PRODUCT BECOMES A COMPONENT PART of the proper- 2 ty upon which the service is performed or IF SUCH TANGIBLE PERSONAL 3 PROPERTY OR DIGITAL PRODUCT has been transferred to the purchaser of the 4 service in conjunction with the performance of the service subject to 5 tax. 6 S 93. Section 1213 of the tax law, as amended by chapter 651 of the 7 laws of 1999, is amended to read as follows: 8 S 1213. Deliveries outside the jurisdiction where sale is made. Where 9 a sale of tangible personal property, A DIGITAL PRODUCT or services, 10 including prepaid telephone calling services, but not including other 11 services described in subdivision (b) of section eleven hundred five OF 12 THIS CHAPTER, including an agreement therefor, is made in any city, 13 county or school district, but the TANGIBLE PERSONAL property OR DIGITAL 14 PRODUCT sold, the property upon which the services were performed or 15 prepaid telephone calling or other service is or will be delivered to 16 the purchaser elsewhere, such sale shall not be subject to tax by such 17 city, county or school district. However, if delivery occurs or will 18 occur in a city, county or school district imposing a tax on the sale or 19 use of such property, DIGITAL PRODUCT, prepaid telephone calling or 20 other services, the vendor shall be required to collect from the 21 purchaser, as provided in section twelve hundred fifty-four OF THIS 22 ARTICLE, the aggregate sales or compensating use taxes imposed by the 23 city, if any, county and school district in which delivery occurs or 24 will occur, for distribution by the commissioner to such taxing juris- 25 diction or jurisdictions. For the purposes of this section delivery 26 shall be deemed to include transfer of possession to the purchaser and 27 the receiving of the TANGIBLE PERSONAL property or of the service, 28 including prepaid telephone calling service, by the purchaser AND, FOR A 29 DIGITAL PRODUCT, DELIVERY WILL BE DETERMINED IN ACCORDANCE WITH THE 30 RULES IN SUBDIVISION (G) OF SECTION ELEVEN HUNDRED FIVE OF THIS CHAPTER. 31 S 94. Section 1235 of the tax law, as amended by chapter 459 of the 32 laws of 1968, is amended to read as follows: 33 S 1235. Taxes paid to other jurisdictions. (a) With respect to taxes 34 imposed pursuant to subdivision (a) of section twelve hundred ten OF 35 THIS ARTICLE and pursuant to section twelve hundred eleven OF THIS ARTI- 36 CLE, the use of tangible personal property OR A DIGITAL PRODUCT 37 purchased at retail and of any of the services subject to the sales tax 38 shall be exempt from the compensating use tax authorized under subdivi- 39 sion (a) of such section twelve hundred ten and under section twelve 40 hundred eleven OF THIS ARTICLE, to the extent that a retail sales tax or 41 a compensating use tax was legally due and paid thereon, without any 42 right to a refund or credit thereof, to (1) any municipal corporation in 43 this state or (2) any other state or jurisdiction within any other 44 state, but only when it is shown that such other state or jurisdiction 45 allows a corresponding exemption with respect to the sale or use of 46 tangible personal property, A DIGITAL PRODUCT or of any of the services 47 upon which such a sale or compensating use tax was paid to this state 48 and any of its municipal corporations, except as provided in subdivision 49 (b) of this section. 50 (b) To the extent that a compensating use tax imposed pursuant to this 51 article and the compensating use tax imposed by article twenty-eight OF 52 THIS CHAPTER are at a higher aggregate rate than the rate of tax imposed 53 in any other state or jurisdiction within any other state, the exemption 54 provided in subdivision (a) of this section shall be inapplicable and 55 the taxes imposed pursuant to this article and by article twenty-eight 56 OF THIS CHAPTER shall apply to the extent of the difference between such S. 60--A 159 A. 160--A 1 aggregate rate and the rate paid in such other state or jurisdiction. 2 In such event, the amount payable shall be allocated between the tax 3 imposed pursuant to this article and the tax imposed by article twenty- 4 eight OF THIS CHAPTER in proportion to the respective rates of such 5 taxes. Where a retail sales tax or a compensating use tax was legally 6 due and paid to any municipal corporation in this state, without any 7 right to a refund or credit thereof, with respect to the sale or use of 8 tangible personal property, A DIGITAL PRODUCT or any of the services 9 subject to sales or compensating use tax, if the use of such property, 10 DIGITAL PRODUCT or services is then subject to a compensating use tax 11 imposed by any other municipal corporation in this state and such tax is 12 at a higher rate than the rate of tax imposed by the first municipal 13 corporation, the tax of the municipal corporation with the higher rate 14 shall also apply but only to the extent of the difference in such rates 15 and such tax shall be distributable to such municipal corporation, 16 pursuant to section twelve hundred sixty-one OF THIS ARTICLE, without 17 allocation as hereinabove provided. Where a retail sales tax or a 18 compensating use tax was legally due and paid to this state only, with 19 respect to the sale or use of tangible personal property, A DIGITAL 20 PRODUCT or any of the services subject to sales or compensating use tax, 21 if the use of such property, DIGITAL PRODUCT or services is then subject 22 to a compensating use tax imposed by a municipal corporation in this 23 state, such tax shall be distributable to the municipal corporation, 24 pursuant to section twelve hundred sixty-one OF THIS ARTICLE, without 25 allocation as hereinabove provided. 26 (c) For purposes of this section, a payment to the [tax commission] 27 COMMISSIONER of a tax imposed by a municipal corporation shall be deemed 28 a payment to such municipal corporation. 29 S 95. Subdivision (a) of section 1251 of the tax law, as amended by 30 chapter 155 of the laws of 1982, is amended to read as follows: 31 (a) Every person required to collect any of the taxes imposed under 32 the authority of section twelve hundred ten, twelve hundred eleven, 33 twelve hundred twelve or twelve hundred twelve-A OF THIS ARTICLE shall 34 file a return as required by subdivision (a) of section eleven hundred 35 thirty-six OF THIS CHAPTER with the [tax commission] COMMISSIONER, 36 except that return for the quarterly period ending August thirty-first, 37 nineteen hundred sixty-five shall only cover the month of August, nine- 38 teen hundred sixty-five. The return of a vendor of tangible personal 39 property, DIGITAL PRODUCTS or services shall show his OR HER receipts 40 from sales and also the aggregate value of tangible personal property, 41 DIGITAL PRODUCTS and services sold by him OR HER, the use of which is 42 subject to a tax imposed under the authority of this article and the 43 amount of taxes required to be collected with respect to such sales and 44 use. The return of a recipient of amusement charges shall show all such 45 charges and the amount of tax thereon, and the return of an operator 46 required to collect tax on rents shall show all rents received or 47 charged and the amount of tax thereon. Every person required to file a 48 part-quarterly return pursuant to subdivision (a) of section eleven 49 hundred thirty-six OF THIS CHAPTER shall file a return for the same 50 periods for the taxes imposed pursuant to this article. Provided, howev- 51 er, where a part-quarterly return described in paragraph (i) or (ii) of 52 subdivision (a) of section eleven hundred thirty-six OF THIS CHAPTER is 53 filed for purposes of complying with this section and section eleven 54 hundred thirty-six or subdivision (a) or (b) of section eleven hundred 55 thirty-seven-A OF THIS CHAPTER, on such returns separate amounts due for 56 the taxes imposed by each county, city or school district, pursuant to S. 60--A 160 A. 160--A 1 the authority of section twelve hundred ten, twelve hundred eleven, 2 twelve hundred twelve or twelve hundred twelve-A OF THIS ARTICLE, need 3 not be shown. Rather, such returns shall only show the aggregate amount 4 of all such local taxes calculated in the manner provided for in para- 5 graph (i) or (ii) of subdivision (a) of section eleven hundred thirty- 6 six OF THIS CHAPTER except that in the case of a short-form, part-quar- 7 terly return, where a county, city or school district did not impose a 8 tax in the comparable quarter of the immediately preceding year, the tax 9 for that locality shall be calculated on such basis as the [tax commis- 10 sion] COMMISSIONER shall by regulation prescribe. 11 S 96. Section 1252 of the tax law, as added by chapter 93 of the laws 12 of 1965, subdivision (a) as amended by chapter 89 of the laws of 1976 13 and subdivision (b) as amended by chapter 169 of the laws of 1970, is 14 amended to read as follows: 15 S 1252. Payment of tax. (a) Every person required to file a return or 16 returns under subdivision (a) of the preceding section shall, at the 17 time of filing such return or returns, pay to the [state tax commission] 18 COMMISSIONER the amount which section eleven hundred thirty-seven or 19 section eleven hundred thirty-seven-A of [article twenty-eight] THIS 20 CHAPTER requires to be paid with respect to local taxes imposed pursuant 21 to this article. The amount so required to be paid for the period for 22 which a return or returns is required to be filed shall be due and paya- 23 ble to the [state tax commission] COMMISSIONER on the date limited for 24 the filing of the return or returns for such period, without regard to 25 whether a return is filed or whether the return which is filed clearly 26 shows the amount of receipts, amusement charges or returns or the value 27 of property, DIGITAL PRODUCTS or services sold or purchased or the taxes 28 due thereon. Where the [state tax commission] COMMISSIONER, in [its] 29 HIS OR HER discretion, deems it necessary to protect the revenues to be 30 obtained under this article, [it] THE COMMISSIONER shall have the power 31 to require a bond, cash or other security under procedures which are set 32 forth in section eleven hundred thirty-seven OF THIS CHAPTER. 33 (b) The [tax commission] COMMISSIONER, in [its] HIS OR HER discretion, 34 may require or permit any or all persons liable for any tax or required 35 to collect any tax authorized under section twelve hundred ten, twelve 36 hundred eleven, twelve hundred twelve or twelve hundred twelve-A OF THIS 37 ARTICLE to make payment to such banks, banking houses or trust companies 38 designated by the [tax commission] COMMISSIONER and to file returns with 39 such banks, banking houses or trust companies, as agent of the [state 40 tax commission] COMMISSIONER, in lieu of paying the taxes imposed under 41 the authority of section twelve hundred ten, twelve hundred eleven, 42 twelve hundred twelve or twelve hundred twelve-A directly to the [state 43 tax commission] COMMISSIONER. However, the [tax commission] COMMISSION- 44 ER can only designate such banks, banking houses and trust companies 45 which are already designated by the comptroller as depositories pursuant 46 to section eleven hundred forty-eight of this chapter. 47 S 97. Subdivision (b) of section 1254 of the tax law, as amended by 48 chapter 169 of the laws of 1970, is amended to read as follows: 49 (b) Where the state of New York, any of its agencies, instrumentali- 50 ties, public corporations (including a public corporation created pursu- 51 ant to agreement or compact with another state or Canada) or political 52 subdivisions sells services [or], property OR DIGITAL PRODUCTS of a kind 53 ordinarily sold by private persons it shall be considered a vendor for 54 purposes of the taxes imposed under the authority of sections twelve 55 hundred ten, twelve hundred eleven, twelve hundred twelve and twelve 56 hundred twelve-A OF THIS ARTICLE and shall be required to collect the S. 60--A 161 A. 160--A 1 taxes imposed by cities, counties and school districts under the author- 2 ity of such sections. 3 S 98. Subdivision (d) of section 1817 of the tax law, as added by 4 chapter 65 of the laws of 1985, is amended to read as follows: 5 (d) Any person required to obtain a certificate of authority under 6 section eleven hundred thirty-four of this chapter who, without possess- 7 ing a valid certificate of authority, willfully (1) sells tangible 8 personal property, A DIGITAL PRODUCT or services subject to tax, 9 receives amusement charges or operates a hotel, (2) purchases or sells 10 tangible personal property OR A DIGITAL PRODUCT for resale, or (3) sells 11 automotive fuel; and any person who fails to surrender a certificate of 12 authority as required by such article shall be guilty of a misdemeanor. 13 S 99. Subdivision (e) of section 1817 of the tax law, as amended by 14 chapter 765 of the laws of 1985, is amended to read as follows: 15 (e) Any person required to obtain a certificate of authority under 16 section eleven hundred thirty-four of this chapter who within five years 17 after a determination by the [tax commission] COMMISSIONER, pursuant to 18 such section, to suspend, revoke or refuse to issue a certificate of 19 authority has become final, and without possession of a valid certif- 20 icate of authority (1) sells tangible personal property, A DIGITAL PROD- 21 UCT or services subject to tax, receives amusement charges or operates a 22 hotel, (2) purchases or sells tangible personal property OR A DIGITAL 23 PRODUCT for resale, or (3) sells automotive fuel, shall be guilty of a 24 misdemeanor. It shall be an affirmative defense that such person 25 performed the acts described in this subdivision without knowledge of 26 such determination. Any person who violates a provision of this subdivi- 27 sion, upon conviction, shall be subject to a fine in any amount author- 28 ized by this article, but not less than five hundred dollars, in addi- 29 tion to any other penalty provided by law. 30 S 100. Section 66 of the rural electric cooperative law, as amended by 31 chapter 888 of the laws of 1983, is amended to read as follows: 32 S 66. License fee in lieu of all franchise, excise, income, corpo- 33 ration and sales and compensating use taxes. Each cooperative and 34 foreign corporation doing business in this state pursuant to this chap- 35 ter shall pay annually, on or before the first day of July, to the 36 [state tax commission] COMMISSIONER OF TAXATION AND FINANCE, a fee of 37 ten dollars, but shall be exempt from all other franchise, excise, 38 income, corporation and sales and compensating use taxes whatsoever. The 39 exemption from the sales and compensating use taxes provided by this 40 section shall not apply to the taxes imposed pursuant to section eleven 41 hundred seven or eleven hundred eight of the tax law. Nothing contained 42 in this section shall be deemed to exempt such corporations from 43 collecting and paying over sales and compensating use taxes on retail 44 sales of tangible personal property, DIGITAL PRODUCTS and services made 45 by such corporations to purchasers required to pay such taxes imposed 46 pursuant to article twenty-eight or authorized pursuant to the authority 47 of article twenty-nine of the tax law. 48 S 101. This act shall take effect immediately; provided however, that: 49 1. sections one through nine-a of this act shall apply to taxable 50 years beginning on and after January 1, 2010; and 51 2. sections ten through one hundred of this act shall take effect June 52 1, 2009 and shall apply to sales or uses occurring on or after that date 53 in accordance with applicable transitional provisions in sections 1106 54 and 1217 of the tax law. 55 PART DD S. 60--A 162 A. 160--A 1 Section 1. Subdivision (b) of section 523 of the tax law, as amended 2 by section 7 of part M-1 of chapter 109 of the laws of 2006, is amended 3 to read as follows: 4 (b) Rate of tax. The tax imposed by this section shall be at a compos- 5 ite rate determined by adding together (1) a fuel tax component which 6 shall be equal to the applicable rate per gallon in effect under the 7 taxes on motor fuel and diesel motor fuel imposed by article twelve-A of 8 this chapter and (2) a sales tax component, which shall be equal to [the 9 sum of (A) a state sales and compensating use tax subcomponent, equal 10 to] the [applicable] rate per gallon APPLICABLE TO THE RECEIPTS FROM THE 11 SALE OF A GALLON OF MOTOR FUEL OR DIESEL MOTOR FUEL in effect under the 12 sales and compensating use taxes [on motor fuel and diesel motor fuel] 13 imposed by sections eleven hundred five and eleven hundred ten of this 14 chapter [as described in subdivision (m) of section eleven hundred elev- 15 en of this chapter] plus [(B) a local sales and compensating use tax 16 subcomponent, which shall be the lower of (i) the lowest applicable rate 17 per gallon in effect under the sales and compensating use taxes on such 18 fuels in effect in any county of this state imposing a local sales and 19 compensating use tax on a cents per gallon basis pursuant to the author- 20 ity of subpart B of part one of article twenty-nine of this chapter, or 21 (ii) the equivalent rate per gallon based on] the highest rate applica- 22 ble to the receipts from the sale of a gallon of motor fuel or diesel 23 motor fuel in effect in any locality of this state imposing a local 24 sales and compensating use tax on [a percentage rate basis on] the sale 25 of motor fuel and diesel motor fuel pursuant to the authority of subpart 26 B of part one of article twenty-nine of this chapter. Provided, however, 27 that the total rate per gallon applicable to the receipts from the sale 28 of a gallon of such fuels imposed under [clause (ii) of subparagraph (B) 29 of] paragraph two of this subdivision shall not exceed [three] SEVEN 30 percent. Such TOTAL equivalent rate per gallon under [clause (ii) of 31 subparagraph B of] paragraph two of this subdivision shall be determined 32 as provided in subdivision (d) [or (m)] of section eleven hundred eleven 33 of this chapter and the schedules prescribed by the commissioner pursu- 34 ant to such subdivision (d), and shall be based on the average price per 35 gallon (including all federal and state and any local taxes included in 36 such price or imposed on the use or consumption of such fuels upon which 37 the state and local sales and compensating use taxes are computed but 38 determined without the inclusion of any state or local sales tax on 39 receipts from sales of such fuels) paid by the carrier during the 40 reporting period for all motor fuel and diesel motor fuel purchased for 41 use in its operations either within or without this state. [For purposes 42 of clause (ii) of subparagraph (B) of paragraph two of this subdivision, 43 the] THE price for motor fuel and diesel motor fuel purchased by such 44 carrier shall be deemed to be the prevailing price for motor fuel and 45 diesel motor fuel, as established by the commissioner each calendar 46 quarter pursuant to this section, applicable to the reporting period. 47 The commissioner shall for each calendar quarter establish a prevailing 48 price for motor fuel and diesel motor fuel based on the prices being 49 charged on any given day during the first fifteen days of the previous 50 calendar quarter at a minimum of ten selected truck stops widely scat- 51 tered throughout the state. The tax imposed by this section shall be 52 computed by multiplying such composite rate by the amount of motor fuel 53 or diesel motor fuel, as the case may be, used by a carrier in its oper- 54 ations within this state during each reporting period. The amount of 55 motor fuel and diesel motor fuel used in the operations of any carrier 56 within this state shall be determined by dividing the number of miles S. 60--A 163 A. 160--A 1 traveled in this state subject to tax under this section by the average 2 miles per gallon for the type of fuel. Where the records of any carrier 3 are inadequate or incomplete, the qualified motor vehicles of a carrier 4 filing returns shall be deemed to have consumed, on the average, one 5 gallon of diesel motor fuel for every four miles traveled or one gallon 6 of motor fuel for every three miles traveled unless substantial evidence 7 discloses that a different amount was consumed; provided, however, that 8 if the commissioner enters into a cooperative agreement pursuant to 9 section five hundred twenty-eight of this article and such agreement 10 prescribes a different average miles per gallon deemed to be consumed, 11 the commissioner shall prescribe such different average. 12 S 2. Subdivision (c) of section 524 of the tax law, as amended by 13 section 8 of part M-1 of chapter 109 of the laws of 2006, is amended to 14 read as follows: 15 (c) Actual price. Every carrier which can substantiate that its aver- 16 age price paid per gallon (including all federal and state and any local 17 taxes included in such price or imposed on the use or consumption of 18 such fuels upon which the state and local sales and compensating use 19 taxes are computed but determined [with out] WITHOUT the inclusion of 20 any state or local sales tax on receipts from sales of such fuels) 21 during a reporting period is less than the prevailing price determined 22 for such period pursuant to subdivision (b) of section five hundred 23 twenty-three of this article[, if such calculation was based upon an 24 amount determined under clause (ii) of subparagraph (B) of paragraph two 25 of subdivision (b) of section five hundred twenty-three of this arti- 26 cle,] may apply for a refund of the difference between the tax paid 27 relating to the sales tax component computed based upon such prevailing 28 price for such period and the tax relating to the sales tax component 29 computed based upon the carrier's actual average purchase price for such 30 period. Such refund must be applied for on or before the last day of the 31 month immediately following the four-year period commencing with the end 32 of the reporting period which gave rise to the refund. 33 S 3. Subdivision (n) of section 1111 of the tax law, as amended by 34 section 10 of part W-1 of chapter 109 of the laws of 2006, is amended to 35 read as follows: 36 (n) The sales and compensating use taxes imposed by this article and 37 pursuant to the authority of article twenty-nine of this chapter on B20 38 shall be imposed [at eighty percent of the rate of the cents per gallon 39 taxes described in subdivision (m) of this section. However, if a county 40 or city does not make the cents per gallon election authorized by such 41 subdivision (m), the taxes of such county or city imposed pursuant to 42 the authority of such article twenty-nine or the taxes imposed in a city 43 of one million or more by section eleven hundred seven of this article 44 shall be imposed] on eighty percent of the receipts from the retail sale 45 of or the consideration given or contracted to be given for, or for the 46 use of, such B20. 47 S 4. Paragraph 7 of subdivision (a) of section 1136 of the tax law, as 48 amended by section 2-e of part M-1 of chapter 109 of the laws of 2006, 49 is amended to read as follows: 50 (7) Taxable receipts as used in this section shall include taxable 51 receipts from the sale of automotive fuel and cigarettes and any 52 receipts from the sale of motor fuel or diesel motor fuel or cigarettes 53 in this state whether or not such receipts are subject to the taxes 54 imposed by section eleven hundred two, eleven hundred three, eleven 55 hundred five or eleven hundred ten of this article and regardless of 56 whether the provisions of section eleven hundred twenty or eleven S. 60--A 164 A. 160--A 1 hundred twenty-one of this article are applicable to the taxes imposed 2 in respect of such receipts [or numbers of gallons of motor fuel or 3 diesel motor fuel sold]. 4 S 5. Section 8 of part A of chapter 35 of the laws of 2006 amending 5 the tax law relating to computing sales and compensating use tax on 6 motor fuel and diesel motor fuel and amending the tax law and the gener- 7 al business law relating to requiring retail dealers of motor fuel and 8 diesel motor fuel to reduce prices for such fuel, is amended to read as 9 follows: 10 S 8. This act shall take effect immediately, provided that sections 11 one through five of this act shall take effect June 1, 2006; PROVIDED 12 THAT THIS ACT SHALL EXPIRE JUNE 1, 2009, IN ACCORDANCE WITH THE APPLICA- 13 BLE TRANSITIONAL PROVISIONS OF ARTICLES 28 AND 29 OF THE TAX LAW, WHEN 14 UPON SUCH DATE THE PROVISIONS OF THIS ACT SHALL BE DEEMED REPEALED AND 15 ANY LOCAL LAW, ORDINANCE OR RESOLUTION ENACTED PURSUANT TO THIS ACT OR 16 PURSUANT TO PROVISIONS OF THE TAX LAW AS ADDED OR AMENDED BY THIS ACT 17 SHALL BE DEEMED TO BE REPEALED THEREWITH; PROVIDED, HOWEVER, THAT ALL 18 PROVISIONS OF STATE OR LOCAL LAW, ORDINANCE OR RESOLUTION AND OF REGU- 19 LATIONS ADOPTED THEREUNDER, IN RESPECT OF ASSESSMENT, PAYMENT, DETERMI- 20 NATION, COLLECTION, CREDIT AND REFUND OF TAXES IMPOSED THEREUNDER, THE 21 KEEPING OF RECORDS AND THE FILING OF RETURNS FOR THE PURPOSES OF SUCH 22 TAXES, THE SECRECY OF RETURNS, AND DISPOSITION OF REVENUES AND NET 23 COLLECTIONS, SHALL CONTINUE IN EFFECT WITH RESPECT TO ALL SUCH TAXES 24 ACCRUED THROUGH AND INCLUDING MAY 31, 2009. 25 S 6. Section 14 of part M-1 of chapter 109 of the laws of 2006 amend- 26 ing the tax law and other laws relating to the sales tax imposed on 27 motor fuel and diesel motor fuel, is amended to read as follows: 28 S 14. This act shall take effect immediately; provided that: 29 (a) sections one through ten of this act shall take effect on the same 30 date and in the same manner as part A of chapter 35 of the laws of 2006, 31 takes effect; PROVIDED THAT SECTIONS ONE THROUGH TWO-D, TWO-F, THREE, 32 THREE-B THROUGH SIX, NINE, AND TEN OF THIS ACT SHALL EXPIRE JUNE 1, 33 2009, IN ACCORDANCE WITH THE APPLICABLE TRANSITIONAL PROVISIONS OF ARTI- 34 CLES 28 AND 29 OF THE TAX LAW, WHEN UPON SUCH DATE SUCH SECTIONS OF THIS 35 ACT SHALL BE DEEMED REPEALED AND ANY LOCAL LAW, ORDINANCE OR RESOLUTION 36 ENACTED PURSUANT TO THIS ACT OR PURSUANT TO PROVISIONS OF THE TAX LAW AS 37 ADDED OR AMENDED BY THIS ACT SHALL BE DEEMED TO BE REPEALED THEREWITH; 38 PROVIDED, HOWEVER, THAT ALL PROVISIONS OF STATE OR LOCAL LAW, ORDINANCE 39 OR RESOLUTION AND OF REGULATIONS ADOPTED THEREUNDER, IN RESPECT OF 40 ASSESSMENT, PAYMENT, DETERMINATION, COLLECTION, CREDIT AND REFUND OF 41 TAXES IMPOSED THEREUNDER, THE KEEPING OF RECORDS AND THE FILING OF 42 RETURNS FOR THE PURPOSES OF SUCH TAXES, THE SECRECY OF RETURNS, AND 43 DISPOSITION OF REVENUES AND NET COLLECTIONS, SHALL CONTINUE IN EFFECT 44 WITH RESPECT TO ALL SUCH TAXES ACCRUED THROUGH AND INCLUDING MAY 31, 45 2009; and 46 (b) sections eleven, twelve and thirteen of this act shall take effect 47 on the same date and in the same manner as part B of chapter 35 of the 48 laws of 2006, takes effect. 49 S 7. The repeal of any provision of state or local law, ordinance or 50 resolution by this act shall not be construed to take away, impair or 51 affect any right or remedy acquired or given by the provisions hereby 52 repealed; and all existing suits or proceedings may be continued and 53 completed; and all offenses committed or penalties or forfeitures 54 incurred shall continue and remain in force with the same effect as 55 though this act had not become law. S. 60--A 165 A. 160--A 1 S 8. Notwithstanding any other provision of law: (a) The commissioner 2 of taxation and finance may prescribe the schedules of regional average 3 retail sales prices pursuant to paragraph 3 of subdivision (e) of 4 section 1111 of the tax law, as restored by this act, any date after 5 this act becomes a law and that action will be timely for the period 6 beginning June 1, 2009, if it is taken after the date this act becomes a 7 law and prior to June 1, 2009, and the notice prescribed by subparagraph 8 (iii) of such paragraph 3 is filed after the date this act becomes a law 9 and prior to June 1, 2009. 10 (b) The commissioner of taxation and finance is authorized on any date 11 after this act becomes a law to adopt regulations by emergency action to 12 set forth the methodology to determine the regional average retail sell- 13 ing prices and to establish the sales tax components and the motor fuel 14 and diesel motor fuel composite rates for the fuel use taxes imposed by 15 article 21-A of the tax law for the quarter including the effective date 16 of this act and the next calendar quarter. 17 S 9. This act shall take effect immediately; provided however that 18 sections one, two, three, four, five, six and seven of this act shall 19 take effect June 1, 2009, and shall apply in accordance with applicable 20 transitional provisions in articles 28 and 29 of the tax law; provided 21 however that the amendment to subdivision (n) of section 1111 of the tax 22 law made by section three of this act shall not affect the repeal of 23 such subdivision and shall be deemed repealed therewith. 24 PART EE 25 Section 1. Section 502 of the tax law is amended by adding a new 26 subdivision 6 to read as follows: 27 6. A. THE COMMISSIONER MAY REQUIRE THE USE OF DECALS AS EVIDENCE THAT 28 A CARRIER HAS A VALID CERTIFICATE OF REGISTRATION FOR EACH MOTOR VEHICLE 29 OPERATED OR TO BE OPERATED ON THE PUBLIC HIGHWAYS OF THIS STATE AS 30 REQUIRED BY PARAGRAPH A OF SUBDIVISION ONE OF THIS SECTION. IF THE 31 COMMISSIONER REQUIRES THE USE OF DECALS, THE COMMISSIONER SHALL ISSUE 32 FOR EACH MOTOR VEHICLE WITH A VALID CERTIFICATE OF REGISTRATION A DECAL 33 THAT SHALL BE OF A SIZE AND DESIGN AND CONTAINING SUCH INFORMATION AS 34 THE COMMISSIONER PRESCRIBES. THE FEE FOR ANY DECAL ISSUED PURSUANT TO 35 THIS PARAGRAPH IS FOUR DOLLARS. IN THE CASE OF THE LOSS, MUTILATION, OR 36 DESTRUCTION OF A DECAL, THE COMMISSIONER SHALL ISSUE A NEW DECAL UPON 37 PROOF OF THE FACTS AND PAYMENT OF FOUR DOLLARS. THE DECAL SHALL BE FIRM- 38 LY AND CONSPICUOUSLY AFFIXED UPON THE MOTOR VEHICLE FOR WHICH IT IS 39 ISSUED AS CLOSELY AS PRACTICAL TO THE REGISTRATION OR LICENSE PLATES AND 40 AT ALL TIMES BE VISIBLE AND LEGIBLE. NO DECAL IS TRANSFERABLE. A DECAL 41 SHALL BE VALID UNTIL IT EXPIRES OR IS REVOKED, SUSPENDED, OR SURREN- 42 DERED. 43 B. THE COMMISSIONER MAY REQUIRE THE USE OF SPECIAL DECALS AS EVIDENCE 44 THAT AN AUTOMOTIVE FUEL CARRIER HAS A VALID SPECIAL CERTIFICATE OF 45 REGISTRATION FOR EACH MOTOR VEHICLE OPERATED OR TO BE OPERATED ON THE 46 PUBLIC HIGHWAYS OF THIS STATE TO TRANSPORT AUTOMOTIVE FUEL AS REQUIRED 47 BY PARAGRAPH B OF SUBDIVISION ONE OF THIS SECTION. IF THE COMMISSIONER 48 REQUIRES THE USE OF SPECIAL DECALS, THE COMMISSIONER SHALL ISSUE FOR 49 EACH MOTOR VEHICLE WITH A VALID SPECIAL CERTIFICATE OF REGISTRATION A 50 SPECIAL DECAL THAT SHALL BE DISTINCTIVELY COLORED AND OF A SIZE AND 51 DESIGN AND CONTAINING SUCH INFORMATION AS THE COMMISSIONER PRESCRIBES. 52 THE FEE FOR ANY SPECIAL DECAL ISSUED PURSUANT TO THIS PARAGRAPH IS FOUR 53 DOLLARS. IN THE CASE OF THE LOSS, MUTILATION, OR DESTRUCTION OF A 54 SPECIAL DECAL, THE COMMISSIONER SHALL ISSUE A NEW SPECIAL DECAL UPON S. 60--A 166 A. 160--A 1 PROOF OF THE FACTS AND PAYMENT OF FOUR DOLLARS. THE SPECIAL DECAL SHALL 2 BE FIRMLY AND CONSPICUOUSLY AFFIXED UPON THE MOTOR VEHICLE FOR WHICH IT 3 IS ISSUED PURSUANT TO THE RULES AND REGULATIONS PRESCRIBED BY THE 4 COMMISSIONER TO ENABLE THE EASY IDENTIFICATION OF THE AUTOMOTIVE FUEL 5 CARRIER CERTIFICATE OF REGISTRATION NUMBER AND AT ALL TIMES BE VISIBLE 6 AND LEGIBLE. NO SPECIAL DECAL IS TRANSFERABLE AND SHALL BE VALID UNTIL 7 IT EXPIRES OR IS REVOKED, SUSPENDED, OR SURRENDERED. 8 C. THE SUSPENSION OR REVOCATION OF ANY CERTIFICATE OF REGISTRATION 9 ISSUED UNDER THIS ARTICLE SHALL BE DEEMED TO INCLUDE THE SUSPENSION AND 10 REVOCATION OF ANY DECAL ISSUED UNDER THIS SUBDIVISION. 11 S 2. Subdivision 5-a of section 509 of the tax law, as amended by 12 section 4 of part E of chapter 60 of the laws of 2007, is amended to 13 read as follows: 14 5-a. To take possession of any certificate of registration which has 15 been suspended or revoked under the provisions of this article AND ANY 16 DECAL ISSUED IN CONJUNCTION THEREWITH, and any certificate of registra- 17 tion which is being used for a motor vehicle other than the one for 18 which it was issued AND ANY DECAL THAT IS ON A MOTOR VEHICLE OTHER THAN 19 THE ONE FOR WHICH IT WAS ISSUED, OR TO DIRECT ANY PEACE OFFICER, ACTING 20 PURSUANT TO HIS OR HER SPECIAL DUTIES, OR ANY POLICE OFFICER OR ANY 21 EMPLOYEE OF THE DEPARTMENT TO TAKE POSSESSION THEREOF AND RETURN THE 22 SAME TO THE COMMISSIONER. 23 S 3. Subdivision 8 of section 509 of the tax law, as amended by 24 section 5 of part E of chapter 60 of the laws of 2007, is amended to 25 read as follows: 26 8. To issue replacement certificates of registration OR DECALS at such 27 times as the commissioner may deem necessary for the proper and effi- 28 cient enforcement of the provisions of this article, but not more often 29 than once every year and to require the surrender of the then outstand- 30 ing certificates of registration AND DECALS. All of the provisions of 31 this article with respect to certificates of registration AND DECALS 32 shall be applicable to replacement certificates of registration AND 33 DECALS issued hereunder, except that the replacement certificate of 34 registration OR DECAL shall be issued upon payment of a fee of four 35 dollars for each motor vehicle and two dollars for any trailer, semi- 36 trailer, dolly or other device drawn thereby for which a certificate of 37 registration OR DECAL is required to be issued under this article; 38 S 4. Paragraph (e) of subdivision 1 of section 512 of the tax law, as 39 added by section 8 of part E of chapter 60 of the laws of 2007, is 40 amended to read as follows: 41 (e) In addition to any other penalty imposed by this chapter, any 42 person who fails to obtain a certificate of registration OR DECAL as 43 required under this article shall, after due notice and an opportunity 44 for a hearing, for a first violation be liable for a civil fine not less 45 than five hundred dollars but not to exceed two thousand dollars and for 46 a second or subsequent violation within three years following a prior 47 finding of violation be liable for a civil fine not less than one thou- 48 sand dollars but not to exceed three thousand five hundred dollars. 49 S 5. Clause (i) of subparagraph (A) of paragraph 1 of subdivision (a) 50 of section 1815 of the tax law, as amended by section 10 of part E of 51 chapter 60 of the laws of 2007, is amended to read as follows: 52 (i) Use or cause or permit to be used, any public highway in this 53 state for the operation of a motor vehicle subject to the provisions of 54 article twenty-one of this chapter without first applying for and 55 obtaining the certificate of registration required under such article OR 56 A DECAL THAT HAS BEEN SUSPENDED OR REVOKED OR THAT WAS ISSUED FOR A S. 60--A 167 A. 160--A 1 MOTOR VEHICLE OTHER THAN THE ONE ON WHICH AFFIXED. THE OPERATION OF ANY 2 MOTOR VEHICLE ON ANY PUBLIC HIGHWAY OF THIS STATE WITHOUT A DECAL 3 REQUIRED UNDER SUCH ARTICLE SHALL BE PRESUMPTIVE EVIDENCE THAT A CERTIF- 4 ICATE OF REGISTRATION OR DECAL HAS NOT BEEN OBTAINED FOR SUCH MOTOR 5 VEHICLE; 6 S 6. This act shall take effect immediately. 7 PART FF 8 Section 1. Clauses (G) and (H) of subparagraph (i) of paragraph 8 of 9 subdivision (b) of section 1101 of the tax law, as amended by chapter 61 10 of the laws of 1989 and as relettered by chapter 190 of the laws of 11 1990, are amended and a new clause (I) is added to read as follows: 12 (G) Any other person making sales to persons within the state of 13 tangible personal property or services, the use of which is taxed by 14 this article, who may be authorized by the commissioner of taxation and 15 finance to collect such tax by part IV of this article; [and] 16 (H) The state of New York, any of its agencies, instrumentalities, 17 public corporations (including a public corporation created pursuant to 18 agreement or compact with another state or Canada) or political subdivi- 19 sions when such entity sells services or property of a kind ordinarily 20 sold by private persons[.]; AND 21 (I) A SELLER OF TANGIBLE PERSONAL PROPERTY OR SERVICES, THE USE OF 22 WHICH IS TAXED BY THIS ARTICLE IF EITHER (I) AN AFFILIATED PERSON THAT 23 IS A VENDOR AS OTHERWISE DEFINED IN THIS PARAGRAPH USES IN THE STATE 24 TRADEMARKS, SERVICE MARKS, OR TRADE NAMES THAT ARE THE SAME AS THOSE THE 25 SELLER USES; OR (II) AN AFFILIATED PERSON ENGAGES IN ACTIVITIES IN THE 26 STATE THAT INURE TO THE BENEFIT OF THE SELLER, IN ITS DEVELOPMENT OR 27 MAINTENANCE OF A MARKET FOR ITS GOODS OR SERVICES IN THE STATE, TO THE 28 EXTENT THAT THOSE ACTIVITIES OF THE AFFILIATE ARE SUFFICIENT TO SATISFY 29 THE NEXUS REQUIREMENT OF THE UNITED STATES CONSTITUTION. FOR PURPOSES OF 30 THIS CLAUSE, "AFFILIATED PERSON" HAS THE SAME MEANING AS IN CLAUSE (B) 31 OF SUBPARAGRAPH (V) OF THIS PARAGRAPH. NOTHING IN THIS CLAUSE SHALL BE 32 CONSTRUED TO NARROW THE SCOPE OF ANY OTHER PROVISION IN THIS PARAGRAPH. 33 S 2. This act shall take effect June 1, 2009 and shall apply to sales 34 made or uses occurring on or after such date in accordance with the 35 applicable transitional provisions of sections 1106 and 1217 of the tax 36 law. 37 PART GG 38 Section 1. Subdivision 6 of section 212 of the racing, pari-mutuel 39 wagering and breeding law, as added by chapter 18 of the laws of 2008, 40 is amended and a new subdivision 7-a is added to read as follows: 41 6. Within thirty days following the appointment of the members of the 42 franchise oversight board, the members of the oversight board shall 43 establish a local advisory board for each racing operation comprised of 44 the following members to meet at least twice yearly: 45 a. The local advisory board for the Saratoga racetrack facility shall 46 be comprised of fifteen members and include five designees from each of 47 the following: the board of supervisors, the mayor of the city of Sara- 48 toga and the franchised corporation. 49 b. The local advisory board for the Aqueduct racetrack facility shall 50 be comprised of fifteen members, nine of whom shall be designees of New 51 York City Queens Community Board Ten, three designees of the franchised 52 corporation and three designees of the video lottery gaming operator. S. 60--A 168 A. 160--A 1 C. THE LOCAL ADVISORY BOARD OF BELMONT PARK SHALL CONSIST OF FIFTEEN 2 PERSONS, TWO OF WHOM SHALL BE DESIGNEES OF THE NEW YORK CITY QUEENS 3 COMMUNITY BOARD THIRTEEN, FOUR OF WHOM SHALL BE DESIGNEES OF THE COUNTY 4 EXECUTIVE OF THE COUNTY OF NASSAU, THREE OF WHOM SHALL BE DESIGNEES OF 5 THE SUPERVISOR OF THE TOWN OF HEMPSTEAD, THREE DESIGNEES OF THE FRAN- 6 CHISED CORPORATION AND THREE DESIGNEES OF THE VIDEO LOTTERY GAMING OPER- 7 ATOR. 8 The members of the local advisory boards shall serve for a period of 9 two years. In the event of a vacancy occurring during a term of appoint- 10 ment by reason of death, resignation, disqualification or otherwise such 11 vacancy shall be filled for the unexpired term in the same manner as the 12 original appointment. The members of the local advisory board shall 13 serve without compensation, except that each member shall be allowed the 14 necessary and actual expenses incurred in the performance of his or her 15 duties pursuant to this section. 16 7-A. THE LOCAL ADVISORY BOARD OF BELMONT PARK SHALL, AFTER CONDUCTING 17 PUBLIC HEARINGS WITHIN THE UNINCORPORATED HAMLET OF ELMONT AND THE 18 AFFECTED COMMUNITIES, DEVELOP A STRATEGIC MASTER PLAN FOR THE REVITALI- 19 ZATION OF BELMONT PARK RACETRACK, THE DEVELOPMENT OF A VIDEO LOTTERY 20 TERMINAL GAMING FACILITY AND REDEVELOPMENT OF THE UNINCORPORATED HAMLET 21 OF ELMONT AND THE AFFECTED COMMUNITIES. 22 S 2. Clause (B) of subparagraph (ii) of paragraph 1 of subdivision b 23 of section 1612 of the tax law, as amended by chapter 140 of the laws of 24 2008, is amended to read as follows: 25 (B) having one thousand one hundred or more video gaming machines, at 26 a rate of thirty-two percent of the total revenue wagered at the vendor 27 track after payout for prizes pursuant to this chapter, except for such 28 facility located in the county of Westchester, in which case the rate 29 shall be thirty-four percent of the total revenue wagered at the vendor 30 track after payout for prizes pursuant to this chapter, for a period of 31 twenty-four months effective beginning April first, two thousand eight; 32 provided, however, that in the event that the vendor track located in 33 Westchester county completes a successful restructuring prior to March 34 thirty-first, two thousand ten, the vendor fee will be reduced to thir- 35 ty-two percent ninety days following the completion of the successful 36 restructuring. A successful restructuring is defined as a restructuring 37 of the existing debt obligations of such vendor track located in West- 38 chester county that meets the following two conditions: 39 (i) it requires no more than twenty million dollars of additional 40 equity invested in such track; and 41 (ii) results in average net interest costs of less than nine percent. 42 Notwithstanding the foregoing, the vendor fee at such track will 43 become thirty-one percent effective April first, two thousand ten and 44 remain at that level for a period equal to two times the period of time 45 (measured in days) that the vendor fee was thirty-four percent or until 46 March thirty-first, two thousand twelve, whichever is later. Notwith- 47 standing the foregoing, not later than April first, two thousand twelve, 48 the vendor fee shall become thirty-two percent and remain at that level 49 thereafter; and except for Aqueduct racetrack, in which case the vendor 50 fee shall be thirty-eight percent of the total revenue wagered at the 51 vendor track after payout for prizes pursuant to this chapter; AND 52 EXCEPT FOR BELMONT RACETRACK, IN WHICH CASE THE VENDOR FEE SHALL BE 53 THIRTY-SIX AND ONE-HALF PERCENT OF THE TOTAL REVENUE WAGERED AT THE 54 VENDOR TRACK AFTER PAYOUT FOR PRIZES PURSUANT TO THIS CHAPTER; S. 60--A 169 A. 160--A 1 S 3. Subparagraph (iii) of paragraph 1 of subdivision b of section 2 1612 of the tax law, as separately amended by chapters 140 and 286 of 3 the laws of 2008, is amended to read as follows: 4 (iii) less an additional vendor's marketing allowance at a rate of ten 5 percent for the first one hundred million dollars annually and eight 6 percent thereafter of the total revenue wagered at the vendor track 7 after payout for prizes to be used by the vendor track for the marketing 8 and promotion and associated costs of its video lottery gaming oper- 9 ations and pari-mutuel horse racing operations, as long as any such 10 costs associated with pari-mutuel horse racing operations simultaneously 11 encourage increased attendance at such vendor's video lottery gaming 12 facilities, consistent with the customary manner of marketing comparable 13 operations in the industry and subject to the overall supervision of the 14 division; provided, however, that the additional vendor's marketing 15 allowance shall not exceed eight percent in any year for any operator of 16 a racetrack located in the county of Westchester [or], Queens OR NASSAU; 17 provided, however, a vendor track that receives a vendor fee pursuant to 18 clause (G) of [this] subparagraph (II) OF THIS PARAGRAPH shall not 19 receive the additional vendor's marketing allowance. In establishing the 20 vendor fee, the division shall ensure the maximum lottery support for 21 education while also ensuring the effective implementation of section 22 sixteen hundred seventeen-a of this article through the provision of 23 reasonable reimbursements and compensation to vendor tracks for partic- 24 ipation in such program. Within twenty days after any award of lottery 25 prizes, the division shall pay into the state treasury, to the credit of 26 the state lottery fund, the balance of all moneys received from the sale 27 of all tickets for the lottery in which such prizes were awarded remain- 28 ing after provision for the payment of prizes as herein provided. Any 29 revenues derived from the sale of advertising on lottery tickets shall 30 be deposited in the state lottery fund. 31 S 4. Clause (F) of subparagraph (ii) of paragraph 1 of subdivision b 32 of section 1612 of the tax law, as amended by chapter 140 of the laws of 33 2008, is amended to read as follows: 34 (F) notwithstanding clauses (A), (B), (C), (D) and (E) of this subpar- 35 agraph, the track operator of a vendor track shall be eligible for a 36 vendor's capital award of up to four percent of the total revenue 37 wagered at the vendor track after payout for prizes pursuant to this 38 chapter, which shall be used exclusively for capital project investments 39 to improve the facilities of the vendor track which promote or encourage 40 increased attendance at the video lottery gaming facility including, but 41 not limited to hotels, other lodging facilities, entertainment facili- 42 ties, retail facilities, dining facilities, events arenas, parking 43 garages and other improvements that enhance facility amenities; provided 44 that such capital investments shall be approved by the division, in 45 consultation with the state racing and wagering board, and that such 46 vendor track demonstrates that such capital expenditures will increase 47 patronage at such vendor track's facilities and increase the amount of 48 revenue generated to support state education programs. The annual amount 49 of such vendor's capital awards that a vendor track shall be eligible to 50 receive shall be limited to two million five hundred thousand dollars, 51 except for Aqueduct [racetrack] AND BELMONT RACETRACKS, for which there 52 shall be no vendor's capital awards. Except for tracks having less than 53 one thousand one hundred video gaming machines, each track operator 54 shall be required to co-invest an amount of capital expenditure equal to 55 its cumulative vendor's capital awards. For all tracks, except for Aque- 56 duct [racetrack] AND BELMONT RACETRACKS, the amount of any vendor's S. 60--A 170 A. 160--A 1 capital award that is not used during any one year period may be carried 2 over into subsequent years ending before April first, two thousand thir- 3 teen. Any amount attributable to a capital expenditure approved prior to 4 April first, two thousand thirteen and completed before April first, two 5 thousand fifteen shall be eligible to receive the vendor's capital 6 award. In the event that a vendor track's capital expenditures, approved 7 by the division prior to April first, two thousand thirteen and 8 completed prior to April first, two thousand fifteen, exceed the vendor 9 track's cumulative capital award during the five year period ending 10 April first, two thousand thirteen, the vendor shall continue to receive 11 the capital award after April first, two thousand thirteen until such 12 approved capital expenditures are paid to the vendor track subject to 13 any required co-investment. In no event shall such track facility 14 located in Sullivan county and within sixty miles from any gaming facil- 15 ity in a contiguous state be eligible for a vendor's capital award under 16 this section, unless it shall have moved from such location or the five 17 year period commencing on April first, two thousand eight has expired, 18 whichever comes first. Any operator of a vendor track which has received 19 a vendor's capital award, choosing to divest the capital improvement 20 toward which the award was applied, prior to reaching the forty year 21 straightline depreciation value of the improvement, shall reimburse the 22 state in amounts equal to the total of any such awards. Any capital 23 award not approved for a capital expenditure at a video lottery gaming 24 facility by April first, two thousand thirteen shall be deposited in the 25 state lottery fund for education aid; and 26 S 5. Paragraph 2 of subdivision b of section 1612 of the tax law, as 27 separately amended by chapters 140 and 286 of the laws of 2008, is 28 amended to read as follows: 29 2. As consideration for the operation of a video lottery gaming facil- 30 ity, the division, shall cause the investment in the racing industry of 31 a portion of the vendor fee received pursuant to paragraph one of this 32 subdivision in the manner set forth in this subdivision. With the excep- 33 tion of Aqueduct [racetrack] AND BELMONT RACETRACKS, each such track 34 shall dedicate a portion of its vendor fees, received pursuant to clause 35 (A), (B), (C), (D), (E), (F), or (G) of subparagraph (ii) of paragraph 36 one of this subdivision, solely for the purpose of enhancing purses at 37 such track, in an amount equal to eight and three-quarters percent of 38 the total revenue wagered at the vendor track after pay out for prizes. 39 In addition, WITH THE EXCEPTION OF THE AQUEDUCT AND BELMONT RACETRACKS, 40 one and one-quarter percent of total revenue wagered at the vendor track 41 after pay out for prizes, received pursuant to clause (A), (B), (C), 42 (D), (E), (F), or (G) of subparagraph (ii) of paragraph one of this 43 subdivision, shall be distributed to the appropriate breeding fund for 44 the manner of racing conducted by such track. 45 Provided, further, that nothing in this paragraph shall prevent each 46 track from entering into an agreement, not to exceed five years, with 47 the organization authorized to represent its horsemen to increase or 48 decrease the portion of its vendor fee dedicated to enhancing purses at 49 such track during the years of participation by such track, or to race 50 fewer dates than required herein. 51 S 6. Section 1612 of the tax law is amended by adding three new subdi- 52 visions h, i and j to read as follows: 53 H. THE VIDEO LOTTERY GAMING OPERATOR SELECTED TO OPERATE A VIDEO 54 LOTTERY TERMINAL FACILITY AT BELMONT WILL BE SUBJECT TO A MEMORANDUM OF 55 UNDERSTANDING BETWEEN THE GOVERNOR, TEMPORARY PRESIDENT OF THE SENATE 56 AND THE SPEAKER OF THE ASSEMBLY. NOTWITHSTANDING SUBPARAGRAPH (I) OF S. 60--A 171 A. 160--A 1 PARAGRAPH A OF SUBDIVISION EIGHT OF SECTION TWO HUNDRED TWELVE OF THE 2 RACING, PARI-MUTUEL WAGERING AND BREEDING LAW, THE STATE, PURSUANT TO AN 3 AGREEMENT WITH THE VIDEO LOTTERY GAMING OPERATOR TO OPERATE A VIDEO 4 LOTTERY TERMINAL FACILITY AT BELMONT, MAY AUTHORIZE, AS PART OF SUCH 5 AGREEMENT OR IN CONJUNCTION WITH SUCH AGREEMENT AT THE TIME IT IS 6 EXECUTED, ADDITIONAL DEVELOPMENT AT THE BELMONT RACING FACILITY. THE 7 SELECTION SHALL BE MADE IN CONSULTATION WITH THE FRANCHISED CORPORATION, 8 BUT IS NOT SUBJECT TO SUCH CORPORATION'S APPROVAL. THE FRANCHISED CORPO- 9 RATION SHALL NOT BE ELIGIBLE TO COMPETE TO OPERATE OR TO OPERATE A VIDEO 10 LOTTERY TERMINAL FACILITY AT BELMONT. THE STATE WILL USE ITS BEST 11 EFFORTS TO ENSURE THAT THE VIDEO LOTTERY TERMINAL FACILITY AT BELMONT IS 12 OPENED AS SOON AS IS PRACTICABLE AND WILL, IF PRACTICABLE, PURSUE THE 13 CONSTRUCTION OF A TEMPORARY VIDEO LOTTERY TERMINAL FACILITY AT BELMONT 14 SUBJECT TO STAYING WITHIN AN AGREED BUDGET FOR SUCH VIDEO LOTTERY TERMI- 15 NAL FACILITY AND SUBJECT TO SUCH TEMPORARY FACILITY NOT HAVING AN 16 ADVERSE IMPACT ON OPENING OF THE PERMANENT FACILITY AT BELMONT. 17 I. IN CONSIDERATION OF ITS LICENSURE AND PARTICIPATION IN THIS 18 PROGRAM, THE VIDEO LOTTERY GAMING OPERATOR AT BELMONT RACETRACK SHALL 19 REINVEST IN THE RACING INDUSTRY A PERCENTAGE OF THE VENDOR FEE RECEIVED 20 PURSUANT TO SUBDIVISION B OF THIS SECTION IN THE MANNER SET FORTH IN 21 THIS SUBDIVISION. THE VIDEO LOTTERY GAMING OPERATOR AT BELMONT RACETRACK 22 SHALL PROVIDE THE FOLLOWING PERCENTAGES OF ITS VENDOR FEE TO THE FRAN- 23 CHISED CORPORATION ESTABLISHED PURSUANT TO SECTION TWO HUNDRED SIX OF 24 THE RACING, PARI-MUTUEL WAGERING AND BREEDING LAW, AS FOLLOWS: 25 1. THREE AND THREE-QUARTERS PERCENT OF THE TOTAL WAGERED AFTER PAYOUT 26 OF PRIZES FOR THE PURPOSE OF ENHANCING PURSES AT AQUEDUCT RACETRACK, 27 BELMONT PARK RACETRACK AND SARATOGA RACE COURSE. 28 2. THREE-QUARTERS PERCENT OF THE TOTAL WAGERED AFTER PAYOUT OF PRIZES 29 FOR AN APPROPRIATE BREEDING FUND FOR THE MANNER OF RACING CONDUCTED AT 30 AQUEDUCT RACETRACK, BELMONT PARK RACETRACK AND SARATOGA RACE COURSE. 31 3. TWO PERCENT OF THE TOTAL REVENUE WAGERED AFTER PAYOUT OF PRIZES TO 32 BE DEPOSITED INTO AN ACCOUNT OF THE FRANCHISED CORPORATION ESTABLISHED 33 PURSUANT TO SECTION TWO HUNDRED SIX OF THE RACING, PARI-MUTUEL WAGERING 34 AND BREEDING LAW TO BE USED FOR CAPITAL EXPENDITURES IN MAINTAINING AND 35 UPGRADING AQUEDUCT RACETRACK, BELMONT PARK RACETRACK AND SARATOGA RACE 36 COURSE. 37 4. ONE AND ONE-HALF PERCENT OF THE TOTAL REVENUE WAGERED AFTER PAYOUT 38 FOR PRIZES TO BE DEPOSITED INTO AN ACCOUNT OF THE FRANCHISED CORPORATION 39 ESTABLISHED PURSUANT TO SECTION TWO HUNDRED SIX OF THE RACING, PARI-MU- 40 TUEL WAGERING AND BREEDING LAW TO BE USED FOR GENERAL THOROUGHBRED 41 RACING OPERATIONS AT AQUEDUCT RACETRACK, BELMONT PARK RACETRACK AND 42 SARATOGA RACE COURSE. 43 5. PARAGRAPHS ONE, TWO, THREE AND FOUR OF THIS SUBDIVISION SHALL BE 44 KNOWN COLLECTIVELY AS THE "BELMONT RACING SUPPORT PAYMENTS". 45 J. NOTWITHSTANDING ANY PROVISION OF SUBDIVISION B OR F OF THIS SECTION 46 TO THE CONTRARY, UPON COMMENCEMENT OF THE OPERATION OF VIDEO LOTTERY 47 GAMING AT BELMONT RACETRACK, THE VENDOR FEE TO BE PAID FOR SERVING AS A 48 LOTTERY AGENT TO THE TRACK OPERATOR OF AQUEDUCT RACETRACK, SHALL BE 49 THIRTY-SEVEN AND ONE-QUARTER PERCENT OF THE TOTAL REVENUE WAGERED AT THE 50 VENDOR TRACK AFTER PAYOUT FOR PRIZES PURSUANT TO THIS ARTICLE FOR THE 51 FIRST YEAR OF OPERATION OF VIDEO LOTTERY GAMING AT AQUEDUCT RACETRACK, 52 THIRTY-SIX AND EIGHT HUNDRED SEVENTY-FIVE-THOUSANDTHS PERCENT OF THE 53 TOTAL REVENUE WAGERED AT THE VENDOR TRACK AFTER PAYOUT FOR PRIZES PURSU- 54 ANT TO THIS ARTICLE FOR THE SECOND YEAR OF OPERATION OF VIDEO LOTTERY 55 GAMING AT AQUEDUCT RACETRACK, AND THIRTY-SIX AND ONE-HALF PERCENT OF THE 56 TOTAL REVENUE WAGERED AT THE VENDOR TRACK AFTER PAYOUT FOR PRIZES PURSU- S. 60--A 172 A. 160--A 1 ANT TO THIS ARTICLE FOR THE THIRD YEAR OF OPERATION OF VIDEO LOTTERY 2 GAMING AT AQUEDUCT RACETRACK AND THEREAFTER. AS CONSIDERATION FOR THE 3 OPERATION OF THE VIDEO LOTTERY GAMING FACILITY AT AQUEDUCT RACETRACK, 4 THE DIVISION SHALL CAUSE THE INVESTMENT IN THE RACING INDUSTRY OF THE 5 FOLLOWING PERCENTAGES OF THE VENDOR FEE DESCRIBED IN THIS SUBDIVISION TO 6 BE DEPOSITED OR PAID, AS FOLLOWS: 7 1. THREE AND ONE-QUARTER PERCENT OF THE TOTAL WAGERED AFTER PAYOUT OF 8 PRIZES FOR THE FIRST YEAR OF OPERATION OF VIDEO LOTTERY GAMING AT AQUE- 9 DUCT RACETRACK, THREE AND ONE-HALF PERCENT OF THE TOTAL WAGERED AFTER 10 PAYOUT OF PRIZES FOR THE SECOND YEAR OF OPERATION, AND THREE AND THREE- 11 QUARTERS PERCENT OF THE TOTAL WAGERED AFTER PAYOUT OF PRIZES FOR THE 12 THIRD YEAR OF OPERATION AND THEREAFTER, FOR THE PURPOSE OF ENHANCING 13 PURSES AT AQUEDUCT RACETRACK, BELMONT PARK RACETRACK AND SARATOGA RACE 14 COURSE. 15 2. ONE-HALF PERCENT OF THE TOTAL WAGERED AFTER PAYOUT OF PRIZES FOR 16 THE FIRST YEAR OF OPERATION OF VIDEO LOTTERY GAMING AT AQUEDUCT RACE- 17 TRACK, SIX HUNDRED TWENTY-FIVE THOUSANDTHS PERCENT OF THE TOTAL WAGERED 18 AFTER PAYOUT OF PRIZES FOR THE SECOND YEAR OF OPERATION, AND THREE-QUAR- 19 TERS PERCENT OF THE TOTAL WAGERED AFTER PAYOUT OF PRIZES FOR THE THIRD 20 YEAR OF OPERATION AND THEREAFTER, FOR AN APPROPRIATE BREEDING FUND FOR 21 THE MANNER OF RACING CONDUCTED AT AQUEDUCT RACETRACK, BELMONT PARK RACE- 22 TRACK AND SARATOGA RACE COURSE. 23 3. TWO PERCENT OF THE TOTAL REVENUE WAGERED AFTER PAYOUT OF PRIZES TO 24 BE DEPOSITED INTO AN ACCOUNT OF THE FRANCHISED CORPORATION ESTABLISHED 25 PURSUANT TO SECTION TWO HUNDRED SIX OF THE RACING, PARI-MUTUEL WAGERING 26 AND BREEDING LAW TO BE USED FOR CAPITAL EXPENDITURES IN MAINTAINING AND 27 UPGRADING AQUEDUCT RACETRACK, BELMONT PARK RACETRACK AND SARATOGA RACE 28 COURSE. 29 4. ONE AND ONE-HALF PERCENT OF THE TOTAL REVENUE WAGERED AFTER PAYOUT 30 FOR PRIZES TO BE DEPOSITED INTO AN ACCOUNT OF THE FRANCHISED CORPORATION 31 ESTABLISHED PURSUANT TO SECTION TWO HUNDRED SIX OF THE RACING, PARI-MU- 32 TUEL WAGERING AND BREEDING LAW TO BE USED FOR GENERAL THOROUGHBRED 33 RACING OPERATIONS AT AQUEDUCT RACETRACK, BELMONT PARK RACETRACK AND 34 SARATOGA RACE COURSE. 35 5. PARAGRAPHS ONE, TWO, THREE AND FOUR OF THIS SUBDIVISION SHALL BE 36 KNOWN COLLECTIVELY AS THE "AQUEDUCT RACING SUPPORT PAYMENTS". 37 S 7. The opening paragraph of subdivision a of section 1617-a of the 38 tax law, as amended by section 2 of part Z3 of chapter 62 of the laws of 39 2003, is amended to read as follows: 40 The division of the lottery is hereby authorized to license, pursuant 41 to rules and regulations to be promulgated by the division of the 42 lottery, the operation of video lottery gaming at Aqueduct AND BELMONT, 43 Monticello, Yonkers, Finger Lakes, and Vernon Downs racetracks, or at 44 any other racetrack licensed pursuant to article three of the racing, 45 pari-mutuel wagering and breeding law that are located in a county or 46 counties in which video lottery gaming has been authorized pursuant to 47 local law, excluding the licensed racetrack commonly referred to in 48 article three of the racing, pari-mutuel wagering and breeding law as 49 the "New York state exposition" held in Onondaga county and the [race- 50 tracks] RACETRACK of the [non-profit racing association] FRANCHISED 51 CORPORATION known as [Belmont Park racetrack and] the Saratoga thorough- 52 bred racetrack. Such rules and regulations shall provide, as a condi- 53 tion of licensure, that racetracks to be licensed are certified to be in 54 compliance with all state and local fire and safety codes, that the 55 division is afforded adequate space, infrastructure, and amenities 56 consistent with industry standards for such video gaming operations as S. 60--A 173 A. 160--A 1 found at racetracks in other states, that racetrack employees involved 2 in the operation of video lottery gaming pursuant to this section are 3 licensed by the racing and wagering board, and such other terms and 4 conditions of licensure as the division may establish. Notwithstanding 5 any inconsistent provision of law, video lottery gaming at a racetrack 6 pursuant to this section shall be deemed an approved activity for such 7 racetrack under the relevant city, county, town, or village land use or 8 zoning ordinances, rules, or regulations. No racetrack operating video 9 lottery gaming pursuant to this section may house such gaming activity 10 in a structure deemed or approved by the division as "temporary" for a 11 duration of longer than eighteen-months. 12 S 8. The opening paragraph of subdivision a of section 1617-a of the 13 tax law, as amended by chapter 140 of the laws of 2008, is amended to 14 read as follows: 15 The division of the lottery is hereby authorized to license, pursuant 16 to rules and regulations to be promulgated by the division of the 17 lottery, the operation of video lottery gaming at Aqueduct [racetrack] 18 AND BELMONT RACETRACKS. Such rules and regulations shall provide, as a 19 condition of licensure, that [such racetrack is] RACETRACKS TO BE 20 LICENSED ARE certified to be in compliance with all state and local fire 21 and safety codes, that the division is afforded adequate space, infras- 22 tructure, and amenities consistent with industry standards for such 23 video gaming operations as found at racetracks in other states, that 24 racetrack employees involved in the operation of video lottery gaming 25 pursuant to this section are licensed by the racing and wagering board, 26 and such other terms and conditions of licensure as the division may 27 establish. Notwithstanding any inconsistent provision of law, video 28 lottery gaming at a racetrack pursuant to this section shall be deemed 29 an approved activity for such racetrack under the relevant city, county, 30 town, or village land use or zoning ordinances, rules, or regulations. 31 No racetrack operating video lottery gaming pursuant to this section may 32 house such gaming activity in a structure deemed or approved by the 33 division as "temporary" for a duration of longer than eighteen-months. 34 S 9. This act shall take effect immediately; provided, that section 35 eight of this act shall take effect on the same date and in the same 36 manner as section 13 of chapter 140 of the laws of 2008 when upon such 37 date the provisions of section seven of this act, shall expire and be 38 deemed repealed; provided, further, that the amendments to section 39 1617-a of the tax law, made by sections seven and eight of this act, 40 shall not affect the expiration and repeal of such section, and shall 41 expire and be deemed repealed therewith; and provided further that the 42 amendments to section 212 of the racing, pari-mutuel wagering and breed- 43 ing law, made by section one of this act shall take effect on the same 44 date and in the same manner as such section takes effect pursuant to 45 chapter 18 of the laws of 2008. 46 PART HH 47 Section 1. Subdivision 1 of section 171-a of the tax law, as amended 48 by section 1 of part R of chapter 60 of the laws of 2004, is amended to 49 read as follows: 50 1. All taxes, interest, penalties and fees collected or received by 51 the commissioner or the commissioner's duly authorized agent under arti- 52 cles nine (except section one hundred eighty-two-a thereof and except as 53 otherwise provided in section two hundred five thereof), nine-A, 54 twelve-A (except as otherwise provided in section two hundred eighty- S. 60--A 174 A. 160--A 1 four-d thereof), thirteen, thirteen-A (except as otherwise provided in 2 section three hundred twelve thereof), eighteen, nineteen, twenty 3 (except as otherwise provided in section four hundred eighty-two there- 4 of), twenty-one, twenty-two, twenty-six, twenty-six-B, twenty-eight 5 (except as otherwise provided in section eleven hundred two [or], eleven 6 hundred three OR ELEVEN HUNDRED FIVE-D thereof), twenty-eight-A, thir- 7 ty-one (except as otherwise provided in section fourteen hundred twen- 8 ty-one thereof), thirty-two, thirty-three and thirty-three-A of this 9 chapter shall be deposited daily in one account with such responsible 10 banks, banking houses or trust companies as may be designated by the 11 comptroller, to the credit of the comptroller. Such an account may be 12 established in one or more of such depositories. Such deposits shall be 13 kept separate and apart from all other money in the possession of the 14 comptroller. The comptroller shall require adequate security from all 15 such depositories. Of the total revenue collected or received under such 16 articles of this chapter, the comptroller shall retain in the comp- 17 troller's hands such amount as the commissioner may determine to be 18 necessary for refunds or reimbursements under such articles of this 19 chapter [and article ten thereof] out of which amount the comptroller 20 shall pay any refunds or reimbursements to which taxpayers shall be 21 entitled under the provisions of such articles of this chapter [and 22 article ten thereof]. The commissioner and the comptroller shall main- 23 tain a system of accounts showing the amount of revenue collected or 24 received from each of the taxes imposed by such articles. The comp- 25 troller, after reserving the amount to pay such refunds or reimburse- 26 ments, shall, on or before the tenth day of each month, pay into the 27 state treasury to the credit of the general fund all revenue deposited 28 under this section during the preceding calendar month and remaining to 29 the comptroller's credit on the last day of such preceding month, (i) 30 except that the comptroller shall pay to the state department of social 31 services that amount of overpayments of tax imposed by article twenty- 32 two of this chapter and the interest on such amount which is certified 33 to the comptroller by the commissioner as the amount to be credited 34 against past-due support pursuant to subdivision six of section one 35 hundred seventy-one-c of this [chapter] ARTICLE, (ii) and except that 36 the comptroller shall pay to the New York state higher education 37 services corporation and the state university of New York or the city 38 university of New York respectively that amount of overpayments of tax 39 imposed by article twenty-two of this chapter and the interest on such 40 amount which is certified to the comptroller by the commissioner as the 41 amount to be credited against the amount of defaults in repayment of 42 guaranteed student loans and state university loans or city university 43 loans pursuant to subdivision five of section one hundred seventy-one-d 44 and subdivision six of section one hundred seventy-one-e of this [chap- 45 ter] ARTICLE, (iii) and except further that, notwithstanding any law, 46 the comptroller shall credit to the revenue arrearage account, pursuant 47 to section ninety-one-a of the state finance law, that amount of over- 48 payment of tax imposed by article nine, nine-A, twenty-two, thirty, 49 thirty-A, thirty-B, thirty-two or thirty-three of this chapter, and any 50 interest thereon, which is certified to the comptroller by the commis- 51 sioner as the amount to be credited against a past-due legally enforcea- 52 ble debt owed to a state agency pursuant to paragraph (a) of subdivision 53 six of section one hundred seventy-one-f of this article, provided, 54 however, [he] THE COMPTROLLER shall credit to the special offset fiduci- 55 ary account, pursuant to section ninety-one-c of the state finance law, 56 any such amount creditable as a liability as set forth in paragraph (b) S. 60--A 175 A. 160--A 1 of subdivision six of section one hundred seventy-one-f of this article, 2 (iv) and except further that the comptroller shall pay to the city of 3 New York that amount of overpayment of tax imposed by article nine, 4 nine-A, twenty-two, thirty, thirty-A, thirty-B, thirty-two, or thirty- 5 three of this chapter and any interest thereon that is certified to the 6 comptroller by the commissioner as the amount to be credited against 7 city of New York tax warrant judgment debt pursuant to section one 8 hundred seventy-one-l of this article, (v) and except further that the 9 comptroller shall pay to a non-obligated spouse that amount of overpay- 10 ment of tax imposed by article twenty-two of this chapter and the inter- 11 est on such amount which has been credited pursuant to section one 12 hundred seventy-one-c, one hundred seventy-one-d, one hundred seventy- 13 one-e, one hundred seventy-one-f or one hundred seventy-one-l of this 14 article and which is certified to the comptroller by the commissioner as 15 the amount due such non-obligated spouse pursuant to paragraph six of 16 subsection (b) of section six hundred fifty-one of this chapter; and 17 (vi) the comptroller shall deduct a like amount which the comptroller 18 shall pay into the treasury to the credit of the general fund from 19 amounts subsequently payable to the department of social services, the 20 state university of New York, the city university of New York, or the 21 higher education services corporation, or the revenue arrearage account 22 or special offset fiduciary account pursuant to section ninety-one-a or 23 ninety-one-c of the state finance law, as the case may be, whichever had 24 been credited the amount originally withheld from such overpayment, and 25 (vii) with respect to amounts originally withheld from such overpayment 26 pursuant to section one hundred seventy-one-l of this article and paid 27 to the city of New York, the comptroller shall collect a like amount 28 from the city of New York. 29 S 2. The tax law is amended by adding a new section 1105-D to read as 30 follows: 31 S 1105-D. ADDITIONAL STATE SALES AND COMPENSATING USE TAXES ON CERTAIN 32 BEVERAGE PRODUCTS. NOTWITHSTANDING ANY LAW TO THE CONTRARY: 33 (A) IMPOSITION OF ADDITIONAL TAXES. (1) IN ADDITION TO THE SALES AND 34 COMPENSATING USE TAXES IMPOSED BY SUBDIVISION (A) OF SECTION ELEVEN 35 HUNDRED FIVE AND CLAUSES (A) AND (B) OF SUBDIVISION (A) OF SECTION ELEV- 36 EN HUNDRED TEN OF THIS PART, THERE ARE HEREBY IMPOSED AND THERE SHALL BE 37 PAID ADDITIONAL SALES AND COMPENSATING USE TAXES, AT THE RATE OF EIGH- 38 TEEN PERCENT, ON (I) FRUIT DRINKS THAT CONTAIN LESS THAN SEVENTY PERCENT 39 OF NATURAL FRUIT JUICE AND (II) SOFT DRINKS, SODAS, AND BEVERAGES SUCH 40 AS ARE ORDINARILY DISPENSED AT SODA FOUNTAINS OR IN CONNECTION THEREWITH 41 (OTHER THAN COFFEE, TEA AND COCOA), WHETHER OR NOT THE ITEM IS SOLD IN 42 LIQUID FORM, WHICH EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION SHALL BE 43 IDENTICAL TO THE TAXES IMPOSED BY SUCH SUBDIVISION (A) OF SECTION ELEVEN 44 HUNDRED FIVE AND CLAUSES (A) AND (B) OF SUBDIVISION (A) OF SECTION ELEV- 45 EN HUNDRED TEN OF THIS PART. 46 (2) IN ADDITION TO THE SALES TAXES IMPOSED BY SUBDIVISION (D) AND 47 PARAGRAPH THREE OF SUBDIVISION (F) OF SECTION ELEVEN HUNDRED FIVE OF 48 THIS PART, THERE ARE HEREBY IMPOSED AND THERE SHALL BE PAID ADDITIONAL 49 SALES TAXES, AT THE RATE OF EIGHTEEN PERCENT, ON (I) FRUIT DRINKS WHICH 50 CONTAIN LESS THAN SEVENTY PERCENT OF NATURAL FRUIT JUICE AND (II) SOFT 51 DRINKS, SODAS AND BEVERAGES SUCH AS ARE ORDINARILY DISPENSED AT SODA 52 FOUNTAINS OR IN CONNECTION THEREWITH (OTHER THAN COFFEE, TEA AND COCOA), 53 WHETHER OR NOT THE ITEM IS SOLD IN LIQUID FORM, WHICH EXCEPT AS OTHER- 54 WISE PROVIDED IN THIS SECTION SHALL BE IDENTICAL TO THE TAXES IMPOSED BY 55 SUCH SUBDIVISION (D) AND PARAGRAPH THREE OF SUBDIVISION (F) OF SECTION 56 ELEVEN HUNDRED FIVE OF THIS PART. S. 60--A 176 A. 160--A 1 (B) SPECIAL RULES FOR COMPUTING RECEIPTS AND CONSIDERATION. (1) IF A 2 VENDOR SELLS, OR A RECIPIENT CHARGES FOR, A DRINK, SODA OR BEVERAGE 3 SUBJECT TO THE ADDITIONAL TAXES IMPOSED BY THIS SECTION TOGETHER WITH 4 OTHER PROPERTY OR WITH SERVICES (FOR EXAMPLE, AS PART OF A MEAL OR A 5 SPECIAL PROMOTION, OR MIXED WITH AN ALCOHOLIC OR OTHER BEVERAGE) OR 6 TOGETHER WITH A COVER, MINIMUM, ENTERTAINMENT OR OTHER CHARGE OR TOGETH- 7 ER WITH OTHER CHARGES OF A ROOF GARDEN, CABARET OR OTHER SIMILAR PLACE, 8 FOR A SINGLE PRICE OR CHARGE, AND THE VENDOR ALSO SEPARATELY SELLS, OR 9 THE RECIPIENT ALSO SEPARATELY CHARGES FOR, SUCH A DRINK, SODA OR BEVER- 10 AGE IN THE SAME FORM AND CONDITION, QUANTITIES, AND PACKAGING, THEN THE 11 TAX IMPOSED BY THIS SECTION SHALL APPLY TO THE AMOUNT AT WHICH THAT 12 VENDOR OR RECIPIENT SEPARATELY SELLS OR CHARGES FOR SUCH DRINK, SODA OR 13 BEVERAGE IN THE SAME FORM AND CONDITION, QUANTITY, AND PACKAGING. 14 (2) IF A VENDOR SELLS, OR A RECIPIENT CHARGES FOR, A DRINK, SODA, OR 15 BEVERAGE SUBJECT TO THE ADDITIONAL TAXES IMPOSED BY THIS SECTION TOGETH- 16 ER WITH OTHER PROPERTY OR WITH SERVICES (FOR EXAMPLE, AS PART OF A MEAL 17 OR A SPECIAL PROMOTION, OR MIXED WITH AN ALCOHOLIC OR OTHER BEVERAGE) OR 18 TOGETHER WITH A COVER, MINIMUM, ENTERTAINMENT OR OTHER CHARGE OR TOGETH- 19 ER WITH OTHER CHARGES OF A ROOF GARDEN, CABARET OR OTHER SIMILAR PLACE, 20 FOR A SINGLE PRICE OR CHARGE, BUT THE VENDOR DOES NOT SEPARATELY SELL, 21 OR THE RECIPIENT DOES NOT SEPARATELY CHARGE FOR, SUCH A DRINK, SODA OR 22 BEVERAGE IN THE SAME FORM AND CONDITION, QUANTITIES, AND PACKAGING, THEN 23 THE TAX IMPOSED BY THIS SECTION SHALL BE COMPUTED ON FIVE HUNDRED 24 PERCENT OF THE VENDOR'S OR RECIPIENT'S COST FOR SUCH DRINK, SODA OR 25 BEVERAGE. FOR PURPOSES OF THIS PARAGRAPH, "COST" MEANS THE CONSIDERATION 26 GIVEN OR CONTRACTED TO BE GIVEN FOR SUCH PROPERTY, OR FOR THE USE OF 27 SUCH PROPERTY, INCLUDING ANY CHARGES FOR SHIPPING OR DELIVERY AS 28 DESCRIBED IN PARAGRAPH THREE OF SUBDIVISION (B) OF SECTION ELEVEN 29 HUNDRED ONE OF THIS ARTICLE, BUT EXCLUDING ANY CREDIT FOR TANGIBLE 30 PERSONAL PROPERTY ACCEPTED IN PART PAYMENT AND INTENDED FOR RESALE. 31 (3) THE ADDITIONAL COMPENSATING USE TAX IMPOSED BY PARAGRAPH ONE OF 32 SUBDIVISION (A) OF THIS SECTION SHALL BE COMPUTED IN THE SAME MANNER AS 33 THE ADDITIONAL SALES TAX IS COMPUTED UNDER PARAGRAPH ONE OR TWO OF THIS 34 SUBDIVISION IN LIKE CIRCUMSTANCES. 35 (C) APPLICABILITY OF CERTAIN EXEMPTIONS AND EXCLUSIONS FROM TAX. (1) 36 THE EXEMPTIONS FOR PROVISIONS AND OTHER PROPERTY IN PARAGRAPHS EIGHT, 37 TWENTY-FOUR AND FORTY-THREE OF SUBDIVISION (A) AND IN SUBDIVISION (Z) OF 38 SECTION ELEVEN HUNDRED FIFTEEN OF THIS ARTICLE SHALL NOT APPLY TO THE 39 TAXES IMPOSED BY PARAGRAPH ONE OF SUBDIVISION (A) OF THIS SECTION. 40 (2) THE EXCLUSION FROM TAX IN SUBPARAGRAPH (B) OF PARAGRAPH (II) OF 41 SUBDIVISION (D) OF SECTION ELEVEN HUNDRED FIVE OF THIS PART SHALL NOT 42 APPLY TO THE TAX IMPOSED BY PARAGRAPH TWO OF SUBDIVISION (A) OF THIS 43 SECTION. 44 (3) SALES OF DRINK IN OR BY A RESTAURANT, TAVERN, OR OTHER ESTABLISH- 45 MENT OPERATED BY AN ORGANIZATION DESCRIBED IN PARAGRAPH ONE, FOUR, FIVE 46 OR SIX OF SUBDIVISION (A) OF SECTION ELEVEN HUNDRED SIXTEEN OF THIS 47 ARTICLE, INCLUDING SALES OTHERWISE EXEMPT UNDER PARAGRAPH (II) OF SUBDI- 48 VISION (D) OF SECTION ELEVEN HUNDRED FIVE OF THIS PART, SHALL BE SUBJECT 49 TO THE TAXES IMPOSED BY PARAGRAPH TWO OF SUBDIVISION (A) OF THIS 50 SECTION, UNLESS THE PURCHASER IS AN ORGANIZATION DESCRIBED IN SUBDIVI- 51 SION (A) OF SECTION ELEVEN HUNDRED SIXTEEN OF THIS ARTICLE. 52 (4) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO IMPOSE ANY TAX ON 53 FOOD EXEMPT FROM TAX PURSUANT TO SUBDIVISION (K) OF SECTION ELEVEN 54 HUNDRED FIFTEEN OF THIS ARTICLE. 55 (D) TAX FILERS UNDER SECTION TEN OF THIS CHAPTER FOR THE MONTHS OF 56 FEBRUARY AND MARCH, TWO THOUSAND NINE. IF A PERSON IS REQUIRED TO S. 60--A 177 A. 160--A 1 COLLECT OR PAY OR PAY OVER ANY TAX IMPOSED BY THIS SECTION AND THAT 2 PERSON IS REQUIRED TO MAKE PAYMENTS OF TAX IN ACCORD WITH SECTION TEN OF 3 THIS CHAPTER, THAT PERSON SHALL, FOR PURPOSES OF PAYMENTS REQUIRED TO BE 4 MADE UNDER SECTION TEN OF THIS CHAPTER DURING THE MONTHS OF FEBRUARY AND 5 MARCH, TWO THOUSAND NINE, INCLUDE IN THE PAYMENTS FOR EACH OF THOSE 6 MONTHS THE AMOUNT DESCRIBED IN SUBCLAUSE (II) OF CLAUSE (I) OF SUBPARA- 7 GRAPH (A) OF PARAGRAPH ONE OF SUBDIVISION (C) OF SECTION TEN OF THIS 8 CHAPTER WITH RESPECT TO THE LIABILITY FOR THE TAXES IMPOSED BY THIS 9 SECTION FOR SUCH MONTHS, TOGETHER WITH ANY OTHER AMOUNTS REQUIRED BY 10 SECTION TEN OF THIS CHAPTER FOR THOSE MONTHS. 11 (E) SEPARATE STATEMENT OF TAX. EVERY PERSON REQUIRED TO COLLECT THE 12 TAX IMPOSED BY THIS SECTION SHALL STATE, CHARGE, AND SHOW THAT TAX SEPA- 13 RATELY FROM THE PRICE OR CHARGE, AND ALSO SEPARATELY FROM ANY OTHER TAX 14 IMPOSED BY THIS ARTICLE OR OTHER LAW ON ANY SALES SLIP, INVOICE, RECEIPT 15 OR OTHER STATEMENT OR MEMORANDUM OF THE PRICE OR CHARGE, PAID OR PAYA- 16 BLE, GIVEN TO THE CUSTOMER. 17 (F) VENDOR COLLECTION CREDIT NOT TO INCLUDE TAX IMPOSED BY THIS 18 SECTION. THE TAXES IMPOSED BY, AND COLLECTED OR PAID OR PAID OVER UNDER, 19 THIS SECTION SHALL NOT BE INCLUDED OR CONSIDERED IN COMPUTING THE CREDIT 20 ALLOWED BY SUBDIVISION (F) OF SECTION ELEVEN HUNDRED THIRTY-SEVEN OF 21 THIS ARTICLE. 22 (G) INCORPORATION OF OTHER PROVISIONS OF THIS ARTICLE. EXCEPT AS 23 OTHERWISE PROVIDED IN THIS SECTION, SECTIONS ELEVEN HUNDRED FIVE AND 24 ELEVEN HUNDRED TEN AND THE OTHER SECTIONS OF THIS ARTICLE, INCLUDING THE 25 DEFINITION AND EXEMPTION PROVISIONS, SHALL APPLY FOR PURPOSES OF THE 26 TAXES IMPOSED BY THIS SECTION IN THE SAME MANNER AND WITH THE SAME FORCE 27 AND EFFECT AS IF THE LANGUAGE OF THOSE SECTIONS HAD BEEN INCORPORATED IN 28 FULL INTO THIS SECTION AND HAD EXPRESSLY REFERRED TO THE TAXES IMPOSED 29 BY THIS SECTION. 30 (H) TAXES TO BE IN ADDITION TO ANY OTHER. THE TAXES IMPOSED BY THIS 31 SECTION SHALL BE IN ADDITION TO ANY OTHER TAX IMPOSED OR AUTHORIZED TO 32 BE IMPOSED BY THIS CHAPTER OR OTHER LAW. 33 (I) TAXES NOT TO APPLY TO OTHER IMPOSITIONS. THE TAXES IMPOSED BY THIS 34 SECTION SHALL NOT APPLY TO THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED 35 SEVEN, ELEVEN HUNDRED EIGHT, OR ELEVEN HUNDRED NINE OF THIS PART OR TO 36 TAXES AUTHORIZED TO BE IMPOSED BY ARTICLE TWENTY-NINE OF THIS CHAPTER. 37 (J) DEPOSIT AND DISPOSITION OF REVENUE. ALL TAXES, FEES, INTEREST, AND 38 PENALTIES COLLECTED OR RECEIVED BY THE COMMISSIONER UNDER THIS SECTION 39 SHALL BE DEPOSITED AND DISPOSED OF PURSUANT TO THE PROVISIONS OF SECTION 40 ONE HUNDRED SEVENTY-ONE-A OF THIS CHAPTER. HOWEVER, ALL OF THOSE TAXES, 41 INTEREST AND PENALTIES SHALL BE DEPOSITED TO THE CREDIT OF THE TOBACCO 42 CONTROL AND INSURANCE INITIATIVES POOL TO BE ESTABLISHED AND DISTRIBUTED 43 BY THE COMMISSIONER OF HEALTH IN ACCORDANCE WITH SECTION TWENTY-EIGHT 44 HUNDRED SEVEN-V OF THE PUBLIC HEALTH LAW. TO EFFECT THE DEPOSIT AND 45 DISPOSITION OF REVENUES ARISING FROM THE TAXES IMPOSED BY THIS SECTION 46 DURING PERIODS FOR WHICH THE COMMISSIONER DOES NOT HAVE ADEQUATE DATA, 47 THE COMMISSIONER IS AUTHORIZED TO ESTIMATE THE AMOUNT OF THOSE TAXES FOR 48 ANY PERIOD AND TO CERTIFY SUCH AMOUNTS AS REQUIRED BASED ON SUCH ESTI- 49 MATES. THESE ESTIMATES MAY BE BASED ON INFORMATION AVAILABLE TO THE 50 COMMISSIONER AT THE TIME DISTRIBUTIONS SHALL BE MADE UNDER THIS SUBDIVI- 51 SION AND MAY BE ESTIMATED ON THE BASIS OF RESPECTIVE STATE AND LOCAL 52 SALES AND COMPENSATING USE TAX RATES, PERCENTAGES, OR OTHER INDICES 53 CALCULATED FROM RETURNS, REPORTS, OR DISTRIBUTIONS FROM PRIOR PERIODS 54 FOR THESE OR OTHER PERIODS OR WITH RESPECT TO SALES AND COMPENSATING USE 55 TAXES IMPOSED BY COUNTIES AND CITIES THAT IMPOSE TAXES PURSUANT TO 56 SUBDIVISION (A) OF SECTION TWELVE HUNDRED TEN OF THIS CHAPTER. THE S. 60--A 178 A. 160--A 1 COMMISSIONER IS AUTHORIZED TO REQUIRE WHATEVER INFORMATION THE COMMIS- 2 SIONER DEEMS NECESSARY TO COMPLY WITH THE REQUIREMENTS OF THIS SUBDIVI- 3 SION FROM PERSONS REQUIRED TO FILE RETURNS, REPORTS, OR SCHEDULES UNDER 4 THIS SECTION. IF ESTIMATED DISTRIBUTIONS ARE MADE UNDER THIS SECTION, 5 THEY MUST BE RECONCILED BASED ON TAX RETURNS AS SOON AS IS PRACTICABLE. 6 NEITHER THE COMMISSIONER NOR THE COMPTROLLER SHALL BE HELD LIABLE FOR 7 ANY INACCURACY IN THE DETERMINATIONS AND CERTIFICATIONS MADE PURSUANT TO 8 THIS SUBDIVISION. ANY OVERPAYMENT OR UNDERPAYMENT SHALL BE ADJUSTED IN 9 THE MANNER DESCRIBED IN SUBDIVISION (C) OF SECTION TWELVE HUNDRED 10 SIXTY-ONE OF THIS CHAPTER, PROVIDED THAT NO INTEREST IS TO BE PAID ON 11 ANY OVERPAYMENT OR UNDERPAYMENT. 12 (K) THIS SECTION SHALL NOT APPLY TO DIET SODA OR TO WATER PRODUCTS. 13 "DIET SODA" MEANS NON-ALCOHOLIC CARBONATED BEVERAGE THAT DOES NOT 14 CONTAIN SUGAR AND IS SWEETENED WITH ARTIFICIAL SWEETENER. "WATER 15 PRODUCTS" MEANS PLAIN WATER, PLAIN WATER TO WHICH ONLY CARBONATION HAS 16 BEEN ADDED, AND PLAIN WATER, CARBONATED OR NOT, WITH MERE NATURAL 17 FLAVORINGS ADDED, BUT NOT INCLUDING ANY CARBONATED WATER THAT CONTAINS 18 SUGAR, FRUIT JUICE, OR OTHER ADDITIVES OR FLAVORINGS. 19 S 3. Paragraph 1 of subdivision (a) of section 1115 of the tax law, as 20 amended by section 1 of part O of chapter 63 of the laws of 2000, is 21 amended to read as follows: 22 (1) Food, food products, beverages, dietary foods and health supple- 23 ments, sold for human consumption but not including (i) candy and 24 confectionery, (ii) fruit drinks which contain less than seventy percent 25 of natural fruit juice, (iii) soft drinks, sodas and beverages such as 26 are ordinarily dispensed at soda fountains or in connection therewith 27 (other than coffee, tea and cocoa) and (iv) beer, wine or other alcohol- 28 ic beverages, all of which shall be subject to the retail sales and 29 compensating use taxes, whether or not the item is sold in liquid form. 30 The food [and drink] excluded from the exemption provided by this para- 31 graph under [subparagraphs] SUBPARAGRAPH (i)[, (ii) and (iii)] of this 32 paragraph shall be exempt under this paragraph when sold for seventy- 33 five cents or less through any vending machine activated by the use of 34 coin, currency, credit card or debit card. With the exception of the 35 provision in this paragraph providing for an exemption for certain food 36 [or drink] sold for seventy-five cents or less through vending machines, 37 nothing herein shall be construed as exempting food or drink from the 38 tax imposed under subdivision (d) of section eleven hundred five OF THIS 39 ARTICLE. 40 S 4. Subparagraph 15 of paragraph j of subdivision 1 of section 54 of 41 the state finance law, as added by chapter 430 of the laws of 1997, is 42 amended to read as follows: 43 (15) article twenty-eight of the tax law, EXCEPT TAXES, PENALTIES AND 44 INTEREST IMPOSED BY SECTION ELEVEN HUNDRED FIVE-D OF THE TAX LAW; 45 S 5. Subdivisions (g) and (k) of section 1817 of the tax law, subdivi- 46 sion (g) as amended by chapter 412 of the laws of 1986 and subdivision 47 (k) as amended by chapter 3 of the laws of 2004, are amended to read as 48 follows: 49 (g) Any person (1) who willfully fails to charge separately [the] ANY 50 tax OR TAXES imposed under article twenty-eight of this chapter or to 51 state [such] ANY SUCH tax OR TAXES separately on any bill, statement, 52 memorandum or receipt issued or employed by [him] SUCH PERSON upon which 53 the tax is required to be stated separately as provided in subdivision 54 (a) of section eleven hundred thirty-two OR SECTION ELEVEN HUNDRED 55 FIVE-D of this chapter; or (2) who shall refer or cause reference to be S. 60--A 179 A. 160--A 1 made to ANY such tax OR TAXES in a form or manner other than that 2 required by such article twenty-eight, shall be guilty of a misdemeanor. 3 (k) The penalties provided for in this section shall not preclude 4 prosecution pursuant to the penal law with respect to the willful fail- 5 ure of any person to pay over to the state any sales tax imposed by 6 section eleven hundred four, eleven hundred five, ELEVEN HUNDRED FIVE-D, 7 eleven hundred seven, eleven hundred eight or eleven hundred nine of 8 this chapter or by any local law adopted by any city or county pursuant 9 to article twenty-nine of this chapter, whenever such person has been 10 required to collect and has collected any such sales tax. In any such 11 prosecution under the penal law, a person who has been required to 12 collect and has collected any such tax shall be deemed to have acted in 13 a fiduciary character with respect to the state or a political subdivi- 14 sion thereof, and the tax OR TAXES collected shall be deemed to have 15 been entrusted to such person by the state or a political subdivision 16 thereof. 17 S 6. Subdivisions (a) and (b) of section 92-dd of the state finance 18 law, as added by section 89 of part B of chapter 58 of the laws of 2005, 19 are amended to read as follows: 20 (a) On and after April first, two thousand five, such fund shall 21 consist of the revenues heretofore and hereafter collected or required 22 to be deposited pursuant to paragraph (a) of subdivision eighteen of 23 section twenty-eight hundred seven-c, and sections twenty-eight hundred 24 seven-j, twenty-eight hundred seven-s and twenty-eight hundred seven-t 25 of the public health law, [section] SECTIONS four hundred eighty-two AND 26 ELEVEN HUNDRED FIVE-D of the tax law and required to be credited to the 27 tobacco control and insurance initiatives pool, subparagraph (O) of 28 paragraph four of subsection (j) of section four thousand three hundred 29 one of the insurance law, section twenty-seven of part A of chapter one 30 of the laws of two thousand two and all other moneys credited or trans- 31 ferred thereto from any other fund or source pursuant to law. 32 (b) The pool administrator under contract with the commissioner of 33 health pursuant to section twenty-eight hundred seven-y of the public 34 health law shall continue to collect moneys required to be collected or 35 deposited pursuant to paragraph (a) of subdivision eighteen of section 36 twenty-eight hundred seven-c, and sections twenty-eight hundred seven-j, 37 twenty-eight hundred seven-s and twenty-eight hundred seven-t of the 38 public health law, and shall deposit such moneys in the HCRA resources 39 fund. The comptroller shall deposit moneys collected or required to be 40 deposited pursuant to [section] SECTIONS four hundred eighty-two AND 41 ELEVEN HUNDRED FIVE-D of the tax law and required to be credited to the 42 tobacco control and insurance initiatives pool, subparagraph (O) of 43 paragraph four of subsection (j) of section four thousand three hundred 44 one of the insurance law, section twenty-seven of part A of chapter one 45 of the laws of two thousand two and all other moneys credited or trans- 46 ferred thereto from any other fund or source pursuant to law in the HCRA 47 resources fund. 48 S 7. This act shall take effect June 1, 2009, and shall apply to sales 49 and charges made, uses occurring and services rendered on and after such 50 date, in accordance with applicable transitional provisions in section 51 1106 of the tax law. 52 PART II 53 Section 1. Section 1 of part J of chapter 405 of the laws of 1999, 54 amending the real property tax law relating to improving the adminis- S. 60--A 180 A. 160--A 1 tration of the school tax relief (STAR) program, as amended by section 3 2 of part PP-1 of chapter 57 of the laws of 2008, is amended to read as 3 follows: 4 Section 1. Notwithstanding the provisions of article 5 of the general 5 construction law, the provisions of the tax law amended by sections 6 94-a, 94-d and 94-g of chapter 2 of the laws of 1995 are hereby revived 7 and shall continue in full force and effect as they existed on March 31, 8 1999 [through May 31, 2010, when upon such date they shall expire and be 9 repealed]. Sections 1, 2, 3, 4, and 5, and such part of section 10 of 10 chapter 336 of the laws of 1999 as relates to providing for the effec- 11 tiveness of such sections 1, 2, 3, 4 and 5 shall be nullified in effect 12 on the effective date of this section, except that the amendments made 13 to: paragraph (2) of subdivision a of section 1612 of the tax law by 14 such section 1; and subdivision b of section 1612 of the tax law by such 15 section 2; and the repeal of section 152 of chapter 166 of the laws of 16 1991 made by such section 5 shall continue to remain in effect. 17 S 2. Paragraph 1 of subdivision a of section 1612 of the tax law, as 18 amended by chapter 336 of the laws of 1999, is amended to read as 19 follows: 20 (1) sixty percent of the total amount for which tickets have been sold 21 for a lawful lottery game introduced on or after the effective date of 22 this paragraph[, subject to the following provisions: 23 (A) drawings in such game shall be held during no more than thirteen 24 hours each day, no more than eight hours of which shall be consecutive; 25 (B) such game shall be available only on premises occupied by licensed 26 lottery sales agents, subject to the following provisions: 27 (i) if the licensee holds a license issued pursuant to the alcoholic 28 beverage control law to sell alcoholic beverages for consumption on the 29 premises, then not less than twenty-five percent of the gross sales must 30 result from sales of food; 31 (ii) if the licensee does not hold a license issued pursuant to the 32 alcoholic beverage control law to sell alcoholic beverages for consump- 33 tion on the premises, then the premises must have a minimum square 34 footage greater than two thousand five hundred square feet; 35 (iii) notwithstanding the foregoing provisions, television equipment 36 that automatically displays the results of such drawings may be 37 installed and used without regard to the percentage of food sales or the 38 square footage if such premises are used as: 39 (I) a commercial bowling establishment, or 40 (II) a facility authorized under the racing, pari-mutuel wagering and 41 breeding law to accept pari-mutuel wagers; 42 (C) the rules for the operation of such game shall be as prescribed by 43 regulations promulgated and adopted by the division, provided however, 44 that such rules shall provide that no person under the age of twenty-one 45 may participate in such games on the premises of a licensee who holds a 46 license issued pursuant to the alcoholic beverage control law to sell 47 alcoholic beverages for consumption on the premises; and, provided, 48 further, that such regulations may be revised on an emergency basis not 49 later than ninety days after the enactment of this paragraph in order to 50 conform such regulations to the requirements of this paragraph]; or 51 S 3. This act shall take effect immediately. 52 PART JJ 53 Section 1. Section 1617 of the tax law, as added by section 3 of part 54 D of chapter 383 of the laws of 2001, is amended to read as follows: S. 60--A 181 A. 160--A 1 S 1617. Joint, multi-jurisdiction, and out-of-state lottery. The 2 director may enter into an agreement with a government-authorized group 3 of one or more other jurisdictions providing for the operation and 4 administration of a joint, multi-jurisdiction, and out-of-state 5 lottery[, except the director may not agree to participate in the games 6 of more than one such group at any single time]. Such a joint, multi- 7 jurisdiction, and out-of-state lottery game or games may include a 8 combined drawing, a combined prize pool, the transfer of sales and prize 9 monies to other jurisdictions as may be necessary, and such other coop- 10 erative arrangements as the director deems necessary or desirable. 11 S 2. This act shall take effect immediately. 12 PART KK 13 Section 1. The alcoholic beverage control law is amended by adding a 14 new section 79-e to read as follows: 15 S 79-E. GROCERY OR DRUG STORE WINE LICENSE. 1. ANY PERSON MAY APPLY 16 TO THE AUTHORITY FOR A LICENSE TO SELL FROM THE LICENSED PREMISES WINE 17 IN SEALED CONTAINERS FOR CONSUMPTION OFF SUCH PREMISES. 18 2. NO SUCH LICENSE SHALL BE ISSUED, HOWEVER, TO ANY PERSON FOR ANY 19 PREMISES OTHER THAN A GROCERY STORE, AS DEFINED IN SUBDIVISION THIRTEEN 20 OF SECTION THREE OF THIS CHAPTER, OR A DRUG STORE, AS DEFINED IN SUBDI- 21 VISION TWELVE OF SECTION THREE OF THIS CHAPTER. 22 3. (A) NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, EXCEPT FOR 23 GOOD CAUSE SHOWN, THE AUTHORITY SHALL ISSUE A GROCERY STORE OR DRUG 24 STORE WINE LICENSE TO THE HOLDER OF A LICENSE TO SELL BEER AT RETAIL FOR 25 CONSUMPTION OFF THE PREMISES PURSUANT TO SECTION FIFTY-FOUR OF THIS 26 CHAPTER, OR BEER AND WINE PRODUCTS AT RETAIL FOR CONSUMPTION OFF THE 27 PREMISES PURSUANT TO SECTION FIFTY-FOUR-A OF THIS CHAPTER, AT THE 28 REQUEST OF SUCH LICENSEE. 29 (B) FOR THE PURPOSES OF THIS SUBDIVISION, THE PREMISES OF THE GROCERY 30 STORE OR DRUG STORE WINE LICENSEE SHALL BE THE SAME AS THE PREMISES 31 LICENSED UNDER SECTION FIFTY-FOUR OR FIFTY-FOUR-A OF THIS CHAPTER. 32 (C) NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, ANY LICENSE 33 ISSUED PURSUANT TO THIS SECTION SHALL RUN CONCURRENTLY WITH THE UNDERLY- 34 ING LICENSE UNDER SECTION FIFTY-FOUR OR FIFTY-FOUR-A OF THIS CHAPTER, 35 AND SHALL BE DEEMED EXPIRED AT SUCH TIME AS THE UNDERLYING LICENSE 36 EXPIRES. 37 4. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, THE AUTHORITY 38 MAY ISSUE A LICENSE UNDER THIS SECTION TO THE HOLDER OF A LICENSE TO 39 SELL WINE AT RETAIL FOR CONSUMPTION OFF THE PREMISES PURSUANT TO SECTION 40 SEVENTY-NINE OF THIS ARTICLE, PROVIDED THAT: (A) THE LICENSEE MEETS THE 41 REQUIREMENTS OF SUBDIVISION TWO OF THIS SECTION; AND (B) UPON ISSUANCE 42 OF A LICENSE, THE LICENSEE UNDER THIS SECTION SURRENDERS THE LICENSE 43 CERTIFICATE ISSUED PURSUANT TO SUCH SECTION SEVENTY-NINE. 44 5. SUCH APPLICATION SHALL BE IN SUCH FORM AND SHALL CONTAIN SUCH 45 INFORMATION AS SHALL BE REQUIRED BY THE RULES OF THE AUTHORITY AND SHALL 46 BE ACCOMPANIED BY A CHECK OR DRAFT IN THE AMOUNT REQUIRED BY THIS ARTI- 47 CLE FOR SUCH LICENSE. 48 6. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, ANY PERSON 49 RECEIVING A LICENSE PURSUANT TO THIS SECTION SHALL NOT BE SUBJECT TO THE 50 PROVISIONS OF SUBDIVISION TWO, THREE OR FOUR OF SECTION SEVENTY-NINE OF 51 THIS ARTICLE. 52 7. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, ANY PERSON 53 RECEIVING A LICENSE PURSUANT TO THIS SECTION SHALL NOT BE SUBJECT TO THE 54 PROVISIONS OF SECTION EIGHTY OF THIS ARTICLE. S. 60--A 182 A. 160--A 1 8. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, ANY PERSON 2 RECEIVING A LICENSE PURSUANT TO THIS SECTION SHALL NOT BE SUBJECT TO THE 3 PROVISIONS OF SUBDIVISION TWO, PARAGRAPH (A) OF SUBDIVISION THREE, PARA- 4 GRAPH (B) OF SUBDIVISION TEN, OR PARAGRAPH (C) OF SUBDIVISION TEN OF 5 SECTION ONE HUNDRED FIVE OF THIS CHAPTER. 6 9. (A) A ONE-TIME FRANCHISE FEE SHALL BE PAID FOR BY EACH RETAIL 7 OUTLET TO THE STATE LIQUOR AUTHORITY. THIS FRANCHISE FEE IS HEREBY 8 IMPOSED AT A RATE OF 0.46 OF ONE PERCENT OF THE TOTAL GROSS SALES OF THE 9 LICENSEE IN THE PREVIOUS YEAR. 10 (B) IN THE EVENT AN APPLICANT HAS BEEN IN BUSINESS FOR LESS THAN 11 TWELVE MONTHS PRIOR TO THE FILING OF THE APPLICATION FOR THIS LICENSE, 12 SUCH APPLICANT SHALL, IN ACCORDANCE WITH THE RULES OF THE AUTHORITY, 13 REMIT AN ESTIMATE OF ITS FRANCHISE FEE BASED ON SQUARE FOOTAGE AT A 14 LICENSEE'S LOCATION PURSUANT TO THE FOLLOWING SCHEDULE: 15 SQUARE FOOTAGE AT FRANCHISE FEE 16 LICENSEE'S LOCATION PER LOCATION 17 0-999 $825 18 1,000-1,999 $1,650 19 2,000-3,999 $3,300 20 4,000-9,999 $8,250 21 10,000-19,999 $16,500 22 20,000-24,999 $33,000 23 25,000-29,999 $82,500 24 30,000-39,999 $132,000 25 40,000 AND GREATER $495,000 26 WITHIN SIXTY DAYS AFTER SUCH LICENSEE SHALL HAVE BEEN IN BUSINESS FOR 27 TWELVE MONTHS, SUCH LICENSEE SHALL SUBMIT TO THE AUTHORITY, IN ACCORD- 28 ANCE WITH THE RULES OF THE AUTHORITY, A STATEMENT SHOWING ITS ACTUAL 29 TOTAL GROSS SALES FOR THE FIRST TWELVE MONTHS OF OPERATION AND THE FRAN- 30 CHISE FEE DUE PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION. IN THE 31 EVENT THE FRANCHISE FEE DETERMINED PURSUANT TO SUCH PARAGRAPH EXCEEDS 32 THE AMOUNT PAID PURSUANT TO THIS PARAGRAPH, THE LICENSEE SHALL REMIT 33 PAYMENT FOR THE BALANCE OF THE REQUIRED FRANCHISE FEE WITHIN SUCH 34 SIXTY-DAY PERIOD. FAILURE TO REMIT PAYMENT WITHIN SUCH SIXTY-DAY PERIOD 35 SHALL BE GROUNDS FOR CANCELLATION OR REVOCATION OF SUCH LICENSE. IN THE 36 EVENT THAT THE FRANCHISE FEE DUE PURSUANT TO PARAGRAPH (A) OF THIS 37 SUBDIVISION IS LESS THAN THE AMOUNT PAID PURSUANT TO THIS PARAGRAPH, THE 38 LICENSEE SHALL BE ENTITLED TO A REFUND EQUAL TO THE DIFFERENCE BETWEEN 39 THE FRANCHISE FEE PAID PURSUANT TO THIS PARAGRAPH AND THE AMOUNT DUE 40 PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION. 41 (C) NO LICENSE SHALL BE ISSUED PURSUANT TO THIS SECTION UNTIL THE 42 FRANCHISE FEE OR ESTIMATED FRANCHISE FEE UNDER THIS SUBDIVISION REQUIRED 43 BY EITHER PARAGRAPH (A) OR (B) OF THIS SUBDIVISION HAS BEEN PAID IN 44 FULL. 45 (D) THE FRANCHISE FEE SHALL BE DEPOSITED AND DISPOSED OF IN THE SAME 46 MANNER AS ANY LICENSE FEE AS PROVIDED IN SECTION ONE HUNDRED TWENTY-FIVE 47 OF THIS CHAPTER. 48 10. THE STATE LIQUOR AUTHORITY MAY MAKE SUCH RULES AS IT DEEMS NECES- 49 SARY TO CARRY OUT THE PROVISIONS OF THIS SECTION. 50 S 2. Section 83 of the alcoholic beverage control law is amended by 51 adding a new subdivision 8 to read as follows: 52 8. THE ANNUAL FEE FOR A GROCERY OR DRUG STORE WINE LICENSE PURSUANT TO 53 SECTION SEVENTY-NINE-E OF THIS ARTICLE SHALL BE ONE HUNDRED TEN DOLLARS. 54 WHERE, HOWEVER, THE APPLICANT IS THE HOLDER OF TWO OR MORE SUCH 55 LICENSES, THE ANNUAL FEE FOR EACH ADDITIONAL LICENSE SHALL BE DOUBLE THE 56 AMOUNT HEREINABOVE SET FORTH. S. 60--A 183 A. 160--A 1 S 3. Subdivision 2-a of section 100 of the alcoholic beverage control 2 law, as amended by chapter 249 of the laws of 2002, is amended to read 3 as follows: 4 2-a. No retailer shall employ, or permit to be employed, or shall 5 suffer to work, on any premises licensed for retail sale hereunder, any 6 person under the age of eighteen years, as a hostess, waitress, waiter, 7 or in any other capacity where the duties of such person require or 8 permit such person to sell, dispense or handle alcoholic beverages; 9 except that: (1) any person under the age of eighteen years and employed 10 by any person holding a grocery or drug store beer license shall be 11 permitted to handle and deliver beer and wine products for such licen- 12 see, (2) any person under the age of eighteen employed as a cashier by a 13 person holding a grocery or drug store beer license shall be permitted 14 to record and receive payment for beer and wine product sales when in 15 the presence of and under the direct supervision of a person eighteen 16 years of age or over, (2-a) any person under the age of eighteen years 17 and employed by a person holding a grocery store or drug store beer 18 license as either a cashier or in any other position to which handling 19 of containers which may have held alcoholic beverages is necessary, 20 shall be permitted to handle the containers if such have been presented 21 for redemption in accordance with the provisions of title ten of article 22 twenty-seven of the environmental conservation law, [and] (3) any person 23 under the age of eighteen years employed as a dishwasher, busboy, or 24 other such position as to which handling of containers which may have 25 held alcoholic beverages is necessary shall be permitted to do so under 26 the direct supervision of a person of legal age to purchase alcoholic 27 beverages in the state, (4) ANY PERSON UNDER THE AGE OF EIGHTEEN YEARS 28 AND EMPLOYED BY ANY PERSON HOLDING A GROCERY OR DRUG STORE WINE LICENSE 29 SHALL BE PERMITTED TO HANDLE AND DELIVER WINE FOR SUCH LICENSEE, AND (5) 30 ANY PERSON UNDER THE AGE OF EIGHTEEN EMPLOYED AS A CASHIER BY A PERSON 31 HOLDING A GROCERY OR DRUG STORE WINE LICENSE SHALL BE PERMITTED TO 32 RECORD AND RECEIVE PAYMENT FOR WINE WHEN IN THE PRESENCE OF AND UNDER 33 THE DIRECT SUPERVISION OF A PERSON EIGHTEEN YEARS OF AGE OR OVER. 34 S 4. This act shall take effect on the one hundred eightieth day after 35 it shall have become a law. 36 PART LL 37 Section 1. Paragraphs (a), (b), (c), and (d) of subdivision 1 of 38 section 424 of the tax law, paragraph (a) as amended by section 1 of 39 part V of chapter 63 of the laws of 2000, paragraph (b) as amended by 40 chapter 490 of the laws of 1993, and paragraphs (c) and (d) as amended 41 by chapter 170 of the laws of 1994, are amended to read as follows: 42 (a) [Eleven] TWENTY-FOUR cents per gallon upon beers; 43 (b) [Eighteen and ninety-three hundredths] FIFTY-ONE cents per gallon 44 upon still wines, except cider containing more than three and two-tenths 45 per centum of alcohol by volume, upon which the tax shall be three and 46 seventy-nine hundredths cents per gallon; 47 (c) [Eighteen and ninety-three hundredths] FIFTY-ONE cents per gallon 48 upon artificially carbonated sparkling wines, except artificially carbo- 49 nated sparkling cider containing more than three and two-tenths per 50 centum of alcohol by volume, upon which the tax shall be three and 51 seventy-nine hundredths cents per gallon; 52 (d) [Eighteen and ninety-three hundredths] FIFTY-ONE cents per gallon 53 upon natural sparkling wines, except natural sparkling cider containing 54 more than three and two-tenths per centum of alcohol by volume, upon S. 60--A 184 A. 160--A 1 which the tax shall be three and seventy-nine hundredths cents per 2 gallon; 3 S 2. (a) If a contract for the sale of beer and wines was entered into 4 prior to April 1, 2009 and delivery under that contract is made within 5 the state on or after April 1, 2009, the beer and wines sold under that 6 contract will be subject to tax under article 18 of the tax law, as 7 amended by this act, at the time of delivery. 8 (b) In order to subject beer and wines in this state on April 1, 2009 9 to the increased taxes imposed by section one of this act, a special 10 floor tax is imposed on each wholesaler or retailer (as defined in the 11 alcoholic beverage control law) or other sellers of beer and wine, other 12 than those registered as distributors under article 18 of the tax law, 13 at the rates shown below with respect to all beer and wines in the 14 possession or under the control on April 1, 2009 of those wholesalers, 15 retailers and other sellers of beer and wines for purposes of sale in 16 the state. Additionally, any person who is a distributor or manufacturer 17 under article 18 of the tax law is subject to this special floor tax on 18 any beer and wines in his or her possession or under his or her control 19 on which the tax under article 18 of the tax law was already imposed. 20 The rate of the floor tax will be: 21 (1) On beer, thirteen cents per gallon; and 22 (2) On wines, thirty-two and seven hundredths cents per gallon. 23 This floor tax will be due and payable to the commissioner of taxation 24 and finance on or before June 22, 2009. 25 (c) Except as provided in this section, all the provisions of articles 26 18 and 37 of the tax law will apply to floor taxes imposed by this 27 section. 28 (d) The commissioner of taxation and finance is authorized to 29 prescribe any terms and conditions the commissioner deems advisable and 30 require any reports the commissioner deems necessary to effectuate the 31 provisions of this section. 32 (e) The commissioner of taxation and finance may request from the 33 state liquor authority, and the state liquor authority is authorized and 34 directed to provide, any cooperation and assistance, including data, 35 that will enable the commissioner to carry out the imposition and imple- 36 mentation of the floor tax. 37 S 3. This act shall take effect April 1, 2009. 38 PART MM 39 Section 1. Paragraph 1 of subdivision (a) of section 1160 of the tax 40 law, as added by chapter 190 of the laws of 1990, is amended to read as 41 follows: 42 (1) [On and after June first, nineteen hundred ninety, in] IN addition 43 to any tax imposed under any other article of this chapter, there is 44 hereby imposed and there shall be paid a tax of [five] SIX percent upon 45 the receipts from every rental of a passenger car which is a retail sale 46 of such passenger car. 47 S 2. Paragraph 2 of subdivision (a) of section 1160 of the tax law, as 48 amended by chapter 166 of the laws of 1991, is amended to read as 49 follows: 50 (2) Except to the extent that a passenger car rental described in 51 paragraph one of this subdivision has already been or will be subject to 52 the tax imposed under such paragraph and except as otherwise exempted 53 under this article, there is hereby imposed on every person and there 54 shall be paid a use tax for the use within this state [on and after June S. 60--A 185 A. 160--A 1 first, nineteen hundred ninety] of any passenger car rented by the user, 2 which is a purchase at retail of such passenger car, but not including 3 any lease of a passenger car to which subdivision (i) of section eleven 4 hundred eleven of this chapter applies. For purposes of this paragraph, 5 the tax shall be at the rate of [five] SIX percent of the consideration 6 given or contracted to be given for such property, or for the use of 7 such property, including any charges for shipping or delivery as 8 described in paragraph three of subdivision (b) of section eleven 9 hundred one of this chapter, but excluding any credit for tangible 10 personal property accepted in part payment and intended for resale. 11 S 3. This act shall take effect June 1, 2009, and shall apply to sales 12 made or uses occurring on or after such date in accordance with applica- 13 ble transitional provisions in sections 1106 and 1217 of the tax law. 14 PART NN 15 Section 1. Subdivision (b) of section 1101 of the tax law is amended 16 by adding a new paragraph 34 to read as follows: 17 (34) "TRANSPORTATION SERVICE" SHALL MEAN THE SERVICE OF TRANSPORTING, 18 CARRYING OR CONVEYING A PERSON OR PERSONS BY ANY MEANS, INCLUDING BUT 19 NOT LIMITED TO (I) TAXICAB, CHARTER, BLACK CAR, LIMOUSINE, COACH, 20 FOR-HIRE VEHICLE, COMMUTER VAN, OR OTHER VEHICLE SERVICE, (II) 21 HORSE-DRAWN CAB OR COACH SERVICE, AND PEDICAB SERVICE, (III) INTRA-STATE 22 CHARTER BUS, VESSEL, TRAIN, AND PLANE SERVICE, (IV) CHARTER FISHING 23 SERVICE, AND (V) SIGHTSEEING SERVICE REGARDLESS OF WHETHER SCHEDULED OR 24 THE MEANS OF CONVEYANCE; WHETHER ONE-WAY OR ROUND-TRIP; WHETHER TO A 25 SINGLE DESTINATION OR TO MULTIPLE DESTINATIONS; AND WHETHER THE COMPEN- 26 SATION PAID BY OR ON BEHALF OF THE PASSENGER IS BASED ON MILEAGE, TRIP, 27 TIME CONSUMED OR ANY OTHER BASIS. A SERVICE THAT BEGINS AND ENDS IN 28 THIS STATE IS DEEMED INTRA-STATE EVEN IF IT PASSES OUTSIDE THIS STATE 29 DURING A PORTION OF THE TRIP. HOWEVER, TRANSPORTATION SERVICE DOES NOT 30 INCLUDE (I) "COMMUTER SERVICE" CONSISTING OF MASS TRANSPORTATION 31 SERVICE, LOCAL TRANSIT SERVICE, SUBWAY OR COMMUTER RAIL SERVICE, AND 32 OTHER SCHEDULED SERVICE; (II) VESSEL OR FERRY SERVICE DESCRIBED IN 33 SUBDIVISION (B) OF SECTION ELEVEN HUNDRED NINETEEN OR PARAGRAPH 34 FORTY-THREE OF SUBDIVISION (A) OF SECTION ELEVEN HUNDRED FIFTEEN OF THIS 35 ARTICLE, (III) THE TRANSPORTATION OF CHILDREN TO AND FROM SCHOOLS AND 36 DAY CAMPS OPERATED BY AN ENTITY OR ORGANIZATION DESCRIBED IN PARAGRAPH 37 ONE, TWO, THREE, FOUR, OR SIX OF SUBDIVISION (A) OF SECTION ELEVEN 38 HUNDRED SIXTEEN OF THIS ARTICLE, (IV) TRANSPORTATION OF PERSONS IN 39 CONNECTION WITH FUNERALS, OR (V) AMBULANCE, AMBULETTE, OR EMERGENCY 40 SERVICE TRANSPORTATION, WHETHER GROUND, WATER, OR AIR. TRANSPORTATION 41 SERVICE INCLUDES TRANSPORTING, CARRYING, OR CONVEYING PROPERTY OF THE 42 PERSON BEING TRANSPORTED, WHETHER OWNED BY OR IN THE CARE OF SUCH 43 PERSON. IN ADDITION TO WHAT IS INCLUDED IN THE DEFINITION OF "RECEIPT" 44 IN PARAGRAPH THREE OF THIS SUBDIVISION, RECEIPTS FROM THE SALE OF TRANS- 45 PORTATION SERVICE SUBJECT TO TAX INCLUDE ANY HANDLING, CARRYING, 46 BAGGAGE, BOOKING SERVICE, ADMINISTRATIVE OR OTHER CHARGE, OF ANY NATURE, 47 MADE IN CONJUNCTION WITH THE TRANSPORTATION SERVICE. 48 S 2. Subdivision (c) of section 1105 of the tax law is amended by 49 adding a new paragraph 13 to read as follows: 50 (13) TRANSPORTATION SERVICE, WHETHER OR NOT ANY TANGIBLE PERSONAL 51 PROPERTY IS TRANSFERRED IN CONJUNCTION THEREWITH, AND REGARDLESS OF 52 WHETHER THE CHARGE IS PAID IN THIS STATE OR OUT OF STATE SO LONG AS THE 53 SERVICE IS PROVIDED IN THIS STATE. S. 60--A 186 A. 160--A 1 S 3. Section 1106 of the tax law is amended by adding a new subdivi- 2 sion (1) to read as follows: 3 (1) THE TAX IMPOSED BY PARAGRAPH THIRTEEN OF SUBDIVISION (C) OF 4 SECTION ELEVEN HUNDRED FIVE OF THIS PART MUST BE PAID WITH RESPECT TO 5 RECEIPTS FROM ALL SALES OF SERVICES ON OR AFTER THE EFFECTIVE DATE OF 6 SUCH PARAGRAPH ALTHOUGH RENDERED OR AGREED TO BE RENDERED UNDER A PRIOR 7 CONTRACT. WHERE A SERVICE IS SOLD ON A MONTHLY, QUARTERLY, YEARLY, OR 8 OTHER TERM BASIS, THE CHARGE FOR THE SERVICE WILL BE SUBJECT TO THE TAX 9 IMPOSED BY THAT PARAGRAPH TO THE EXTENT THAT THE CHARGE IS APPLICABLE TO 10 ANY PERIOD ON OR AFTER THE DATE THE TAX BECOMES EFFECTIVE, AND THE 11 CHARGE MUST BE APPORTIONED ON THE BASIS OF THE RATIO OF THE NUMBER OF 12 DAYS FALLING WITHIN THE PERIOD TO THE TOTAL NUMBER OF DAYS IN THE FULL 13 TERM OR PERIOD. 14 S 4. Section 1111 of the tax law is amended by adding a new subdivi- 15 sion (o) to read as follows: 16 (O) (1) IF A TRANSPORTATION SERVICE SUBJECT TO TAX UNDER PARAGRAPH 17 THIRTEEN OF SUBDIVISION (C) OF SECTION ELEVEN HUNDRED FIVE OF THIS PART 18 IS PROVIDED BY TAXICAB, BLACK CAR, LIMOUSINE OR OTHER VEHICLE, AND THE 19 OWNER OR LESSOR OF THE VEHICLE LEASES OR RENTS THE VEHICLE TO AN UNRE- 20 LATED PERSON WHO PROVIDES THE TRANSPORTATION SERVICE, SUCH AS A TAXICAB 21 DRIVER WHO DRIVES A TAXICAB OWNED BY ANOTHER PERSON, THEN (I) THE OWNER 22 OR LESSOR IS DEEMED TO PROVIDE THE TRANSPORTATION SERVICE DURING THE DAY 23 OR OTHER PERIOD THAT THE UNRELATED PERSON USES THE VEHICLE TO PROVIDE 24 THE SERVICE, (II) THE OWNER OR LESSOR IS DEEMED TO BE THE VENDOR OF THE 25 SERVICE PROVIDED BY THE UNRELATED PERSON, (III) THE TAX IMPOSED BY SUCH 26 PARAGRAPH THIRTEEN IS DEEMED TO BE IMPOSED ON THE UNRELATED PERSON, 27 (IV) THE OWNER OR LESSOR, AS VENDOR, MUST COLLECT THE TAX FROM THE UNRE- 28 LATED PERSON, BASED ON THE LOCAL JURISDICTION WHERE THE DRIVER TAKES 29 DELIVERY OF THE VEHICLE AND PAY OVER SUCH TAX REQUIRED TO BE COLLECTED 30 WITH ITS RETURNS REQUIRED TO BE FILED UNDER THIS ARTICLE, AND (V) THE 31 RECEIPTS SUBJECT TO THE TAX EQUAL TWO HUNDRED PERCENT OF THE AMOUNT THAT 32 THE OWNER OR LESSOR CHARGES THE UNRELATED PERSON FOR THE USE OF THE 33 VEHICLE DURING THE DAY OR OTHER PERIOD, INCLUDING ANY CHARGE RELATED TO 34 INSURANCE, MAINTENANCE, REPAIRS, FUEL, THE USE, RENTAL OR ECONOMIC VALUE 35 OF ANY TAXICAB OR OTHER LICENSE OR MEDALLION, AND ANY OTHER CHARGE MADE 36 BY THE OWNER OR LESSOR TO THE UNRELATED PERSON FOR THE DAY OR OTHER 37 PERIOD, REGARDLESS OF WHETHER THE UNRELATED PERSON TRANSPORTED, CARRIED 38 OR CONVEYED ANY PERSON OR EARNED ANY FARES WITH THAT VEHICLE DURING THAT 39 DAY OR OTHER PERIOD. 40 (2) NOTWITHSTANDING ANY LAW TO THE CONTRARY: 41 (I) ANY MUNICIPALITY OR PUBLIC CORPORATION THAT ESTABLISHES OR REGU- 42 LATES TAXICAB, BLACK CAR, LIMOUSINE OR OTHER VEHICLE SERVICE FARES MUST 43 ADJUST THOSE FARES TO INCLUDE THEREIN THE TAX IMPOSED BY PARAGRAPH THIR- 44 TEEN OF SUBDIVISION (C) OF SECTION ELEVEN HUNDRED FIVE OF THIS PART AND 45 THE TAXES IMPOSED BY OTHER SECTIONS OF THIS PART AND PURSUANT TO THE 46 AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER ON THE SERVICES TAXED 47 BY SUCH PARAGRAPH THIRTEEN AND MUST REQUIRE THAT ANY METERS OR OTHER 48 DEVICES IN THE VEHICLES OR OTHERWISE THAT MEASURE FARES BE ADJUSTED TO 49 INCLUDE THESE TAXES, AS THE SAME ARE FROM TIME TO TIME IMPOSED AND AS 50 THE RATES OF THOSE TAXES MAY CHANGE. 51 (II) ANY PERSON THAT SELLS THE SERVICES DESCRIBED IN PARAGRAPH ONE OF 52 THIS SUBDIVISION MUST ADJUST ANY METERS OR OTHER DEVICES IN THE VEHICLES 53 OR OTHERWISE THAT MEASURE FARES SO THAT THEY TIMELY REFLECT ANY CHANGE 54 IN THE RATES OF THE TAXES DESCRIBED IN SUBPARAGRAPH (I) OF THIS PARA- 55 GRAPH. NEITHER THE FAILURE OF A MUNICIPAL OR OTHER PUBLIC CORPORATION TO 56 ADJUST FARES NOR THE FAILURE OF ANY PERSON TO ADJUST THE METERS OR S. 60--A 187 A. 160--A 1 DEVICES WILL RELIEVE ANY PERSON FROM THE OBLIGATION TO COLLECT SUCH 2 TAXES TIMELY, AT THE CORRECT COMBINED RATE. 3 (3) FOR PURPOSES OF THIS SUBDIVISION, "UNRELATED PERSON" MEANS A 4 PERSON OTHER THAN A RELATED PERSON AS DEFINED FOR PURPOSES OF SECTION 5 FOURTEEN OF THIS CHAPTER. 6 S 5. Subdivision (z) of section 1115 of the tax law is amended by 7 adding a new paragraph 5 to read as follows: 8 (5) THE EXEMPTIONS PROVIDED IN THIS SUBDIVISION SHALL NOT APPLY TO THE 9 TAX IMPOSED BY PARAGRAPH THIRTEEN OF SUBDIVISION (C) OF SECTION ELEVEN 10 HUNDRED FIVE OF THIS ARTICLE OR TO SIMILAR TAXES IMPOSED PURSUANT TO THE 11 AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER. 12 S 6. Section 1213 of the tax law, as amended by chapter 651 of the 13 laws of 1999, is amended to read as follows: 14 S 1213. Deliveries outside the jurisdiction where sale is made. Where 15 a sale of tangible personal property or services, including prepaid 16 telephone calling services, but not including other services described 17 in subdivision (b) of section eleven hundred five OF THIS CHAPTER, 18 including an agreement therefor, is made in any city, county or school 19 district, but the property sold, the property upon which the services 20 were performed or prepaid telephone calling or other service is or will 21 be delivered to the purchaser elsewhere, such sale shall not be subject 22 to tax by such city, county or school district. However, if delivery 23 occurs or will occur in a city, county or school district imposing a tax 24 on the sale or use of such property, prepaid telephone calling or other 25 services, the vendor shall be required to collect from the purchaser, as 26 provided in section twelve hundred fifty-four OF THIS ARTICLE, the 27 aggregate sales or compensating use taxes imposed by the city, if any, 28 county and school district in which delivery occurs or will occur, for 29 distribution by the commissioner to such taxing jurisdiction or juris- 30 dictions. For the purposes of this section delivery shall be deemed to 31 include transfer of possession to the purchaser and the receiving of the 32 property or of the service, including prepaid telephone calling service, 33 by the purchaser. NOTWITHSTANDING THE FOREGOING, WHERE A TRANSPORTATION 34 SERVICE DESCRIBED IN PARAGRAPH THIRTEEN OF SUBDIVISION (C) OF SECTION 35 ELEVEN HUNDRED FIVE OF THIS CHAPTER BEGINS IN ONE JURISDICTION BUT ENDS 36 IN ANOTHER JURISDICTION, ANY TAX IMPOSED BY THIS ARTICLE SHALL BE DUE 37 THE JURISDICTION OR JURISDICTIONS WHERE THE SERVICE COMMENCED. 38 S 7. This act shall take effect June 1, 2009. 39 PART OO 40 Section 1. Paragraph 2 of subdivision (d) of section 1101 of the tax 41 law, as added by chapter 93 of the laws of 1965, is amended to read as 42 follows: 43 (2) Admission charge. The amount paid for admission, including any 44 DUES (OTHER THAN DUES PAID TO A CLUB DESCRIBED IN PARAGRAPH THIRTEEN OF 45 THIS SUBDIVISION), MEMBERSHIP FEE, PARTICIPATION FEE, USAGE FEE, OR 46 service charge, and any charge for entertainment [or], amusement, or 47 SPORTS, AND ANY AMOUNT PAID for the use of ANY DEVICES, RIDES, GAMES, 48 EQUIPMENT, APPARATUS, OR ANY OTHER facilities therefor AT A PLACE OF 49 AMUSEMENT OTHER THAN LAWFULLY OPERATED VIDEO LOTTERY TERMINALS. 50 S 2. Paragraph 4 of subdivision (d) of section 1101 of the tax law, as 51 added by chapter 93 of the laws of 1965, is amended to read as follows: 52 (4) Charge of a roof garden, cabaret or other similar place. Any 53 charge made for admission, refreshment, service, or merchandise OR FOR S. 60--A 188 A. 160--A 1 THE USE OF ANY FACILITIES FOR ENTERTAINMENT OR AMUSEMENT at a roof 2 garden, cabaret or other similar place. 3 S 3. Paragraph 6 of subdivision (d) of section 1101 of the tax law, as 4 amended by chapter 470 of the laws of 1979, is amended to read as 5 follows: 6 (6) Dues. Any dues or membership fee including any assessment, irre- 7 spective of the purpose for which made, and any charges for social, 8 ATHLETIC or sports privileges or facilities[, except charges for sports 9 privileges or facilities offered to members' guests which would other- 10 wise be exempt if paid directly by such guests], AND FOR THE USE OF 11 OTHER FACILITIES FURNISHED OR LEASED BY A CLUB TO ITS MEMBERS OR GUESTS. 12 S 4. Paragraph 10 of subdivision (d) of section 1101 of the tax law, 13 as added by chapter 93 of the laws of 1965, is amended to read as 14 follows: 15 (10) Place of amusement. Any place where A PERFORMANCE IS GIVEN, A 16 MOTION PICTURE OR OTHER THEATER, FAIR, RACE TRACK, EXHIBITION, CIRCUS, 17 GOLF COURSE, ATHLETIC FIELD, SPORTING ARENA, CLUB (OTHER THAN A CLUB 18 DESCRIBED IN PARAGRAPH THIRTEEN OF THIS SUBDIVISION), GYMNASIUM, BOWLING 19 ALLEY, SHOOTING GALLERY, SWIMMING POOL, BEACH, SKATING RINK, SKIING 20 MOUNTAIN OR FACILITY, CAMPGROUND, PARK AND ANY OTHER PLACE WHERE any 21 EQUIPMENT, APPARATUS, EXHIBIT, DISPLAY, OR OTHER facilities for enter- 22 tainment, amusement, or sports are provided, INCLUDING AMUSEMENT DEVICES 23 OR RIDES AND GAMES OF CHANCE OR SKILL, WHETHER OR NOT CONTAINED IN AN 24 ENCLOSURE AND WHETHER OR NOT COIN-OPERATED. 25 S 5. Paragraph 12 of subdivision (d) of section 1101 of the tax law, 26 as amended by chapter 609 of the laws of 1986, is amended to read as 27 follows: 28 (12) Roof garden, cabaret or other similar place. Any roof garden, 29 cabaret or other similar place which furnishes a public performance for 30 profit, INCLUDING ANY HOTEL, RESTAURANT, HALL OR OTHER PUBLIC PLACE 31 WHERE MUSIC AND DANCING PRIVILEGES OR ANY OTHER ENTERTAINMENT, EXCEPT 32 INSTRUMENTAL OR MECHANICAL MUSIC ALONE, ARE AFFORDED TO PATRONS IN 33 CONJUNCTION WITH THE SERVING OR SELLING OF FOOD, REFRESHMENT OR MERCHAN- 34 DISE, but not including a place where merely live dramatic or musical 35 arts performances are offered in conjunction with the serving or selling 36 of food, refreshment or merchandise, so long as such serving or selling 37 of food, refreshment or merchandise is merely incidental to such 38 performances. A PERFORMANCE WILL BE REGARDED AS BEING FURNISHED FOR 39 PROFIT EVEN THOUGH THE CHARGE MADE FOR ADMISSION, REFRESHMENT, SERVICE 40 OR MERCHANDISE IS NOT INCREASED BY REASON OF THE FURNISHING OF THAT 41 PERFORMANCE. 42 S 6. Paragraph 13 of subdivision (d) of section 1101 of the tax law, 43 as added by chapter 93 of the laws of 1965, is amended to read as 44 follows: 45 (13) Social [or], athletic, OR SPORTING club. Any club or organization 46 of which a material purpose or activity is social [or], athletic OR 47 SPORTING, OR ANY COMBINATION OF THOSE PURPOSES OR ACTIVITIES. 48 S 7. The opening paragraph of paragraph (i) of subdivision (d) of 49 section 1105 of the tax law, as amended by chapter 405 of the laws of 50 1971, is amended to read as follows: 51 The receipts from every sale of beer, wine or other alcoholic beverag- 52 es or any other drink of any nature, or from every sale of food and 53 drink of any nature or of food alone, when sold in or by restaurants, 54 taverns or other establishments in this state, or by caterers, including 55 in the amount of such receipts any cover, minimum, entertainment, ADMIS- S. 60--A 189 A. 160--A 1 SION, or other charge made to patrons or customers (except those 2 receipts taxed pursuant to subdivision (f) of this section): 3 S 8. Paragraph 1 of subdivision (f) of section 1105 of the tax law, as 4 amended by section 100 of part A of chapter 389 of the laws of 1997, is 5 amended to read as follows: 6 (1) Any admission charge [where such admission charge is in excess of 7 ten cents] to or for the use of any place of amusement in the state[, 8 except charges for admission to race tracks, boxing, sparring or wrestl- 9 ing matches or exhibitions which charges are taxed under any other law 10 of this state, or dramatic or musical arts performances, or live circus 11 performances, or motion picture theaters, and except charges to a patron 12 for admission to, or use of, facilities for sporting activities in which 13 such patron is to be a participant, such as bowling alleys and swimming 14 pools] OR TO OR FOR THE USE OF ANY EQUIPMENT, APPARATUS, DEVICES, RIDES, 15 GAMES, OR OTHER FACILITIES AT THAT PLACE OF AMUSEMENT, OTHER THAN A 16 LAWFULLY OPERATED VIDEO LOTTERY TERMINAL, REGARDLESS OF WHETHER THE 17 CHARGE IS PAID IN THIS STATE OR OUT OF STATE SO LONG AS THE PLACE OF 18 AMUSEMENT IS IN THIS STATE. For any person having the permanent use or 19 possession of a box or seat or a lease or a license, other than a season 20 ticket, for the use of a box or seat at a place of amusement, the tax 21 shall be upon the amount for which a similar box or seat is sold for 22 each performance or exhibition at which the box or seat is used or 23 reserved by the holder, licensee or lessee, and shall be paid by the 24 holder, licensee or lessee. 25 S 9. Paragraph 2 of subdivision (f) of section 1105 of the tax law, as 26 amended by chapter 673 of the laws of 1995, is amended to read as 27 follows: 28 (2) (i) The dues paid to any social [or], athletic OR SPORTING club in 29 this state if the dues of an active annual member, exclusive of the 30 initiation fee, are in excess of ten dollars per year, and on the initi- 31 ation fee alone, regardless of the amount of dues, if such initiation 32 fee is in excess of ten dollars, REGARDLESS OF WHETHER THE DUES OR 33 INITIATION FEE IS PAID IN THIS STATE OR OUT OF THIS STATE SO LONG AS THE 34 CLUB IS IN THIS STATE. Where the tax on dues applies to any such social 35 [or], athletic OR SPORTING club, the tax shall be paid by all members, 36 other than honorary members, thereof regardless of the amount of their 37 dues, and shall be paid on all dues or initiation fees [for a period 38 commencing on or after August first, nineteen hundred sixty-five]. In 39 the case of a life membership, the tax shall be upon the amount paid as 40 life membership dues, however, a life member, other than an honorary 41 member, paying an annual sales tax, based on the dues of an active annu- 42 al member, shall continue such payments until the total amount of such 43 tax paid is equal to the amount of tax that would have otherwise been 44 due had the tax been imposed at the time such paid life membership has 45 been purchased and at the then applicable rate. 46 (ii) Dues and initiation fees paid to the following shall not be 47 subject to the tax imposed by this paragraph: 48 (A) A fraternal society, order or association operating under the 49 lodge system; OR 50 (B) Any fraternal association of students of a college or university[; 51 (C) A homeowners association. For purposes of this subparagraph, a 52 homeowners association is an association (including a cooperative hous- 53 ing or apartment corporation) (I) the membership of which is comprised 54 exclusively of owners or residents of residential dwelling units, 55 including owners of units in a condominium, and including shareholders 56 in a cooperative housing or apartment corporation, where such units are S. 60--A 190 A. 160--A 1 located in a defined geographical area such as a housing development or 2 subdivision and (II) which operates social or athletic facilities 3 located in such area for use (whether or not exclusive) by such owners 4 or residents]. 5 S 10. Paragraph 3 of subdivision (f) of section 1105 of the tax law, 6 as amended by chapter 72 of the laws of 1971, is amended to read as 7 follows: 8 (3) The amount paid as charges of a roof garden, cabaret or other 9 similar place in the state, REGARDLESS OF WHETHER PAID IN THIS STATE OR 10 OUT OF STATE SO LONG AS THE PLACE IS IN THIS STATE. 11 S 11. Section 1122 of the tax law is REPEALED. 12 S 12. Section 1123 of the tax law is REPEALED. 13 S 13. Paragraph 4 of subdivision (a) of section 1210 of the tax law, 14 as amended by section 5 of part SS-1 of chapter 57 of the laws of 2008, 15 is amended to read as follows: 16 (4) Notwithstanding any other provision of law to the contrary, any 17 local law enacted by any city of one million or more that imposes the 18 taxes authorized by this subdivision (i) may omit the exception provided 19 in subparagraph (ii) of paragraph three of subdivision (c) of section 20 eleven hundred five of this chapter for receipts from laundering, dry- 21 cleaning, tailoring, weaving, pressing, shoe repairing and shoe shining; 22 (ii) may impose the tax described in paragraph six of subdivision (c) of 23 section eleven hundred five of this chapter at a rate in addition to the 24 rate prescribed by this section not to exceed two percent in multiples 25 of one-half of one percent; (iii) shall provide that the tax described 26 in paragraph six of subdivision (c) of section eleven hundred five of 27 this chapter does not apply to facilities owned and operated by the city 28 or an agency or instrumentality of the city or a public corporation the 29 majority of whose members are appointed by the chief executive officer 30 of the city or the legislative body of the city or both of them; (iv) 31 shall not include any tax on receipts from, or the use of, the services 32 described in paragraph seven of subdivision (c) of section eleven 33 hundred five of this chapter; (v) shall provide that, for purposes of 34 the tax described in subdivision (e) of section eleven hundred five of 35 this chapter, "permanent resident" means any occupant of any room or 36 rooms in a hotel for at least one hundred eighty consecutive days with 37 regard to the period of such occupancy; [(vi) may omit the exception 38 provided in paragraph one of subdivision (f) of section eleven hundred 39 five of this chapter for charges to a patron for admission to, or use 40 of, facilities for sporting activities in which the patron is to be a 41 participant, such as bowling alleys and swimming pools;] (vii) shall not 42 provide the clothing and footwear exemption in paragraph thirty of 43 subdivision (a) of section eleven hundred fifteen of this chapter but 44 must exempt clothing and footwear and any item used or consumed to make 45 or repair exempt clothing and which becomes a physical component part of 46 that exempt clothing; (viii) shall omit the exemption provided in para- 47 graph forty-one of subdivision (a) of section eleven hundred fifteen of 48 this chapter; (ix) shall omit the exemption provided in subdivision (c) 49 of section eleven hundred fifteen of this chapter insofar as it applies 50 to fuel, gas, electricity, refrigeration and steam, and gas, electric, 51 refrigeration and steam service of whatever nature for use or consump- 52 tion directly and exclusively in the production of gas, electricity, 53 refrigeration or steam; and (x) shall omit, unless such city elects 54 otherwise, the provision for refund or credit contained in clause six of 55 subdivision (a) of section eleven hundred nineteen of this chapter. S. 60--A 191 A. 160--A 1 S 14. Paragraph 2 of subdivision (b) of section 1210 of the tax law, 2 as amended by section 36 of part Y of chapter 63 of the laws of 2000, is 3 amended to read as follows: 4 (2) In respect to the taxes described in such subdivisions (b), (d), 5 (e) and (f) of section eleven hundred five of this chapter and in such 6 clauses (E), (G) and (H) of subdivision (a) of section eleven hundred 7 ten of this chapter and the transitional provisions in such section 8 eleven hundred six covering those taxes, all provisions of a local law 9 imposing any such tax, except as to rate and except as otherwise 10 provided herein, shall be identical with the corresponding provisions in 11 such article twenty-eight of this chapter, including the definition and 12 exemption provisions of such article, so far as the provisions of such 13 article twenty-eight of this chapter can be made applicable to the taxes 14 imposed by such city or county and with such limitations and special 15 provisions as are set forth in this article; provided, however, that any 16 local law enacted by any city of one million or more, imposing the taxes 17 authorized by this subdivision, shall omit the exemption provided in 18 subdivision (c) of section eleven hundred fifteen of this chapter [and 19 may omit the exception provided in paragraph (1) of subdivision (f) of 20 section eleven hundred five of this chapter for charges to a patron for 21 admission to, or use of, facilities for sporting activities in which 22 such patron is to be a participant, such as bowling alleys and swimming 23 pools. The transitional provisions contained in subdivision (d) of 24 section eleven hundred six of this chapter shall apply in the same 25 manner and to the same extent to a tax imposed by omitting the exception 26 in paragraph (1) of subdivision (f) of section eleven hundred five of 27 this chapter, as described in the preceding sentence, except that an 28 equivalent date shall be substituted to accord with the date when the 29 tax so imposed becomes effective]. The tax described in any one of such 30 subdivisions (b), (d), (e) and (f) of section eleven hundred five of 31 this chapter, including the related transitional provisions in [such] 32 section eleven hundred six of this chapter, and the taxes described in 33 clauses (E), (G) and (H) of subdivision (a) of section eleven hundred 34 ten of this chapter where the tax described in such subdivision (b) of 35 section eleven hundred five of this chapter is imposed, may not be 36 imposed by a city or county unless the local law, ordinance or resol- 37 ution imposes such tax so as to include all portions and all types of 38 receipts, charges or rents, as the case may be, subject to state tax 39 under the applicable subdivision of section eleven hundred five of this 40 chapter and uses subject to tax under the applicable provisions of 41 section eleven hundred ten of this chapter where the tax described in 42 subdivision (b) of section eleven hundred five of this chapter is 43 imposed. 44 S 15. Subdivision (h) of section 1210 of the tax law, as added by 45 chapter 168 of the laws of 1975, is amended to read as follows: 46 (h) Notwithstanding the provisions of subdivision (f) of this section, 47 any city having a population of one million or more in which a municipal 48 assistance corporation is created under article ten of the public 49 authorities law shall continue to be authorized and empowered to adopt 50 and amend local laws, imposing taxes, at a rate not to exceed four 51 percent on the receipts of sales from the services of laundering, dry- 52 cleaning, tailoring, weaving, pressing, shoe repairing and shoe shin- 53 ing[, and charges to a patron for admission to, or use of, facilities 54 for sporting activities in which such patron is to be a participant such 55 as bowling alleys and swimming pools]. Such taxes shall be administered, S. 60--A 192 A. 160--A 1 collected and distributed by the [state tax commission] COMMISSIONER as 2 provided in subpart B of part III and in part IV of this article. 3 S 16. This act shall take effect June 1, 2009, and shall apply in 4 accordance with applicable transitional provisions in sections 1106 and 5 1217 of the tax law. 6 PART PP 7 Section 1. Paragraph 9 of subdivision (b) of section 1101 of the tax 8 law, as amended by chapter 61 of the laws of 1989, is amended to read as 9 follows: 10 (9) Capital improvement. (i) An addition or alteration to real proper- 11 ty which: 12 (A) Substantially adds to the value of the real property, or appre- 13 ciably prolongs [the] ITS useful life [of the real property]; and 14 (B) Becomes part of the real property or is permanently affixed to 15 [the real property] IT so that removal would cause material damage to 16 [the property] IT or TO THE article itself; and 17 (C) Is intended to become a permanent installation; AND 18 (D) IN THE CASE OF A BUILDING OR OTHER STRUCTURE, CONSTITUTES NEW 19 CONSTRUCTION OR A NEW ADDITION TO OR TOTAL RECONSTRUCTION OF EXISTING 20 CONSTRUCTION. 21 (ii) A mobile home shall not constitute [an addition or] A capital 22 improvement [to real property, property or land], regardless of the 23 nature of its installation. 24 (iii) Notwithstanding the provisions of subparagraph (i) of this para- 25 graph: (A) Floor covering, such as carpet, carpet padding, linoleum and 26 vinyl roll flooring, carpet tile, linoleum tile and vinyl tile, 27 installed as the initial finished floor covering in new construction or 28 a new addition to or total reconstruction of existing construction shall 29 constitute [an addition or] A capital improvement [to real property, 30 property or land]; and 31 (B) Floor covering, such as carpet, carpet padding, linoleum and vinyl 32 roll flooring, carpet tile, linoleum tile and vinyl tile, installed 33 other than as described in clause (A) of this subparagraph shall not 34 constitute [an addition or] A capital improvement [to real property, 35 property or land]. 36 S 2. Subparagraph (iii) of paragraph 3 of subdivision (c) of section 37 1105 of the tax law, as separately amended by chapters 103 and 471 of 38 the laws of 1981, is amended to read as follows: 39 (iii) for installing property which, when installed, will constitute 40 [an addition or] A capital improvement [to real property, property or 41 land, as the terms real property, property or land are defined in the 42 real property tax law as such term capital improvement is defined in 43 paragraph nine of subdivision (b) of section eleven hundred one of this 44 chapter]; and 45 S 3. Paragraph 5 of subdivision (c) of section 1105 of the tax law, as 46 amended by chapter 321 of the laws of 2005, is amended to read as 47 follows: 48 (5) Maintaining, servicing or repairing real property[, property or 49 land, as such terms are defined in the real property tax law], whether 50 the services are performed in or outside of a building, as distinguished 51 from adding to or improving such real property[, property or land,] by a 52 capital improvement [as such term capital improvement is defined in 53 paragraph nine of subdivision (b) of section eleven hundred one of this 54 article], but excluding (i) services rendered by an individual who is S. 60--A 193 A. 160--A 1 not in a regular trade or business offering his services to the public, 2 (ii) services rendered directly with respect to real property[, property 3 or land] used or consumed directly and predominantly in the production 4 for sale of gas or oil by manufacturing, processing, generating, assem- 5 bling, refining, mining, or extracting, (iii) services rendered with 6 respect to real property[, property or land] used or consumed predomi- 7 nantly either in the production of tangible personal property, for sale, 8 by farming or in a commercial horse boarding operation, or in both and 9 (iv) services of removal of waste material from a facility regulated as 10 a transfer station or construction and demolition debris processing 11 facility by the department of environmental conservation, provided that 12 the waste material to be removed was not generated by the facility. 13 S 4. Subdivision (e) of section 1110 of the tax law, as separately 14 amended by sections 19, 158 and 161 of chapter 166 of the laws of 1991, 15 is amended to read as follows: 16 (e) Notwithstanding the foregoing[,] provisions of this section, for 17 purposes of clause (B) of subdivision (a) of this section, there shall 18 be no tax on any portion of such price which represents the value added 19 by the user to tangible personal property which he fabricates and 20 installs to the specifications of [an addition or] A capital improvement 21 [to real property, property or land, as the terms real property, proper- 22 ty or land are defined in the real property tax law], over and above the 23 prevailing normal purchase price prior to such fabrication of such 24 tangible personal property which a manufacturer, producer or assembler 25 would charge an unrelated contractor who similarly fabricated and 26 installed such tangible personal property to the specifications of [an 27 addition or] A capital improvement [to such real property, property or 28 land]. 29 S 5. Paragraph 17 of subdivision (a) of section 1115 of the tax law, 30 as amended by chapter 221 of the laws of 1971, is amended to read as 31 follows: 32 (17) Tangible personal property sold by a contractor, subcontractor or 33 [repairman] REPAIRPERSON to a person other than an organization 34 described in subdivision (a) of section eleven hundred sixteen OF THIS 35 PART, for whom [he] THE CONTRACTOR, SUBCONTRACTOR OR REPAIRPERSON is 36 [adding to, or improving real property, property or land by] PERFORMING 37 OR IS ABOUT TO PERFORM a capital improvement, [or for whom he is about 38 to do any of the foregoing,] if such tangible personal property is to 39 become an integral component part of [such structure, building or] THE 40 real property [; provided, however, that if such sale is made pursuant 41 to a contract irrevocably entered into before September first, nineteen 42 hundred sixty-nine, no exemption shall exist under this paragraph] UPON 43 WHICH THE CAPITAL IMPROVEMENT IS OR WILL BE PERFORMED. 44 S 6. Subparagraph (iii) of paragraph 37 of subdivision (a) of section 45 1115 of the tax law, as added by section 1 of part C of chapter 63 of 46 the laws of 2000, is amended to read as follows: 47 (iii) Receipts from the retail sale of the tangible personal property 48 exempt pursuant to subparagraph (i) of this paragraph if purchased by an 49 operator of an internet data center, shall be exempt when purchased by a 50 contractor, subcontractor or [repairman] REPAIRPERSON for use as 51 described in such subparagraph (i), where such property is to become [a] 52 AN INTEGRAL COMPONENT PART OF REAL PROPERTY DESCRIBED IN SUCH SUBPARA- 53 GRAPH (I) OF THIS PARAGRAPH UPON WHICH THE capital improvement [to real 54 property] IS TO BE PERFORMED. S. 60--A 194 A. 160--A 1 S 7. Subparagraph (iii) of paragraph 1 of subdivision (aa) of section 2 1115 of the tax law, as added by section 2 of part T of chapter 63 of 3 the laws of 2000, is amended to read as follows: 4 (iii) The services described in paragraph five of subdivision (c) of 5 section eleven hundred five of this article when performed on property 6 described in paragraph thirty-eight of subdivision (a) of this section 7 which subsequent to its installation has become [an addition or] A capi- 8 tal improvement [to real property, property or land, as such terms are 9 defined in the real property tax law]. 10 S 8. This act shall take effect June 1, 2009, and shall apply in 11 accordance with applicable transitional provisions in sections 1106 and 12 1217 of the tax law. 13 PART QQ 14 Section 1. Paragraph b of subdivision 1 of section 502 of the tax 15 law, as amended by section 1 of part E of chapter 60 of the laws of 16 2007, is amended to read as follows: 17 b. Every automotive fuel carrier shall apply to the commissioner for a 18 special certificate of registration, in place of the certificate of 19 registration described in paragraph a of this subdivision, for each 20 motor vehicle operated or to be operated by him on the public highways 21 in this state to transport automotive fuel. Provided, however, a special 22 certificate of registration shall not be required under this paragraph 23 for a tractor or other self-propelled device which, except with respect 24 to the fuel in the ordinary fuel tank intended for its propulsion, 25 transports automotive fuel solely by means of a trailer, dolly or other 26 device drawn by such tractor or other self-propelled device if a certif- 27 icate of registration prescribed by paragraph a of this subdivision has 28 been issued for the self-propelled device. Application shall be made 29 upon an application form prescribed by the commissioner. The applica- 30 tion shall be accompanied by a fee of [five] FIFTEEN dollars for each 31 trailer, semi-trailer, dolly or other device [and fifteen dollars for 32 each self-propelled device] listed in the application. The commissioner 33 shall issue without further charge such special certificate of registra- 34 tion for each motor vehicle listed in the application or a consolidated 35 certificate of registration for all or any portion of such vehicles of 36 such carrier. All of the provisions of this article with respect to 37 certificates of registration shall be applicable to the special certif- 38 icates of registration issued to automotive fuel carriers under this 39 paragraph as if those provisions had been set forth in full in this 40 paragraph and expressly referred to the special certificates of regis- 41 tration required by this paragraph except to the extent that any such 42 provision is either inconsistent with a provision of this paragraph or 43 not relevant to the certificates of registration required by this para- 44 graph. Any certificate of registration shall not be transferable, and 45 shall be valid until revoked, suspended or surrendered. Such special 46 certificate of registration shall be maintained in the carrier's regular 47 place of business. Nothing contained in this paragraph shall in any way 48 exempt an automotive fuel carrier from payment of the taxes imposed 49 pursuant to this article. 50 S 2. Subdivision 8 of section 509 of the tax law, as amended by 51 section 5 of part E of chapter 60 of the laws of 2007, is amended to 52 read as follows: 53 8. To issue replacement certificates of registration at such times as 54 the commissioner may deem necessary for the proper and efficient S. 60--A 195 A. 160--A 1 enforcement of the provisions of this article, but not more often than 2 once every year and to require the surrender of the then outstanding 3 certificates of registration. All of the provisions of this article with 4 respect to certificates of registration shall be applicable to replace- 5 ment certificates of registration issued hereunder, except that the 6 replacement certificate of registration shall be issued upon payment of 7 a fee of [four] FIFTEEN dollars for each motor vehicle and [two dollars] 8 for any trailer, semi-trailer, dolly or other device drawn thereby for 9 which a certificate of registration is required to be issued under this 10 article; 11 S 3. This act shall take effect immediately. 12 PART RR 13 Section 1. The tax law is amended by adding a new section 1105-F to 14 read as follows: 15 S 1105-F. ADDITIONAL STATE SALES AND COMPENSATING USE TAX ON CERTAIN 16 LUXURY PROPERTY. (A) DEFINITIONS. FOR PURPOSES OF THE TAX IMPOSED BY 17 THIS SECTION, THE FOLLOWING TERMS MEAN: 18 (1) PASSENGER MOTOR VEHICLE. A MOTOR VEHICLE AS DEFINED IN SECTION ONE 19 HUNDRED TWENTY-FIVE OF THE VEHICLE AND TRAFFIC LAW, WITH A GROSS VEHICLE 20 WEIGHT OF TEN THOUSAND POUNDS OR LESS, BUT NOT INCLUDING A VEHICLE 21 PURCHASED FOR USE EXCLUSIVELY IN THE ACTIVE CONDUCT OF A TRADE OR BUSI- 22 NESS OF TRANSPORTING PERSONS OR PROPERTY FOR COMPENSATION OR HIRE, A 23 VEHICLE PURCHASED FOR USE EXCLUSIVELY IN PROVIDING EMERGENCY MEDICAL 24 SERVICES, OR A DEMONSTRATOR VEHICLE. 25 (2) VESSEL. A VESSEL, AS DEFINED IN SECTION TWENTY-TWO HUNDRED FIFTY 26 OF THE VEHICLE AND TRAFFIC LAW, BUT NOT INCLUDING A COMMERCIAL VESSEL, 27 AS DEFINED IN PARAGRAPH SIXTEEN OF SUBDIVISION (B) OF SECTION ELEVEN 28 HUNDRED ONE OF THIS ARTICLE, A VESSEL PURCHASED FOR USE EXCLUSIVELY IN 29 PROVIDING EMERGENCY MEDICAL SERVICES, OR A DEMONSTRATOR VESSEL. 30 (3) AIRCRAFT. ANY AIRCRAFT THAT IS PROPELLED BY A MOTOR OR ENGINE AND 31 IS CAPABLE OF CARRYING ONE OR MORE INDIVIDUALS, BUT NOT INCLUDING 32 COMMERCIAL AIRCRAFT AS DEFINED IN PARAGRAPH SEVENTEEN OF SUBDIVISION (B) 33 OF SECTION ELEVEN HUNDRED ONE OF THIS ARTICLE, AN AIRCRAFT PURCHASED FOR 34 USE EXCLUSIVELY IN PROVIDING EMERGENCY MEDICAL SERVICES, OR A DEMONSTRA- 35 TOR AIRCRAFT. 36 (4) JEWELRY. ALL ARTICLES COMMONLY OR COMMERCIALLY KNOWN AS JEWELRY, 37 WHETHER REAL OR IMITATION, INCLUDING BUT NOT LIMITED TO RINGS, EARRINGS, 38 NECKLACES, BRACELETS AND WATCHES, AND ALSO INCLUDING LOOSE PEARLS AND 39 PRECIOUS AND SEMI-PRECIOUS STONES. 40 (5) FUR CLOTHING AND FOOTWEAR. CLOTHING AND FOOTWEAR MADE, IN WHOLE OR 41 IN PART, OF ANY ANIMAL SKIN OR PART THEREOF WITH HAIR, FLEECE, OR FUR 42 FIBERS ATTACHED THERETO, IN EITHER ITS RAW OR PROCESSED STATE, BUT NOT 43 INCLUDING SKINS THAT ARE CONVERTED INTO LEATHER OR THAT IN PROCESSING 44 HAVE HAD THE HAIR, FLEECE, OR FUR FIBER COMPLETELY REMOVED. 45 (B) IMPOSITION OF ADDITIONAL TAXES. NOTWITHSTANDING ANY OTHER LAW TO 46 THE CONTRARY, IN ADDITION TO THE SALES AND COMPENSATING USE TAXES 47 IMPOSED BY SUBDIVISION (A) OF SECTION ELEVEN HUNDRED FIVE AND SUBDIVI- 48 SION (A) OF SECTION ELEVEN HUNDRED TEN OF THIS PART, THERE ARE HEREBY 49 IMPOSED AND THERE SHALL BE PAID ADDITIONAL SALES AND COMPENSATING USE 50 TAXES, AT THE RATE OF FIVE PERCENT, ON THE RETAIL SALE OR USE WITHIN THE 51 STATE OF THE FOLLOWING: 52 (1) A PASSENGER MOTOR VEHICLE TO THE EXTENT THAT THE SALE PRICE 53 EXCEEDS SIXTY THOUSAND DOLLARS; S. 60--A 196 A. 160--A 1 (2) A VESSEL TO THE EXTENT THAT THE SALE PRICE EXCEEDS TWO HUNDRED 2 THOUSAND DOLLARS; 3 (3) AN AIRCRAFT TO THE EXTENT THAT THE SALE PRICE EXCEEDS FIVE HUNDRED 4 THOUSAND DOLLARS; 5 (4) JEWELRY OR FUR CLOTHING AND FOOTWEAR TO THE EXTENT THAT THE SALE 6 PRICE PER ITEM OF JEWELRY OR FUR CLOTHING AND FOOTWEAR EXCEEDS TWENTY 7 THOUSAND DOLLARS. AN ITEM THAT IS ORDINARILY SOLD AS A PAIR, SUCH AS 8 EARRINGS OR GLOVES, ARE CONSIDERED TO BE ONE ITEM FOR PURPOSES OF THIS 9 SECTION. 10 (C) SPECIAL RULES FOR COMPUTING RECEIPTS AND CONSIDERATION. NOTWITH- 11 STANDING ANY CONTRARY PROVISION OF THIS ARTICLE OR OTHER LAW, FOR 12 PURPOSES OF THIS SECTION: 13 (1) SALE PRICE HAS THE SAME DEFINITION AS RECEIPT, BUT WITHOUT ANY 14 DEDUCTION FOR TANGIBLE PERSONAL PROPERTY ACCEPTED IN PART PAYMENT AND 15 INTENDED FOR RESALE. SALE PRICE ALSO INCLUDES THE PRICE OF ANY PROPERTY 16 INSTALLED ON A PASSENGER MOTOR VEHICLE, VESSEL, OR AIRCRAFT BY THE 17 VENDOR OF THAT VEHICLE, VESSEL OR AIRCRAFT WITHIN SIX MONTHS OF THE SALE 18 OF THE VEHICLE, VESSEL OR AIRCRAFT, PLUS ANY CHARGE FOR INSTALLING THAT 19 PROPERTY, BUT DOES NOT INCLUDE THE SALE PRICE OF ANY PROPERTY INSTALLED 20 ON A PASSENGER MOTOR VEHICLE TO MAKE IT ADAPTABLE FOR USE BY A PERSON 21 WITH A DISABILITY, OR THE REPLACEMENT OF DAMAGED, DEFECTIVE, OR MALFUNC- 22 TIONING PROPERTY, OR ANY CHARGE FOR INSTALLING THAT PROPERTY. 23 (2) WITH RESPECT TO ANY LEASE OF A PASSENGER MOTOR VEHICLE, VESSEL, OR 24 AIRCRAFT FOR A TERM OF ONE YEAR OR MORE, SALE PRICE MEANS THE MANUFAC- 25 TURER'S SUGGESTED RETAIL PRICE FOR THAT VEHICLE, VESSEL, OR AIRCRAFT, 26 WITHOUT ANY DEDUCTION FOR TANGIBLE PERSONAL PROPERTY ACCEPTED IN PART 27 PAYMENT AND INTENDED FOR RESALE. THE TAX DUE UNDER THIS SECTION MUST BE 28 COLLECTED AT THE TIME THE FIRST PAYMENT IS MADE UNDER THE LEASE, OPTION 29 TO RENEW, OR SIMILAR PROVISION OR COMBINATION OF THEM, OR AS OF THE DATE 30 OF REGISTRATION WITH THE COMMISSIONER OF MOTOR VEHICLES, WHICHEVER IS 31 EARLIER. 32 (D) INCORPORATION OF OTHER PROVISIONS OF THIS ARTICLE. EXCEPT AS 33 OTHERWISE PROVIDED IN THIS SECTION, THE TAXES IMPOSED BY THIS SECTION 34 WILL BE IDENTICAL TO, AND ADMINISTERED AND COLLECTED IN A LIKE MANNER 35 AS, THE TAXES IMPOSED BY SECTIONS ELEVEN HUNDRED FIVE AND ELEVEN HUNDRED 36 TEN OF THIS PART. ALL THE PROVISIONS OF THIS ARTICLE, INCLUDING THE 37 DEFINITION AND EXEMPTION PROVISIONS AND THE PROVISIONS RELATING OR 38 APPLICABLE TO THE ADMINISTRATION, COLLECTION, AND DISPOSITION OF THE 39 TAXES IMPOSED BY THOSE SECTIONS WILL APPLY TO THE TAX IMPOSED BY THIS 40 SECTION SO FAR AS THOSE PROVISIONS CAN BE MADE APPLICABLE TO THE TAX 41 IMPOSED BY THIS SECTION, WITH SUCH MODIFICATIONS AS MAY BE NECESSARY IN 42 ORDER TO ADAPT THE LANGUAGE OF THOSE PROVISIONS TO THE TAX IMPOSED BY 43 THIS SECTION. THOSE PROVISIONS WILL APPLY WITH THE SAME FORCE AND EFFECT 44 AS IF THE LANGUAGE OF THOSE PROVISIONS HAD BEEN SET FORTH IN FULL IN 45 THIS SECTION, EXCEPT TO THE EXTENT THAT ANY OF THOSE PROVISIONS ARE 46 EITHER INCONSISTENT WITH A PROVISION OF THIS SECTION OR ARE NOT RELEVANT 47 TO THE TAX IMPOSED BY THIS SECTION. FOR PURPOSES OF THIS SECTION, ANY 48 REFERENCE TO RECEIPT OR CONSIDERATION WILL BE READ AS SALE PRICE AS 49 DEFINED BY THIS SECTION AND ANY REFERENCE IN THIS CHAPTER TO A TAX OR 50 THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED FIVE OR ELEVEN HUNDRED TEN 51 OF THIS PART WILL BE DEEMED ALSO TO REFER TO THE TAX IMPOSED BY THIS 52 SECTION UNLESS A DIFFERENT MEANING IS CLEARLY REQUIRED. NOTWITHSTANDING 53 THE FOREGOING, THE EXEMPTION PROVIDED BY SUBDIVISION (Z) OF SECTION 54 ELEVEN HUNDRED FIFTEEN OF THIS ARTICLE SHALL NOT APPLY TO THE TAX 55 IMPOSED BY THIS SECTION. S. 60--A 197 A. 160--A 1 (E) SEPARATE STATEMENT OF TAX. EVERY PERSON REQUIRED TO COLLECT THE 2 TAX IMPOSED BY THIS SECTION SHALL STATE, CHARGE, AND SHOW THAT TAX SEPA- 3 RATELY FROM THE PRICE OR CHARGE, AND ALSO SEPARATELY FROM ANY OTHER TAX 4 IMPOSED BY THIS ARTICLE OR OTHER LAW ON ANY SALES SLIP, INVOICE, 5 RECEIPT, OR OTHER STATEMENT OR MEMORANDUM OF THE PRICE OR CHARGE, PAID 6 OR PAYABLE, GIVEN TO THE CUSTOMER. 7 (F) VENDOR COLLECTION CREDIT NOT TO INCLUDE TAX IMPOSED BY THIS 8 SECTION. THE TAXES IMPOSED BY, AND COLLECTED OR PAID OVER UNDER, THIS 9 SECTION SHALL NOT BE INCLUDED OR CONSIDERED IN COMPUTING THE CREDIT 10 ALLOWED BY SUBDIVISION (F) OF SECTION ELEVEN HUNDRED THIRTY-SEVEN OF 11 THIS ARTICLE. 12 (G) TAXES TO BE IN ADDITION TO ANY OTHER. THE TAXES IMPOSED BY THIS 13 SECTION SHALL BE IN ADDITION TO ANY OTHER TAX IMPOSED OR AUTHORIZED TO 14 BE IMPOSED BY THIS CHAPTER OR OTHER LAW. 15 (H) TAXES NOT TO APPLY TO OTHER IMPOSITIONS. THE TAXES IMPOSED BY THIS 16 SECTION SHALL NOT APPLY TO THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED 17 SEVEN, ELEVEN HUNDRED EIGHT, OR ELEVEN HUNDRED NINE OF THIS PART OR TO 18 TAXES AUTHORIZED TO BE IMPOSED BY ARTICLE TWENTY-NINE OF THIS CHAPTER. 19 S 2. This act shall take effect June 1, 2009, and shall apply to sales 20 made or uses occurring on or after such date in accordance with applica- 21 ble transitional provisions in section 1106 of the tax law. 22 PART SS 23 Section 1. This act enacts into law major components of legislation 24 which are necessary to implement the state fiscal plan for the 2009-2010 25 state fiscal year. Each component is wholly contained within a Subpart 26 identified as Subparts A through P. The effective date for each partic- 27 ular provision contained within such Subpart is set forth in the last 28 section of such Subpart. Any provision in any section contained within a 29 Subpart, including the effective date of the Subpart, which makes a 30 reference to a section "of this act", when used in connection with that 31 particular component, shall be deemed to mean and refer to the corre- 32 sponding section of the Subpart in which it is found. Section three of 33 this Part sets forth the general effective date of this Part. 34 SUBPART A 35 Section 1. The tax law is amended by adding a new section 1703 to read 36 as follows: 37 S 1703. INFORMATION RETURN RELATING TO DEPOSITS AND BANK SETTLEMENTS. 38 1. DEFINITIONS. FOR PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL 39 HAVE THE FOLLOWING MEANINGS: 40 (A) "ACCOUNT" MEANS ANY ACCOUNT WITH A BANK AND INCLUDES, WITHOUT 41 LIMITATION, A CHECKING, TIME, INTEREST, SAVINGS, OR BROKERAGE ACCOUNT. 42 (B) "BANK" MEANS A FINANCIAL INSTITUTION AS DEFINED IN PARAGRAPH (C) 43 OF SUBDIVISION ONE OF SECTION SEVENTEEN HUNDRED ONE OF THIS ARTICLE. 44 (C) "CASH" MEANS CURRENCY AUTHORIZED OR ADOPTED AS A MEDIUM OF 45 EXCHANGE BY A DOMESTIC OR FOREIGN GOVERNMENT. 46 (D) "CHECK" MEANS A NEGOTIABLE INSTRUMENT DRAWN ON A BANK AND PAYABLE 47 ON DEMAND. 48 (E) "REPORTABLE SETTLEMENT" MEANS A FINAL PAYMENT DEPOSITED INTO AN 49 ACCOUNT HOLDER'S ACCOUNT, BY ANY BANK, ASSOCIATION OF BANKS, OR OTHER 50 PAYORS REGULARLY CLEARING ITEMS, AS PAYMENT FOR TRANSACTIONS IN WHICH 51 THE ACCOUNT HOLDER ACCEPTED SOMETHING OTHER THAN A CHECK OR CASH AS 52 PAYMENT FOR GOODS SOLD OR SERVICES PROVIDED. S. 60--A 198 A. 160--A 1 2. THE DEPARTMENT SHALL SUPPLY EACH BANK WITH A LIST OF ALL REGIS- 2 TERED SALES TAX VENDORS BY DECEMBER THIRTY-FIRST OF EACH YEAR. EACH BANK 3 SHALL MAKE AN INFORMATION RETURN FOR EACH CALENDAR YEAR SETTING FORTH: 4 (A) THE NAME, ADDRESS, AND TAXPAYER IDENTIFICATION NUMBER OF EACH 5 ACCOUNT HOLDER WHICH IS A REGISTERED SALES TAX VENDOR BASED ON THE LIST 6 SUPPLIED BY THE DEPARTMENT FOR THAT CALENDAR YEAR; (B) THE GROSS AMOUNT 7 OF THAT ACCOUNT HOLDER'S REPORTABLE SETTLEMENTS DURING THE CALENDAR 8 YEAR; AND (C) THE GROSS AMOUNTS, DESIGNATED AS SUCH, OF EACH OF THE 9 FOLLOWING: CASH, CHECKS AND OTHER FUNDS DEPOSITED INTO THAT ACCOUNT 10 HOLDER'S ACCOUNT DURING THE CALENDAR YEAR. THAT INFORMATION RETURN SHALL 11 BE FILED ELECTRONICALLY WITH THE DEPARTMENT ON OR BEFORE JANUARY THIR- 12 TY-FIRST OF THE FOLLOWING YEAR. 13 3. (A) ANY BANK FAILING TO FILE AN INFORMATION RETURN REQUIRED BY 14 SUBDIVISION TWO OF THIS SECTION WITHIN THE TIME PRESCRIBED OR FAILING TO 15 INCLUDE CORRECT INFORMATION IN THAT RETURN SHALL, IN ADDITION TO ANY 16 OTHER PENALTY PROVIDED IN THIS CHAPTER OR OTHERWISE IMPOSED BY LAW, BE 17 SUBJECT TO A PENALTY OF FIFTY DOLLARS FOR EACH FAILURE, BUT THE TOTAL 18 AMOUNT IMPOSED ON ANY SUCH BANK FOR SUCH FAILURES DURING ANY CALENDAR 19 YEAR SHALL NOT EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS. 20 (B) THE COMMISSIONER MAY WAIVE ALL OR ANY PORTION OF ANY PENALTY 21 IMPOSED BY THIS SUBDIVISION WITH RESPECT TO ANY VIOLATION IF: (I) THE 22 COMMISSIONER DETERMINES THAT FAILURE TO PROVIDE INFORMATION OR TO 23 INCLUDE TRUE AND CORRECT INFORMATION IN A RETURN REQUIRED TO BE FILED, 24 OR TO TIMELY FILE A RETURN, WAS DUE TO REASONABLE CAUSE AND NOT DUE TO 25 WILLFUL NEGLECT; OR (II) RESCINDING THE PENALTY WOULD PROMOTE COMPLIANCE 26 WITH THE REQUIREMENTS OF THIS CHAPTER AND EFFECTIVE TAX ADMINISTRATION. 27 S 2. This act shall take effect immediately; provided however that 28 information returns required to be filed by January 31, 2010 shall 29 include information regarding reportable settlements and deposits that 30 were made on and after January 1, 2009. 31 SUBPART B 32 Section 1. Section 1142 of the tax law is amended by adding a new 33 subdivision 6-a to read as follows: 34 6-A. (A) TO USE GENERALLY ACCEPTED STATISTICAL SAMPLING TECHNIQUES TO 35 DETERMINE THE AMOUNT OF TAX DUE UNDER THIS ARTICLE. ANY SUCH DETERMI- 36 NATION WILL NOT BE DEEMED TO BE AN ESTIMATE BASED ON AN EXTERNAL INDEX 37 AND WILL NOT BE PRECLUDED BY ANY PROVISION OF SECTION ELEVEN HUNDRED 38 THIRTY-EIGHT OF THIS PART OR ANY OTHER LAW. THE COMMISSIONER IS NOT 39 AUTHORIZED UNDER THIS SUBDIVISION TO USE THESE SAMPLING TECHNIQUES TO 40 DETERMINE TAX DUE IN THE CASE OF A PERSON WHOSE "GROSS RECEIPTS OR 41 SALES", AS THAT TERM IS USED FOR FEDERAL INCOME TAX REPORTING PURPOSES, 42 ARE LESS THAN ONE MILLION DOLLARS IN EACH OF THE THREE TAXABLE YEARS FOR 43 FEDERAL INCOME TAX PURPOSES IMMEDIATELY PRECEDING THE CALENDAR YEAR IN 44 WHICH THE AUDIT IS COMMENCED, OR, IF THAT INFORMATION IS NOT AVAILABLE 45 FOR THOSE YEARS, IN THE THREE MOST RECENT OF THOSE YEARS (OR A LESSER 46 NUMBER OF YEARS IF ONLY THE LESSER NUMBER OF YEARS IS AVAILABLE) FOR 47 WHICH THAT INFORMATION IS AVAILABLE, UNLESS THE PERSON CONSENTS IN WRIT- 48 ING THAT THE COMMISSIONER MAY USE THESE TECHNIQUES TO DETERMINE TAX. 49 (B) THE TECHNIQUES TO DETERMINE TAX AUTHORIZED BY THIS SUBDIVISION 50 WILL BE IN ADDITION TO OTHER METHODS AUTHORIZED BY LAW, AND NOTHING IN 51 THIS SUBDIVISION MAY BE CONSTRUED TO LIMIT THE USE OF THOSE OTHER METH- 52 ODS. NOR MAY ANYTHING IN THIS SUBDIVISION OR OTHER PROVISION OF LAW BE 53 CONSTRUED TO LIMIT THE COMMISSIONER'S AUTHORITY AND POWER TO USE GENER- 54 ALLY ACCEPTED STATISTICAL SAMPLING TECHNIQUES TO EXAMINE RECORDS S. 60--A 199 A. 160--A 1 REQUIRED TO BE KEPT BY THIS ARTICLE AND RETURNS AND REPORTS REQUIRED TO 2 BE FILED OR SUBMITTED BY THIS ARTICLE. NO SUCH EXAMINATION BY STATIS- 3 TICAL SAMPLING TECHNIQUES OR THE RESULTS THEREOF WILL BE DEEMED TO BE AN 4 ESTIMATE BASED ON AN EXTERNAL INDEX OR PRECLUDED BY ANY PROVISION OF 5 SECTION ELEVEN HUNDRED THIRTY-EIGHT OF THIS PART OR OTHER LAW. 6 S 2. This act shall take effect immediately; provided, however, that 7 the provisions of this act shall, with respect to the determination of 8 tax due under article 28 of the tax law or under or pursuant to the 9 authority of other provisions of the tax law which incorporate or make 10 reference to such article 28, apply to any tax due that has not been 11 assessed on the date this act becomes a law. 12 SUBPART C 13 Section 1. Section 1135 of the tax law is amended by adding a new 14 subdivision (h) to read as follows: 15 (H) NOTWITHSTANDING THE PROVISIONS OF SECTION THREE HUNDRED FIVE AND 16 THREE HUNDRED NINE OF THE STATE TECHNOLOGY LAW OR ANY OTHER LAW, THE 17 COMMISSIONER MAY REQUIRE ANY PERSON WHO HAS ELECTED TO MAINTAIN IN AN 18 ELECTRONIC FORMAT ANY PORTION OF THE RECORDS REQUIRED TO BE MAINTAINED 19 BY THAT PERSON UNDER THIS ARTICLE, TO MAKE THE ELECTRONIC RECORDS AVAIL- 20 ABLE AND ACCESSIBLE TO THE COMMISSIONER, NOTWITHSTANDING THAT THE 21 RECORDS ARE ALSO MAINTAINED IN A HARD COPY FORMAT. 22 S 2. Section 1145 of the tax law is amended by adding a new subdivi- 23 sion (i) to read as follows: 24 (I) ANY PERSON REQUIRED TO MAKE OR MAINTAIN RECORDS UNDER THIS ARTICLE 25 (BUT NOT INCLUDING THE RECORDS REQUIRED UNDER SECTION ELEVEN HUNDRED 26 FORTY-TWO-A OF THIS PART) WHO FAILS TO MAKE OR MAINTAIN OR MAKE AVAIL- 27 ABLE TO THE COMMISSIONER THESE RECORDS IS SUBJECT TO A PENALTY OF ONE 28 THOUSAND DOLLARS FOR THE FIRST QUARTER OR PART THEREOF FOR WHICH THE 29 FAILURE OCCURS AND FIVE THOUSAND DOLLARS FOR EACH ADDITIONAL QUARTERLY 30 PERIOD OR PART THEREOF FOR WHICH THE FAILURE OCCURS. THIS PENALTY IS IN 31 ADDITION TO ANY OTHER PENALTY PROVIDED FOR IN THIS ARTICLE BUT MAY NOT 32 BE IMPOSED AND COLLECTED MORE THAN ONCE FOR FAILURES FOR THE SAME QUAR- 33 TERLY PERIOD OR PART THEREOF. IF THE COMMISSIONER DETERMINES THAT A 34 FAILURE TO MAKE OR MAINTAIN OR MAKE AVAILABLE RECORDS IN ANY QUARTER WAS 35 ENTIRELY DUE TO REASONABLE CAUSE AND NOT TO WILLFUL NEGLECT, THE COMMIS- 36 SIONER MUST REMIT THE PENALTY IMPOSED FOR THAT QUARTER. THESE PENALTIES 37 WILL BE PAID AND DISPOSED OF IN THE SAME MANNER AS OTHER REVENUES FROM 38 THIS ARTICLE. THESE PENALTIES WILL BE DETERMINED, ASSESSED, COLLECTED, 39 PAID AND ENFORCED IN THE SAME MANNER AS THE TAX IMPOSED BY THIS ARTICLE, 40 AND ALL THE PROVISIONS OF THIS ARTICLE RELATING TO TAX WILL BE DEEMED 41 ALSO TO APPLY TO THE PENALTIES IMPOSED BY THIS SUBDIVISION. FOR PURPOSES 42 OF THE PENALTY IMPOSED BY THIS SUBDIVISION, A PERSON WILL BE CONSIDERED 43 TO HAVE FAILED TO MAKE OR MAINTAIN THE REQUIRED RECORDS WHEN THE RECORDS 44 MADE OR MAINTAINED BY THAT PERSON FOR A QUARTERLY PERIOD MAKE IT VIRTU- 45 ALLY IMPOSSIBLE TO VERIFY SALES RECEIPTS OR THE TAXABILITY OF THOSE 46 RECEIPTS AND TO CONDUCT A COMPLETE AUDIT. 47 S 3. Section 1145 of the tax law is amended by adding a new subdivi- 48 sion (j) to read as follows: 49 (J) ANY PERSON REQUIRED TO MAKE OR MAINTAIN RECORDS UNDER THIS ARTICLE 50 WHO FAILS TO PRESENT AND MAKE AVAILABLE THESE RECORDS IN AN AUDITABLE 51 FORM IS SUBJECT TO A PENALTY OF ONE THOUSAND DOLLARS FOR EACH QUARTERLY 52 PERIOD OR PART THEREOF FOR WHICH RECORDS MAINTAINED BY THAT PERSON ARE 53 NOT PRESENTED AND MADE AVAILABLE BY THAT PERSON IN AUDITABLE FORM, EVEN 54 IF THESE RECORDS ARE ADEQUATE TO VERIFY CREDITS, RECEIPTS, AND THE TAXA- S. 60--A 200 A. 160--A 1 BILITY THEREOF AND TO PERFORM A COMPLETE AUDIT. THIS PENALTY IS IN ADDI- 2 TION TO ANY OTHER PENALTY PROVIDED FOR IN THIS ARTICLE, BUT WILL NOT BE 3 IMPOSED AND COLLECTED MORE THAN ONCE FOR THESE FAILURES FOR THE SAME 4 QUARTERLY PERIOD OR PART THEREOF. IF THE COMMISSIONER DETERMINES THAT 5 ANY FAILURE DESCRIBED IN THIS SUBDIVISION FOR A QUARTERLY PERIOD WAS 6 ENTIRELY DUE TO REASONABLE CAUSE AND NOT TO WILLFUL NEGLECT, THE COMMIS- 7 SIONER MUST REMIT THE PENALTY IMPOSED FOR THAT QUARTER. THE PENALTIES 8 IMPOSED BY THIS SUBDIVISION WILL BE PAID AND DISPOSED OF IN THE SAME 9 MANNER AS OTHER REVENUES FROM THIS ARTICLE. THESE PENALTIES WILL BE 10 DETERMINED, ASSESSED, COLLECTED, PAID AND ENFORCED IN THE SAME MANNER AS 11 THE TAX IMPOSED BY THIS ARTICLE, AND ALL THE PROVISIONS OF THIS ARTICLE 12 RELATING TO TAX WILL BE DEEMED ALSO TO APPLY TO THE PENALTIES IMPOSED BY 13 THIS SUBDIVISION. FOR PURPOSES OF THE PENALTY IMPOSED BY THIS SUBDIVI- 14 SION, A PERSON WILL BE CONSIDERED TO HAVE FAILED TO PRESENT AND MAKE 15 RECORDS AVAILABLE IN AUDITABLE FORM WHEN THE RECORDS PRESENTED BY THAT 16 PERSON FOR THAT QUARTER LACK SUFFICIENT ORGANIZATION, SUCH AS BY DATE, 17 INVOICE NUMBER, SALES RECEIPTS, OR SEQUENTIAL NUMBERING, OR ARE OTHER- 18 WISE INADEQUATE (WITHOUT REORGANIZING, REORDERING OR OTHERWISE REARRANG- 19 ING THE RECORDS INTO AN AUDITABLE FORM) TO PERMIT DIRECT RECONCILIATION 20 OF THE RECEIPTS, INVOICES OR OTHER SOURCE DOCUMENTS WITH THE ENTRIES FOR 21 THE QUARTERLY PERIOD IN THE BOOKS AND RECORDS AND ON THE RETURNS OF THAT 22 PERSON. 23 S 4. Section 1145 of the tax law is amended by adding a new subdivi- 24 sion (k) to read as follows: 25 (K) ANY PERSON WHO, HAVING ELECTED TO MAINTAIN IN AN ELECTRONIC FORMAT 26 ANY PORTION OR ALL OF THE RECORDS HE OR SHE IS REQUIRED TO MAKE AND 27 MAINTAIN BY THIS ARTICLE, FAILS TO PRESENT AND MAKE THESE RECORDS AVAIL- 28 ABLE AND ACCESSIBLE TO THE COMMISSIONER IN ELECTRONIC FORMAT, IS SUBJECT 29 TO A PENALTY OF FIVE THOUSAND DOLLARS FOR EACH QUARTERLY PERIOD OR PART 30 THEREOF FOR WHICH THESE ELECTRONIC RECORDS ARE NOT PRESENTED AND MADE 31 AVAILABLE AND ACCESSIBLE UPON REQUEST, NOTWITHSTANDING THAT THE RECORDS 32 MAY ALSO BE MAINTAINED AND AVAILABLE IN HARD COPY FORMAT. THIS PENALTY 33 IS IN ADDITION TO ANY OTHER PENALTY PROVIDED FOR IN THIS ARTICLE, BUT 34 MAY NOT BE IMPOSED AND COLLECTED MORE THAN ONCE FOR A FAILURE FOR THE 35 SAME QUARTERLY PERIOD OR PART THEREOF. PROVIDED, HOWEVER, NOTHING IN 36 THIS SUBDIVISION WILL PREVENT THE SEPARATE IMPOSITION, IF APPLICABLE, OF 37 ANY PENALTY IMPOSED BY SUBDIVISION (I) OR (J) OF THIS SECTION FOR THE 38 SAME QUARTERLY PERIOD OR PART THEREOF. IF THE COMMISSIONER DETERMINES 39 THAT THE FAILURE TO PRESENT AND MAKE ELECTRONICALLY MAINTAINED RECORDS 40 AVAILABLE AND ACCESSIBLE FOR A QUARTERLY PERIOD WAS ENTIRELY DUE TO 41 REASONABLE CAUSE AND NOT TO WILLFUL NEGLECT, THE COMMISSIONER MUST REMIT 42 THE PENALTY IMPOSED FOR THAT QUARTER. THESE PENALTIES WILL BE PAID AND 43 DISPOSED OF IN THE SAME MANNER AS OTHER REVENUES FROM THIS ARTICLE. 44 THESE PENALTIES WILL BE DETERMINED, ASSESSED, COLLECTED, PAID AND 45 ENFORCED IN THE SAME MANNER AS THE TAX IMPOSED BY THIS ARTICLE, AND ALL 46 THE PROVISION OF THIS ARTICLE RELATING TO TAX WILL BE DEEMED ALSO TO 47 APPLY TO THE PENALTY IMPOSED BY THIS SUBDIVISION. FOR PURPOSES OF THE 48 PENALTY IMPOSED BY THIS SUBDIVISION, A FAILURE TO PRESENT AND MAKE 49 AVAILABLE AND ACCESSIBLE A RECORD MAINTAINED IN ELECTRONIC FORMAT 50 INCLUDES NOT ONLY THE DENIAL OF ACCESS TO THE REQUESTED RECORDS THAT 51 WERE MAINTAINED ELECTRONICALLY, BUT ALSO THE FAILURE TO MAKE AVAILABLE 52 TO THE COMMISSIONER THE INFORMATION, KNOWLEDGE, OR MEANS NECESSARY TO 53 ACCESS AND OTHERWISE USE THE ELECTRONICALLY MAINTAINED RECORDS IN THE 54 INSPECTION AND EXAMINATION OF THESE RECORDS. 55 S 5. This act shall take effect immediately and apply to failures 56 occurring on and after such date, except that subdivision (i) of section S. 60--A 201 A. 160--A 1 1145 of the tax law, as added by section two of this act, shall only 2 apply for records required to be made and maintained for sales tax quar- 3 terly periods commencing on or after such date. 4 SUBPART D 5 Section 1. Subsection (g) of section 685 of the tax law, as amended by 6 chapter 9 of the laws of 1976, is amended to read as follows: 7 (g) Willful failure to collect and pay over tax.-- Any person required 8 to collect, truthfully account for, and pay over the tax imposed by this 9 article who willfully fails to collect such tax or truthfully account 10 for and pay over such tax or willfully attempts in any manner to evade 11 or defeat the tax or the payment thereof, shall, in addition to other 12 penalties provided by law, be liable to a penalty equal to THE SUM OF 13 (I) the total amount of the tax evaded, or not collected, or not 14 accounted for and paid over, (II) THE INTEREST THAT HAS ACCRUED ON THE 15 TOTAL AMOUNT OF TAX EVADED ON THE DATE THIS PENALTY IS FIRST IMPOSED 16 UNTIL THIS PENALTY IS PAID WITH INTEREST THEREON, AND (III) THE ADDITION 17 TO TAX PROVIDED BY SUBSECTION (A) OF THIS SECTION. No addition to tax 18 under subsections (b) or (e) OF THIS SECTION shall be imposed for any 19 offense to which this subsection applies. The tax commission shall have 20 the power, in its discretion, to waive, reduce or compromise any penalty 21 under this subsection. 22 S 2. This act shall take effect immediately and shall apply to taxable 23 years beginning on or after January 1, 2009. 24 SUBPART E 25 Section 1. Paragraph (d) of subdivision 1 of section 289-b of the tax 26 law, as amended by chapter 61 of the laws of 1989, is amended to read as 27 follows: 28 (d) If the failure to pay any tax within the time required by or 29 pursuant to this article is due to fraud, in lieu of the penalties and 30 interest provided for in paragraphs (a) and (b) of this subdivision, 31 there shall be added to the tax (i) a penalty of [fifty per centum of] 32 THREE TIMES the amount of tax due, plus (ii) interest on such unpaid tax 33 at the underpayment rate set by the commissioner of taxation and finance 34 pursuant to subdivision twenty-sixth of section one hundred seventy-one 35 of this chapter for the period beginning on the last day prescribed by 36 this article for the payment of such tax (determined without regard to 37 any extension of time for paying) and ending on the day on which such 38 tax is paid[, plus (iii) for the period beginning on the last day 39 prescribed by this article for the payment of such tax (determined with- 40 out regard to any extension of time for paying) and ending on the day 41 the amount of tax due is finally determined or, if earlier, on the day 42 on which such tax is paid, an amount equal to fifty per centum of the 43 interest payable under subparagraph (ii) of this paragraph on that 44 portion of the unpaid tax which is attributable to fraud]. 45 S 2. Subdivision 1 of section 289-b of the tax law is amended by 46 adding a new paragraph (e-1) to read as follows: 47 (E-1) IN ADDITION TO ANY OTHER PENALTIES THAT MAY BE IMPOSED BY LAW, 48 ANY OF THE FOLLOWING PENALTIES MAY BE IMPOSED. 49 (I) ANY PERSON WHO FAILS TO FILE AN INFORMATIONAL RETURN UNDER THIS 50 ARTICLE ON OR BEFORE THE PRESCRIBED DATE, MUST PAY A PENALTY OF FIFTEEN 51 HUNDRED DOLLARS FOR THE FIRST VIOLATION AND A PENALTY OF THREE THOUSAND S. 60--A 202 A. 160--A 1 DOLLARS FOR EACH SUBSEQUENT VIOLATION, UNLESS IT CAN BE SHOWN THAT SUCH 2 FAILURE IS DUE TO REASONABLE CAUSE AND NOT WILLFUL NEGLECT. 3 (II) ANY PERSON WHO FAILS TO FILE AN INFORMATIONAL RETURN WITHIN SIXTY 4 DAYS OF THE DATE PRESCRIBED FOR FILING MUST PAY A PENALTY OF TWO THOU- 5 SAND DOLLARS FOR THE FIRST VIOLATION AND A PENALTY OF FOUR THOUSAND 6 DOLLARS FOR EACH SUBSEQUENT VIOLATION, UNLESS IT CAN BE SHOWN THAT SUCH 7 FAILURE IS DUE TO REASONABLE CAUSE AND NOT WILLFUL NEGLECT. 8 (III) ANY PERSON WHO FAILS TO FILE A COMPLETE INFORMATIONAL RETURN 9 MUST PAY A PENALTY OF FIFTEEN HUNDRED DOLLARS FOR THE FIRST VIOLATION 10 AND A PENALTY OF THREE THOUSAND DOLLARS FOR EACH SUBSEQUENT VIOLATION, 11 UNLESS IT CAN BE SHOWN THAT SUCH FAILURE IS DUE TO REASONABLE CAUSE AND 12 NOT WILLFUL NEGLECT. 13 (IV) IF ANY PERSON MAKES A STATEMENT ON AN INFORMATIONAL RETURN AND, 14 AS OF THE TIME OF THE STATEMENT, THERE WAS NO REASONABLE BASIS FOR THAT 15 STATEMENT, THAT PERSON MUST PAY A PENALTY OF TWO THOUSAND DOLLARS FOR 16 THE FIRST VIOLATION AND A PENALTY OF FOUR THOUSAND DOLLARS FOR EACH 17 SUBSEQUENT VIOLATION. 18 S 3. Paragraph (d) of subdivision 1 of section 433 of the tax law, as 19 amended by chapter 61 of the laws of 1989, is amended to read as 20 follows: 21 (d) If the failure to pay any tax within the time required by or 22 pursuant to this article is due to fraud, in lieu of the penalties and 23 interest provided for in paragraphs (a) and (b) of this subdivision, 24 there shall be added to the tax (i) a penalty of [fifty per centum of] 25 THREE TIMES the amount of tax due, plus (ii) interest on such unpaid tax 26 at the underpayment rate set by the commissioner of taxation and finance 27 pursuant to subdivision twenty-sixth of section one hundred seventy-one 28 of this chapter for the period beginning on the last day prescribed by 29 this article for the payment of such tax (determined without regard to 30 any extension of time for paying) and ending on the day on which such 31 tax is paid[, plus (iii) for the period beginning on the last day 32 prescribed by this article for the payment of such tax (determined with- 33 out regard to any extension of time for paying) and ending on the day 34 the amount of tax due is finally determined or, if earlier, on the day 35 on which such tax is paid, an amount equal to fifty per centum of the 36 interest payable under subparagraph (ii) of this paragraph on that 37 portion of the unpaid tax which is attributable to fraud]. 38 S 4. Subparagraph (iv) of paragraph (a) of subdivision 1 of section 39 481 of the tax law, as amended by chapter 61 of the laws of 1989, is 40 amended to read as follows: 41 (iv) If the failure to pay any tax within the time required by or 42 pursuant to this article is due to fraud, in lieu of the penalties and 43 interest provided for in subparagraphs (i) and (ii) of this paragraph, 44 there shall be added to the tax (A) a penalty of [fifty per centum of] 45 THREE TIMES the amount of tax due, plus (B) interest on such unpaid tax 46 at the underpayment rate set by the commissioner of taxation and finance 47 pursuant to subdivision twenty-sixth of section one hundred seventy-one 48 of this chapter for the period beginning on the last day prescribed by 49 this article for the payment of such tax (determined without regard to 50 any extension of time for paying) and ending on the day on which such 51 tax is paid[, plus (C) for the period beginning on the last day 52 prescribed by this article for the payment of such tax (determined with- 53 out regard to any extension of time for paying) and ending on the day 54 the amount of tax due is finally determined or, if earlier, on the day 55 on which such tax is paid, an amount equal to fifty per centum of the S. 60--A 203 A. 160--A 1 interest payable under clause (B) of this subparagraph on that portion 2 of the unpaid tax which is attributable to fraud]. 3 S 5. Paragraph (d) of subdivision 1 of section 512 of the tax law, as 4 amended by chapter 61 of the laws of 1989, is amended to read as 5 follows: 6 (d) If the failure to pay any tax within the time required by or 7 pursuant to this article is due to fraud, in lieu of the penalties and 8 interest provided for in paragraphs (a) and (b) of this subdivision, 9 there shall be added to the tax (i) a penalty of [fifty per centum of] 10 THREE TIMES the amount of tax due, plus (ii) interest on such unpaid tax 11 at the underpayment rate set by the commissioner of taxation and finance 12 pursuant to subdivision twenty-sixth of section one hundred seventy-one 13 of this chapter for the period beginning on the last day prescribed by 14 this article for the payment of such tax (determined without regard to 15 any extension of time for paying) and ending on the day on which such 16 tax is paid[, plus (iii) for the period beginning on the last day 17 prescribed by this article for the payment of such tax (determined with- 18 out regard to any extension of time for paying) and ending on the day 19 the amount of tax due is finally determined or, if earlier, on the day 20 on which such tax is paid, an amount equal to fifty per centum of the 21 interest payable under subparagraph (ii) of this paragraph on that 22 portion of the unpaid tax which is attributable to fraud]. 23 S 6. Subdivision (d) of section 527 of the tax law, as added by chap- 24 ter 170 of the laws of 1994, is amended to read as follows: 25 (d) Fraud. If the failure to pay any tax within the time required by 26 or pursuant to this article is due to fraud, in lieu of the penalties 27 provided for in subdivision (b) of this section, there shall be added to 28 the tax (1) a penalty of [fifty percent of] THREE TIMES the amount of 29 tax due[, plus (2) for the period beginning on the last day prescribed 30 by this article for the payment of such tax (determined without regard 31 to any extension of time for paying) and ending on the day the amount of 32 tax due is finally determined or, if earlier, on the day on which such 33 tax is paid, an interest penalty equal to fifty percent of the interest 34 payable under subdivision (a) of this section on that portion of the 35 unpaid tax which is attributable to fraud]. 36 S 7. Paragraph 1 of subsection (e) of section 685 of the tax law, as 37 amended by chapter 65 of the laws of 1985, is amended to read as 38 follows: 39 (1) If any part of a deficiency is due to fraud, there shall be added 40 to the tax an amount equal to [fifty percent of] THREE TIMES the defi- 41 ciency. 42 S 8. Paragraph 2 of subsection (e) of section 685 of the tax law is 43 REPEALED and paragraphs 3 and 4 are renumbered paragraphs 2 and 3. 44 S 9. Subsection (q) of section 685 of the tax law, as added by chapter 45 65 of the laws of 1985, is amended to read as follows: 46 (q) Frivolous tax returns AND SPECIFIED FRIVOLOUS SUBMISSIONS.-- (1) 47 If any individual files what purports to be a return of any tax imposed 48 by this article but which does not contain information on which the 49 substantial correctness of the self-assessment may be judged, or 50 contains information that on its face indicates that the self-assessment 51 is substantially incorrect; and such conduct is due to a position which 52 is frivolous, INCLUDING A POSITION IDENTIFIED AS FRIVOLOUS UNDER PARA- 53 GRAPH THREE OF THIS SUBSECTION, or an intent [(which appears on the 54 purported return)] to delay or impede the administration of this arti- 55 cle, then such individual shall pay a penalty not exceeding five S. 60--A 204 A. 160--A 1 [hundred] THOUSAND dollars. This penalty shall be in addition to any 2 other penalty provided by law. 3 (2) PENALTY FOR SPECIFIED FRIVOLOUS SUBMISSIONS. (A) ANY PERSON WHO 4 SUBMITS A SPECIFIED FRIVOLOUS SUBMISSION SHALL PAY A PENALTY OF FIVE 5 THOUSAND DOLLARS. THIS PENALTY SHALL BE IN ADDITION TO ANY OTHER PENALTY 6 PROVIDED BY LAW. 7 (B) THE TERM "SPECIFIED FRIVOLOUS SUBMISSION" MEANS A SPECIFIED 8 SUBMISSION IF ANY PORTION OF THAT SUBMISSION (I) IS BASED ON A POSITION 9 THAT THE COMMISSIONER HAS IDENTIFIED AS FRIVOLOUS UNDER PARAGRAPH THREE 10 OF THIS SUBDIVISION, OR (II) REFLECTS A DESIRE TO DELAY OR IMPEDE THE 11 ADMINISTRATION OF THIS CHAPTER. 12 (C) THE TERM "SPECIFIED SUBMISSION" MEANS A REQUEST FOR CONCILIATION 13 CONFERENCE, A PETITION TO THE DIVISION OF TAX APPEALS, AN APPLICATION 14 FOR AN INSTALLMENT PAYMENT AGREEMENT, OR AN OFFER IN COMPROMISE. 15 (D) IF THE COMMISSIONER PROVIDES AN INDIVIDUAL WITH NOTICE THAT A 16 SUBMISSION IS A SPECIFIED FRIVOLOUS SUBMISSION AND THAT PERSON WITHDRAWS 17 THE SUBMISSION WITHIN THIRTY DAYS AFTER SUCH NOTICE, THE PENALTY IMPOSED 18 UNDER THIS PARAGRAPH WILL NOT APPLY WITH RESPECT TO THAT SUBMISSION. 19 (3) LISTING OF FRIVOLOUS POSITIONS. THE COMMISSIONER WILL PRESCRIBE 20 (AND PERIODICALLY REVISE) A LIST OF POSITIONS THAT THE COMMISSIONER HAS 21 IDENTIFIED AS FRIVOLOUS FOR PURPOSES OF THIS SUBSECTION. 22 (4) REDUCTION OF PENALTY. THE COMMISSIONER MAY REDUCE THE AMOUNT OF 23 ANY PENALTY IMPOSED UNDER THIS SECTION IF THE COMMISSIONER DETERMINES 24 THAT SUCH A REDUCTION WOULD PROMOTE COMPLIANCE WITH AND ADMINISTRATION 25 OF THIS CHAPTER. 26 S 10. Section 685 of the tax law is amended by adding a new subsection 27 (cc) to read as follows: 28 (CC) FALSE OR FRAUDULENT DOCUMENT PENALTY. ANY TAXPAYER THAT SUBMITS A 29 FALSE OR FRAUDULENT DOCUMENT TO THE DEPARTMENT WILL BE SUBJECT TO A 30 PENALTY OF ONE HUNDRED DOLLARS PER DOCUMENT SUBMITTED, OR FIVE HUNDRED 31 DOLLARS PER TAX RETURN SUBMITTED. THIS PENALTY WILL BE IN ADDITION TO 32 ANY OTHER PENALTY OR ADDITION PROVIDED BY LAW. 33 S 11. Paragraph 1 of subsection (f) of section 1085 of the tax law, as 34 amended by chapter 65 of the laws of 1985, is amended to read as 35 follows: 36 (1) If any part of a deficiency is due to fraud, there shall be added 37 to the tax an amount equal to [fifty percent of] THREE TIMES the defi- 38 ciency. 39 S 12. Paragraph 2 of subsection (f) of section 1085 of the tax law is 40 REPEALED and paragraph 3 is renumbered paragraph 2. 41 S 13. Section 1085 of the tax law is amended by adding a new 42 subsection (u) to read as follows: 43 (U) FALSE OR FRAUDULENT DOCUMENT PENALTY. ANY TAXPAYER THAT SUBMITS A 44 FALSE OR FRAUDULENT DOCUMENT TO THE DEPARTMENT WILL BE SUBJECT TO A 45 PENALTY OF ONE HUNDRED DOLLARS PER DOCUMENT SUBMITTED, OR FIVE HUNDRED 46 DOLLARS PER TAX RETURN SUBMITTED. THIS PENALTY WILL BE IN ADDITION TO 47 ANY OTHER PENALTY OR ADDITION PROVIDED BY LAW. 48 S 14. Paragraph 2 of subdivision (a) of section 1145 of the tax law, 49 as amended by section 12 of part R of chapter 85 of the laws of 2002, is 50 amended to read as follows: 51 (2) If the failure to pay or pay over any tax to the commissioner 52 within the time required by this article is due to fraud, in lieu of the 53 penalties and interest provided for in subparagraphs (i) and (ii) of 54 paragraph one of this subdivision, there shall be added to the tax (i) a 55 penalty of [fifty percent of] THREE TIMES the amount of the tax due, 56 plus (ii) interest on such unpaid tax at the rate of fourteen percent S. 60--A 205 A. 160--A 1 per annum or the underpayment rate of interest set by the commissioner 2 pursuant to section eleven hundred forty-two OF THIS PART, whichever is 3 greater, for the period beginning on the last day prescribed by this 4 article for the payment of such tax (determined without regard to any 5 extension of time for paying) and ending on the day on which such tax is 6 paid[, plus (iii) for the period beginning on the last day prescribed by 7 this article for the payment of such tax (determined without regard to 8 any extension of time for paying) and ending on the day the amount of 9 tax due is finally determined or, if earlier, on the day on which such 10 tax is paid, an amount equal to fifty percent of the interest payable 11 under subparagraph (ii) of this paragraph, on that portion of the unpaid 12 tax which is attributable to fraud]. 13 S 15. Section 1145 of the tax law is amended by adding two new subdi- 14 visions (i) and (j) to read as follows: 15 (I) AIDING OR ASSISTING IN THE GIVING OF FRAUDULENT RETURNS, REPORTS, 16 STATEMENTS OR OTHER DOCUMENTS. ANY PERSON WHO, WITH THE INTENT THAT TAX 17 BE EVADED, FOR A FEE OR OTHER COMPENSATION OR AS AN INCIDENT TO THE 18 PERFORMANCE OF OTHER SERVICES FOR WHICH THAT PERSON RECEIVES COMPEN- 19 SATION, AIDS OR ASSISTS IN, OR PROCURES, COUNSELS, OR ADVISES THE PREPA- 20 RATION OR PRESENTATION UNDER THIS ARTICLE, OR IN CONNECTION WITH ANY 21 MATTER ARISING UNDER THIS ARTICLE, OF ANY RETURN, REPORT, DECLARATION, 22 STATEMENT OR OTHER DOCUMENT THAT IS FRAUDULENT OR FALSE AS TO ANY MATE- 23 RIAL MATTER, OR SUPPLIES ANY FALSE OR FRAUDULENT INFORMATION, WHETHER OR 24 NOT SUCH FALSITY OR FRAUD IS WITH THE KNOWLEDGE OR CONSENT OF THE PERSON 25 AUTHORIZED OR REQUIRED TO PRESENT THAT RETURN, REPORT, DECLARATION, 26 STATEMENT OR OTHER DOCUMENT, WILL PAY A PENALTY NOT EXCEEDING FIVE THOU- 27 SAND DOLLARS. THE DEFINITIONS IN SUBSECTION (L) OF SECTION TEN HUNDRED 28 EIGHTY-FIVE OF THIS CHAPTER APPLY FOR THE PURPOSES OF THIS PENALTY. 29 (J) FALSE OR FRAUDULENT DOCUMENT PENALTY. ANY TAXPAYER THAT SUBMITS A 30 FALSE OR FRAUDULENT DOCUMENT TO THE DEPARTMENT WILL BE SUBJECT TO A 31 PENALTY OF ONE HUNDRED DOLLARS PER DOCUMENT SUBMITTED, OR FIVE HUNDRED 32 DOLLARS PER TAX RETURN SUBMITTED. THIS PENALTY WILL BE IN ADDITION TO 33 ANY OTHER PENALTY PROVIDED BY LAW. 34 S 16. Subdivision (iii) of section 12 of part N of chapter 61 of the 35 laws of 2005 amending the tax law relating to certain transactions and 36 related information, as amended by section 1 of part DD-1 of chapter 57 37 of the laws of 2008, is amended to read as follows: 38 (iii) provided, further, that the provisions of this act, except 39 section five of this act, shall expire and be deemed repealed July 1, 40 2011. The commissioner of taxation and finance shall cause to be 41 prepared a written report on the tax shelter law. Notwithstanding any 42 other provision of law to the contrary, such report shall include, but 43 not be limited to, statistical information regarding the listed and 44 reportable transactions and avoidance transactions under this act. A 45 copy of such report shall be delivered to the governor, the temporary 46 president of the senate, and the speaker of the assembly no later than 47 April 1, 2007; provided, that, such expiration and repeal shall not 48 affect any requirement imposed pursuant to this act. 49 S 17. This act shall take effect immediately and apply to returns and 50 other documents filed or required to be filed and actions taken and 51 omissions occurring on or after the date this act becomes a law; 52 provided however, that sections seven through thirteen of this act shall 53 apply to taxable years beginning on or after January 1, 2009. 54 SUBPART F S. 60--A 206 A. 160--A 1 Section 1. Paragraphs (b) and (e) of subdivision 3-a of section 170 of 2 the tax law, as added by chapter 282 of the laws of 1986, are amended to 3 read as follows: 4 (b) A request for a conciliation conference shall be applied for in 5 the manner as set forth by regulation of the commissioner and, notwith- 6 standing any provision of law to the contrary, shall suspend the running 7 of the period of limitations for the filing of a petition protesting 8 such notice and requesting a hearing, EXCEPT THAT THE RECIPIENT OF A 9 WRITTEN NOTICE DESCRIBED IN PARAGRAPH (H) OF THIS SUBDIVISION WILL HAVE 10 THIRTY DAYS FROM THE TIME SUCH REQUEST OF DISCONTINUANCE IS MADE TO 11 PETITION THE DIVISION OF TAX APPEALS FOR A HEARING. [To discontinue the 12 conciliation proceeding, the recipient of the notice shall make a 13 request in writing and such person shall have ninety days from the time 14 such request of discontinuance is made to petition the division of tax 15 appeals for a hearing.] The commissioner shall notify the division of 16 tax appeals when any person requests a conference or requests to discon- 17 tinue such conference. 18 (e) A conciliation order shall be rendered within thirty days after 19 the proceeding is concluded and such order shall, in the absence of a 20 showing of fraud, malfeasance or misrepresentation of a material fact, 21 be binding upon the department and the person who requested the confer- 22 ence, except such order shall not be binding on such person if such 23 person petitions for the hearing provided for under this chapter within 24 ninety days after the conciliation order is issued, OR, FOR A CONCIL- 25 IATION ORDER AFFIRMING A WRITTEN NOTICE DESCRIBED IN PARAGRAPH (H) OF 26 THIS SUBDIVISION, WITHIN THIRTY DAYS AFTER THE CONCILIATION ORDER IS 27 ISSUED, notwithstanding any other provision of law to the contrary. 28 S 2. Subdivision 3-a of section 170 the tax law is amended by adding a 29 new paragraph (h) to read as follows: 30 (H) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, ANY PERSON 31 WHO SEEKS REVIEW BY THE BUREAU OF CONCILIATION AND MEDIATION SERVICES OF 32 A WRITTEN NOTICE THAT ADVISES THAT PERSON OF (I) THE PROPOSED CANCELLA- 33 TION, REVOCATION, OR SUSPENSION OF A LICENSE, PERMIT, REGISTRATION, OR 34 OTHER CREDENTIAL ISSUED UNDER THE AUTHORITY OF THIS CHAPTER, (II) THE 35 DENIAL OF AN APPLICATION FOR A LICENSE, PERMIT, REGISTRATION, OR OTHER 36 CREDENTIAL ISSUED UNDER THE AUTHORITY OF THIS CHAPTER EXCLUDING AN 37 APPLICATION TO RENEW A CERTIFICATE OF AUTHORITY FILED PURSUANT TO PARA- 38 GRAPH FIVE OF SUBDIVISION (A) OF SECTION ONE THOUSAND ONE HUNDRED THIR- 39 TY-FOUR OF THIS CHAPTER AND ANY OTHER LAW, OR, (III) THE IMPOSITION OF A 40 FRAUD PENALTY UNDER THIS CHAPTER, MUST REQUEST A CONCILIATION CONFERENCE 41 WITHIN THIRTY DAYS OF RECEIPT OF THAT NOTICE. 42 S 3. Section 2008 of the tax law, as amended by chapter 401 of the 43 laws of 1987, is amended to read as follows: 44 S 2008. Commencement of proceedings. 1. All proceedings in the divi- 45 sion of tax appeals shall be commenced by the filing of a petition with 46 the division of tax appeals protesting any written notice of the divi- 47 sion of taxation which has advised the petitioner of a tax deficiency, a 48 determination of tax due, a denial of a refund or credit application, a 49 cancellation, revocation or suspension of a license, permit or registra- 50 tion, a denial of an application for a license, permit or registration 51 or any other notice which gives a person the right to a hearing in the 52 division of tax appeals under this chapter or other law. 53 2. EXPEDITED HEARINGS. (A) NOTWITHSTANDING ANY PROVISION LAW TO THE 54 CONTRARY, ANY PERSON WHO RECEIVES A WRITTEN NOTICE THAT ADVISES THAT 55 PERSON OF (I) THE PROPOSED CANCELLATION, REVOCATION, OR SUSPENSION OF A 56 LICENSE, PERMIT, REGISTRATION, OR OTHER CREDENTIAL ISSUED UNDER THE S. 60--A 207 A. 160--A 1 AUTHORITY OF THIS CHAPTER, (II) THE DENIAL OF AN APPLICATION FOR A 2 LICENSE, PERMIT, REGISTRATION, OR OTHER CREDENTIAL ISSUED UNDER THE 3 AUTHORITY OF THIS CHAPTER EXCLUDING AN APPLICATION TO RENEW A CERTIF- 4 ICATE OF AUTHORITY FILED PURSUANT TO PARAGRAPH FIVE OF SUBDIVISION (A) 5 OF SECTION ONE THOUSAND ONE HUNDRED THIRTY-FOUR OF THIS CHAPTER AND ANY 6 OTHER LAW, OR, (III) THE IMPOSITION OF A FRAUD PENALTY UNDER THIS CHAP- 7 TER, MUST FILE A PETITION WITH THE DIVISION OF TAX APPEALS WITHIN THIRTY 8 DAYS OF RECEIPT OF THAT NOTICE (UNLESS THAT PERSON HAS REQUESTED A 9 CONCILIATION CONFERENCE AS PROVIDED IN SUBDIVISION THREE-A OF SECTION 10 ONE HUNDRED SEVENTY OF THIS CHAPTER), OR THE CANCELLATION, REVOCATION, 11 SUSPENSION, DENIAL, OR PENALTY WILL BE PERMANENTLY AND IRREVOCABLY 12 FIXED. AN EXPEDITED HEARING MUST BE SCHEDULED WITHIN TEN BUSINESS DAYS 13 OF RECEIPT OF THE PETITION. 14 (B) IN THE CASE OF ANY EXPEDITED HEARING PROVIDED FOR UNDER THIS 15 SUBDIVISION, THE ADMINISTRATIVE LAW JUDGE MUST RENDER A DECISION WITHIN 16 THIRTY DAYS FROM RECEIPT OF THE PETITION. WHEN EXCEPTION IS TAKEN TO AN 17 ADMINISTRATIVE LAW JUDGE'S DETERMINATION, THE TAX APPEALS TRIBUNAL MUST 18 ISSUE ITS DECISION WITHIN THREE MONTHS FROM RECEIPT OF THE PETITION. ANY 19 REQUEST BY THE PETITIONER THAT DELAYS THE EXPEDITED HEARING PROCESS WILL 20 EXTEND THE TIME LIMITATIONS IMPOSED ON THE TRIBUNAL OR THE ADMINISTRA- 21 TIVE LAW JUDGE TO ISSUE A DECISION OR DETERMINATION. THE TRIBUNAL OR 22 ADMINISTRATIVE LAW JUDGE MAY NOT APPROVE ANY POSTPONEMENT OR OTHER DELAY 23 WITHOUT A SHOWING OF EXIGENT CIRCUMSTANCES BY THE MOVING PARTY AND MUST 24 RENDER A DEFAULT DETERMINATION OR DECISION AGAINST THE DILATORY PARTY 25 FOR ANY UNWARRANTED DELAY. 26 (C) IN ANY CASE WHERE AN EXPEDITED HEARING IS REQUIRED UNDER THIS 27 SUBDIVISION, IF THE COMMISSIONER BELIEVES THAT THE COLLECTION OF ANY TAX 28 OR THE PUBLIC SAFETY WILL BE JEOPARDIZED BY DELAY, HE OR SHE MAY IMME- 29 DIATELY CANCEL, REVOKE, OR SUSPEND A LICENSE, PERMIT, REGISTRATION, OR 30 OTHER CREDENTIAL ISSUED UNDER THE AUTHORITY OF THIS CHAPTER BEFORE THE 31 COMMENCEMENT OF THOSE PROCEEDINGS. WRITTEN NOTICE OF THE CANCELLATION, 32 REVOCATION, OR SUSPENSION MUST BE GIVEN TO THE LICENSEE, PERMITTEE, 33 REGISTRANT, OR OTHERWISE CREDENTIALED PERSON BY REGISTERED OR CERTIFIED 34 MAIL OR PERSONAL SERVICE AS PROVIDED BY THE CIVIL PRACTICE LAW AND 35 RULES. THE LICENSE, PERMIT, REGISTRATION, OR OTHER CREDENTIAL WILL BE 36 PERMANENTLY AND IRREVOCABLY CANCELLED, REVOKED, OR SUSPENDED, UNLESS THE 37 LICENSEE, PERMITTEE, REGISTRANT, OR OTHERWISE CREDENTIALED PERSON, WITH- 38 IN THIRTY DAYS OF RECEIPT OF THE WRITTEN NOTICE, FILES A PETITION WITH 39 THE DIVISION OF TAX APPEALS TO REVIEW THE CANCELLATION, REVOCATION, OR 40 SUSPENSION. AN EXPEDITED HEARING MUST BE SCHEDULED WITHIN TEN BUSINESS 41 DAYS OF RECEIPT OF THE PETITION. 42 S 4. This act shall take effect immediately and shall apply to notices 43 issued on and after such date. 44 SUBPART G 45 Section 1. The tax law is amended by adding a new section 1702 to read 46 as follows: 47 S 1702. CLAIMS FOR AWARDS FOR INFORMATION RELATING TO NONCOMPLIANCE 48 WITH THE TAX LAW. 1. THE COMMISSIONER, PURSUANT TO STANDARDS SET FORTH 49 IN REGULATIONS, IS AUTHORIZED TO AWARD SUCH SUMS AS HE OR SHE DEEMS 50 APPROPRIATE, FOR INFORMATION REPORTED TO THE COMMISSIONER THAT LEADS TO 51 THE DETERMINATION OF SUBSTANTIAL UNDERPAYMENTS OF TAX OR LEADS TO THE 52 PROSECUTION AND CONVICTION OF PERSONS GUILTY OF VIOLATING, ATTEMPTING TO 53 VIOLATE, OR CONSPIRING TO VIOLATE PROVISIONS OF THIS CHAPTER OR THE 54 PENAL LAW THAT RELATE TO THE UNDERPAYMENT OF TAXES, THE FILING OF FALSE S. 60--A 208 A. 160--A 1 OR FRAUDULENT TAX DOCUMENTS OR ANY REGISTRATION OR LICENSING REQUIREMENT 2 OF THIS CHAPTER. THE COMMISSIONER SHALL PROMULGATE REGULATIONS TO SPECI- 3 FY THE AWARD VALUES, INCLUDING MINIMUM AND MAXIMUM AWARD LEVELS. THE 4 PROCEDURES FOR PROVIDING INFORMATION AND CLAIMING AWARDS MAY BE SET 5 FORTH IN FORMS AND INSTRUCTIONS. 6 2. ALL AWARDS PAID PURSUANT TO THIS SECTION SHALL BE PAID, SUBJECT TO 7 THE AVAILABILITY OF APPROPRIATION AUTHORITY, FROM THE GENERAL FUND OF 8 THE STATE UPON CERTIFICATION BY THE COMMISSIONER. 9 3. THE AWARD DETERMINED BY THE COMMISSIONER TO BE PAYABLE UNDER THIS 10 SECTION SHALL BE EITHER A PRESCRIBED PERCENTAGE OF THE AMOUNT OF TAX 11 (BUT NOT PENALTY OR INTEREST) COLLECTED BY THE DEPARTMENT AS A RESULT OF 12 THE INFORMATION PROVIDED, OR A LUMP SUM AWARD. THE COMMISSIONER IS 13 AUTHORIZED TO PRESCRIBE BY REGULATION THE CIRCUMSTANCES WHEN A LUMP SUM 14 AWARD WOULD BE PAYABLE AND THE AMOUNTS. IN NO EVENT MAY A LUMP SUM 15 AWARD EXCEED ONE THOUSAND DOLLARS. 16 4. TO BE ELIGIBLE FOR AN AWARD OTHER THAN IN INSTANCES WHERE A LUMP 17 SUM AWARD IS AUTHORIZED, THE AMOUNT OF TAX EVADED OR UNPAID AS A RESULT 18 OF THE ACTIONS BEING REPORTED PURSUANT TO THIS SECTION MUST BE AT LEAST 19 FIVE THOUSAND DOLLARS IF THE TAX AT ISSUE IS THE PERSONAL INCOME TAX AND 20 THIRTY THOUSAND DOLLARS FOR ALL OTHER TAXES. A PERSON IS INELIGIBLE FOR 21 AN AWARD IF THAT PERSON HAS BEEN CONVICTED OF A CRIME RELATING TO THE 22 ACTIONS BEING REPORTED UNDER THIS SECTION, OR PARTICIPATED IN THAT CRIME 23 EVEN IF NOT CHARGED, OR IF THAT PERSON PLANNED AND INITIATED THE ACTIONS 24 THAT ARE BEING REPORTED PURSUANT TO THIS SECTION. 25 5. THE IDENTITY OF A CLAIMANT FOR AN AWARD MADE PURSUANT TO THE 26 PROVISIONS OF THIS SECTION CANNOT BE DISCLOSED. A CLAIM FOR AN AWARD MAY 27 BE SUBMITTED BY THE EXECUTOR, ADMINISTRATOR, OR OTHER LEGAL REPRESEN- 28 TATIVE ON BEHALF OF A DECEASED INFORMANT. AN EMPLOYEE OR OFFICER OF THE 29 DEPARTMENT, OR IMMEDIATE FAMILY MEMBER OF AN EMPLOYEE OR OFFICER OF THE 30 DEPARTMENT, IS NOT ELIGIBLE FOR ANY AWARD AVAILABLE PURSUANT TO THE 31 PROVISIONS OF THIS SECTION. IF, AT THE TIME A PERSON CAME INTO 32 POSSESSION OF INFORMATION OTHERWISE ELIGIBLE FOR AN AWARD, THAT PERSON 33 WAS AN EMPLOYEE OR OFFICER OF THE DEPARTMENT, OR AN IMMEDIATE FAMILY 34 MEMBER OF AN EMPLOYEE OR OFFICER OF THE DEPARTMENT, THAT INFORMATION IS 35 INELIGIBLE FOR AN AWARD. 36 S 2. This act shall take effect immediately. 37 SUBPART H 38 Section 1. Subparagraph (A) of paragraph (4) of subdivision (a) of 39 section 674 of the tax law, as amended by chapter 477 of the laws of 40 1998, is amended to read as follows: 41 (4)(A) All employers described in paragraph one of subsection (a) of 42 section six hundred seventy-one of this part, including those whose 43 wages paid are not sufficient to require the withholding of tax from the 44 wages of any of their employees, all employers required to provide the 45 wage reporting information for the employees described in subdivision 46 one of section one hundred seventy-one-a of this chapter, and all 47 employers liable for unemployment insurance contributions or for 48 payments in lieu of such contributions pursuant to article eighteen of 49 the labor law, shall file a quarterly combined withholding, wage report- 50 ing and unemployment insurance return detailing the preceding calendar 51 quarter's withholding tax transactions, such quarter's wage reporting 52 information, such quarter's unemployment insurance contributions, and 53 such other related information as the commissioner of taxation and 54 finance or the commissioner of labor, as applicable, may prescribe. In S. 60--A 209 A. 160--A 1 addition, the return covering the last calendar quarter of each year 2 shall also include withholding reconciliation information for such 3 calendar year. Such returns shall be filed no later than the last day of 4 the month following the last day of each calendar quarter[; provided, 5 however, that an employer may provide the wage reporting information 6 covering the last calendar quarter of each year, and the withholding 7 reconciliation information for such year no later than February twenty- 8 eighth of the succeeding year]. 9 S 2. This act shall take effect immediately. 10 SUBPART I 11 Section 1. The tax law is amended by adding a new section 179-a to 12 read as follows: 13 S 179-A. TAX LEVIES UPON A BRANCH OR SEPARATE OFFICE OF A BANK. 14 NOTWITHSTANDING SECTION 4-106 OF THE UNIFORM COMMERCIAL CODE, ANY OTHER 15 PROVISIONS OF ARTICLE THREE OR FOUR OF THE UNIFORM COMMERCIAL CODE, OR 16 ANY OTHER LAW OR RULING TO THE CONTRARY, A BRANCH OR SEPARATE OFFICE OF 17 A BANK IS NOT A SEPARATE BANK FOR THE PURPOSE OF THE RECEIPT OF NOTICE 18 OF AND COMPLIANCE WITH A TAX LEVY SERVED ON ANY BRANCH OR OFFICE OF THE 19 SAME BANK LOCATED WITHIN THE STATE. 20 S 2. This act shall take effect immediately. 21 SUBPART J 22 Section 1. Subdivision 4 of section 20.40 of the criminal procedure 23 law is amended by adding a new paragraph (m) to read as follows: 24 (M) AN OFFENSE UNDER THE TAX LAW OR THE PENAL LAW OF FILING A FALSE OR 25 FRAUDULENT RETURN, REPORT, DOCUMENT, DECLARATION, STATEMENT, OR FILING, 26 OR OF TAX EVASION, FRAUD, OR LARCENY RESULTING FROM THE FILING OF A 27 FALSE OR FRAUDULENT RETURN, REPORT, DOCUMENT, DECLARATION, OR FILING IN 28 CONNECTION WITH THE PAYMENT OF TAXES TO THE STATE OR A POLITICAL SUBDI- 29 VISION OF THE STATE, MAY BE PROSECUTED IN ANY COUNTY IN WHICH AN UNDER- 30 LYING TRANSACTION REFLECTED, REPORTED OR REQUIRED TO BE REFLECTED OR 31 REPORTED, IN WHOLE OR PART, ON SUCH RETURN, REPORT, DOCUMENT, DECLARA- 32 TION, STATEMENT, OR FILING OCCURRED. 33 S 2. Subdivision 1 of section 470.05 of the penal law, as added by 34 chapter 489 of the laws of 2000, is amended to read as follows: 35 1. Knowing that the property involved in one or more financial trans- 36 actions represents the proceeds of criminal conduct: 37 (a) he or she conducts one or more such financial transactions which 38 in fact involve the proceeds of specified criminal conduct: 39 (i) With intent to: 40 (A) promote the carrying on of criminal conduct; or 41 (B) engage in conduct constituting a felony as set forth in section 42 [eighteen hundred two,] eighteen hundred three, eighteen hundred four, 43 eighteen hundred five, [eighteen hundred seven or eighteen hundred 44 eight] OR EIGHTEEN HUNDRED SIX of the tax law; or 45 (ii) Knowing that the transaction or transactions in whole or in part 46 are designed to: 47 (A) conceal or disguise the nature, the location, the source, the 48 ownership or the control of the proceeds of criminal conduct; or 49 (B) avoid any transaction reporting requirement imposed by law; and 50 (b) The total value of the property involved in such financial trans- 51 action or transactions exceeds five thousand dollars; or S. 60--A 210 A. 160--A 1 S 3. Subdivision 1 of section 470.10 of the penal law, as added by 2 chapter 489 of the laws of 2000, is amended to read as follows: 3 1. Knowing that the property involved in one or more financial trans- 4 actions represents: 5 (a) the proceeds of the criminal sale of a controlled substance, he or 6 she conducts one or more such financial transactions which in fact 7 involve the proceeds of the criminal sale of a controlled substance: 8 (i) With intent to: 9 (A) promote the carrying on of specified criminal conduct; or 10 (B) engage in conduct constituting a felony as set forth in section 11 [eighteen hundred two,] eighteen hundred three, eighteen hundred four, 12 eighteen hundred five, [eighteen hundred seven or eighteen hundred 13 eight] OR EIGHTEEN HUNDRED SIX of the tax law; or 14 (ii) Knowing that the transaction or transactions in whole or in part 15 are designed to: 16 (A) conceal or disguise the nature, the location, the source, the 17 ownership or the control of the proceeds of specified criminal conduct; 18 or 19 (B) avoid any transaction reporting requirement imposed by law; and 20 (iii) The total value of the property involved in such financial tran- 21 saction or transactions exceeds ten thousand dollars; or 22 (b) the proceeds of criminal conduct, he or she conducts one or more 23 such financial transactions which in fact involve the proceeds of speci- 24 fied criminal conduct: 25 (i) With intent to: 26 (A) promote the carrying on of criminal conduct; or 27 (B) engage in conduct constituting a felony as set forth in section 28 [eighteen hundred two,] eighteen hundred three, eighteen hundred four, 29 eighteen hundred five, [eighteen hundred seven or eighteen hundred 30 eight] OR EIGHTEEN HUNDRED SIX of the tax law; or 31 (ii) knowing that the transaction or transactions in whole or in part 32 are designed to: 33 (A) conceal or disguise the nature, the location, the source, the 34 ownership or the control of the proceeds of criminal conduct; or 35 (B) avoid any transaction reporting requirement imposed by law; and 36 (iii) The total value of the property involved in such financial tran- 37 saction or transactions exceeds fifty thousand dollars; or 38 S 4. Subdivision 1 of section 470.15 of the penal law, as added by 39 chapter 489 of the laws of 2000, is amended to read as follows: 40 1. Knowing that the property involved in one or more financial trans- 41 actions represents: 42 (a) the proceeds of the criminal sale of a controlled substance, he or 43 she conducts one or more such financial transactions which in fact 44 involve the proceeds of the criminal sale of a controlled substance: 45 (i) With intent to: 46 (A) promote the carrying on of specified criminal conduct; or 47 (B) engage in conduct constituting a felony as set forth in section 48 [eighteen hundred two,] eighteen hundred three, eighteen hundred four, 49 eighteen hundred five, [eighteen hundred seven or eighteen hundred 50 eight] OR EIGHTEEN HUNDRED SIX of the tax law; or 51 (ii) Knowing that the transaction or transactions in whole or in part 52 are designed to: 53 (A) conceal or disguise the nature, the location, the source, the 54 ownership or the control of the proceeds of specified criminal conduct; 55 or 56 (B) avoid any transaction reporting requirement imposed by law; and S. 60--A 211 A. 160--A 1 (iii) The total value of the property involved in such financial tran- 2 saction or transactions exceeds fifty thousand dollars; or 3 (b) the proceeds of specified criminal conduct, he or she conducts one 4 or more such financial transactions which in fact involve the proceeds 5 of specified criminal conduct: 6 (i) With intent to: 7 (A) promote the carrying on of specified criminal conduct; or 8 (B) engage in conduct constituting a felony as set forth in section 9 [eighteen hundred two,] eighteen hundred three, eighteen hundred four, 10 eighteen hundred five, [eighteen hundred seven or eighteen hundred 11 eight] OR EIGHTEEN HUNDRED SIX of the tax law; or 12 (ii) Knowing that the transaction or transactions in whole or in part 13 are designed to: 14 (A) conceal or disguise the nature, the location, the source, the 15 ownership or the control of the proceeds of specified criminal conduct; 16 or 17 (B) avoid any transaction reporting requirement imposed by law; and 18 (iii) The total value of the property involved in such financial tran- 19 saction or transactions exceeds one hundred thousand dollars; or 20 S 5. Subdivision 1 of section 470.20 of the penal law, as added by 21 chapter 489 of the laws of 2000, is amended to read as follows: 22 1. Knowing that the property involved in one or more financial trans- 23 actions represents: 24 (a) the proceeds of the criminal sale of a controlled substance, he or 25 she conducts one or more such financial transactions which in fact 26 involve the proceeds of the criminal sale of a controlled substance: 27 (i) With intent to: 28 (A) promote the carrying on of specified criminal conduct; or 29 (B) engage in conduct constituting a felony as set forth in section 30 [eighteen hundred two,] eighteen hundred three, eighteen hundred four, 31 eighteen hundred five, [eighteen hundred seven or eighteen hundred 32 eight] OR EIGHTEEN HUNDRED SIX of the tax law; or 33 (ii) Knowing that the transaction or transactions in whole or in part 34 are designed to: 35 (A) conceal or disguise the nature, the location, the source, the 36 ownership or the control of the proceeds of specified criminal conduct; 37 or 38 (B) avoid any transaction reporting requirement imposed by law; and 39 (iii) The total value of the property involved in such financial tran- 40 saction or transactions exceeds five hundred thousand dollars; or 41 (b) the proceeds of a class A, B or C felony, or of a crime in any 42 other jurisdiction that is or would be a class A, B or C felony under 43 the laws of this state, he or she conducts one or more such financial 44 transactions which in fact involve the proceeds of any such felony: 45 (i) With intent to: 46 (A) promote the carrying on of specified criminal conduct; or 47 (B) engage in conduct constituting a felony as set forth in section 48 [eighteen hundred two,] eighteen hundred three, eighteen hundred four, 49 eighteen hundred five, [eighteen hundred seven or eighteen hundred 50 eight] EIGHTEEN HUNDRED SIX of the tax law; or 51 (ii) Knowing that the transaction or transactions in whole or in part 52 are designed to: 53 (A) conceal or disguise the nature, the location, the source, the 54 ownership or the control of the proceeds of specified criminal conduct; 55 or 56 (B) avoid any transaction reporting requirement imposed by law; and S. 60--A 212 A. 160--A 1 (iii) The total value of the property involved in such financial tran- 2 saction or transactions exceeds one million dollars. 3 S 6. Subdivision 1 of section 470.21 of the penal law, as added by 4 section 18 of part A of chapter 1 of the laws of 2004, is amended to 5 read as follows: 6 1. Knowing that the property involved in one or more financial trans- 7 actions represents either the proceeds of an act of terrorism as defined 8 in subdivision one of section 490.05 of this part, or a monetary instru- 9 ment given, received or intended to be used to support a violation of 10 article four hundred ninety of this part: 11 (a) he or she conducts one or more such financial transactions which 12 in fact involve either the proceeds of an act of terrorism as defined in 13 subdivision one of section 490.05 of this part, or a monetary instrument 14 given, received or intended to be used to support a violation of article 15 four hundred ninety of this part: 16 (i) With intent to: 17 (A) promote the carrying on of criminal conduct; or 18 (B) engage in conduct constituting a felony as set forth in section 19 [eighteen hundred two,] eighteen hundred three, eighteen hundred four, 20 eighteen hundred five, [eighteen hundred seven or eighteen hundred 21 eight] OR EIGHTEEN HUNDRED SIX of the tax law; or 22 (ii) Knowing that the transaction or transactions in whole or in part 23 are designed to: 24 (A) conceal or disguise the nature, the location, the source, the 25 ownership or the control of either the proceeds of an act of terrorism 26 as defined in subdivision one of section 490.05 of this part, or a mone- 27 tary instrument given, received or intended to be used to support a 28 violation of article four hundred ninety of this part; or 29 (B) avoid any transaction reporting requirement imposed by law; and 30 (b) the total value of the property involved in such financial trans- 31 action or transactions exceeds one thousand dollars; or 32 S 7. Subdivision 1 of section 470.22 of the penal law, as added by 33 section 18 of part A of chapter 1 of the laws of 2004, is amended to 34 read as follows: 35 1. Knowing that the property involved in one or more financial trans- 36 actions represents either the proceeds of an act of terrorism as defined 37 in subdivision one of section 490.05 of this part, or a monetary instru- 38 ment given, received or intended to be used to support a violation of 39 article four hundred ninety of this part: 40 (a) he or she conducts one or more such financial transactions which 41 in fact involve either the proceeds of an act of terrorism as defined in 42 subdivision one of section 490.05 of this part, or a monetary instrument 43 given, received or intended to be used to support a violation of article 44 four hundred ninety of this part: 45 (i) With intent to: 46 (A) promote the carrying on of specified criminal conduct; or 47 (B) engage in conduct constituting a felony as set forth in section 48 [eighteen hundred two,] eighteen hundred three, eighteen hundred four, 49 eighteen hundred five, [eighteen hundred seven or eighteen hundred 50 eight] OR EIGHTEEN HUNDRED SIX of the tax law; or 51 (ii) Knowing that the transaction or transactions in whole or in part 52 are designed to: 53 (A) conceal or disguise the nature, the location, the source, the 54 ownership or the control of either the proceeds of an act of terrorism 55 as defined in subdivision one of section 490.05 of this part, or a mone- S. 60--A 213 A. 160--A 1 tary instrument given, received or intended to be used to support a 2 violation of article four hundred ninety of this part; or 3 (B) avoid any transaction reporting requirement imposed by law; and 4 (b) the total value of the property involved in such financial trans- 5 action or transactions exceeds five thousand dollars; or 6 S 8. Subdivision 1 of section 470.23 of the penal law, as added by 7 section 18 of part A of chapter 1 of the laws of 2004, is amended to 8 read as follows: 9 1. Knowing that the property involved in one or more financial trans- 10 actions represents either the proceeds of an act of terrorism as defined 11 in subdivision one of section 490.05 of this part, or a monetary instru- 12 ment given, received or intended to be used to support a violation of 13 article four hundred ninety of this part: 14 (a) he or she conducts one or more such financial transactions which 15 in fact involve either the proceeds of an act of terrorism as defined in 16 subdivision one of section 490.05 of this part, or a monetary instrument 17 given, received or intended to be used to support a violation of article 18 four hundred ninety of this part: 19 (i) With intent to: 20 (A) promote the carrying on of specified criminal conduct; or 21 (B) engage in conduct constituting a felony as set forth in section 22 [eighteen hundred two,] eighteen hundred three, eighteen hundred four, 23 eighteen hundred five, [eighteen hundred seven or eighteen hundred 24 eight] OR EIGHTEEN HUNDRED SIX of the tax law; or 25 (ii) Knowing that the transaction or transactions in whole or in part 26 are designed to: 27 (A) conceal or disguise the nature, the location, the source, the 28 ownership or the control of either the proceeds of an act of terrorism 29 as defined in subdivision one of section 490.05 of this part, or a mone- 30 tary instrument given, received or intended to be used to support a 31 violation of article four hundred ninety of this part; or 32 (B) avoid any transaction reporting requirement imposed by law; and 33 (b) the total value of the property involved in such financial trans- 34 action or transactions exceeds twenty-five thousand dollars; or 35 S 9. Subdivision 1 of section 470.24 of the penal law, as added by 36 section 18 of part A of chapter 1 of the laws of 2004, is amended to 37 read as follows: 38 1. Knowing that the property involved in one or more financial trans- 39 actions represents either the proceeds of an act of terrorism as defined 40 in subdivision one of section 490.05 of this part, or a monetary instru- 41 ment given, received or intended to be used to support a violation of 42 article four hundred ninety of this part: 43 (a) he or she conducts one or more financial transactions which in 44 fact involve either the proceeds of an act of terrorism as defined in 45 subdivision one of section 490.05 of this part, or a monetary instrument 46 given, received or intended to be used to support a violation of article 47 four hundred ninety of this part: 48 (i) With intent to: 49 (A) promote the carrying on of specified criminal conduct; or 50 (B) engage in conduct constituting a felony as set forth in section 51 [eighteen hundred two,] eighteen hundred three, eighteen hundred four, 52 eighteen hundred five, [eighteen hundred seven or eighteen hundred 53 eight] OR EIGHTEEN HUNDRED SIX of the tax law; or 54 (ii) Knowing that the transaction or transactions in whole or in part 55 are designed to: S. 60--A 214 A. 160--A 1 (A) conceal or disguise the nature, the location, the source, the 2 ownership or the control of the proceeds of either the proceeds of an 3 act of terrorism as defined in subdivision one of section 490.05 of this 4 part, or a monetary instrument given, received or intended to be used to 5 support a violation of article four hundred ninety of this part; or 6 (B) avoid any transaction reporting requirement imposed by law; and 7 (iii) The total value of the property involved in such financial tran- 8 saction or transactions exceeds seventy-five thousand dollars. 9 S 10. Subdivision 5 of section 480-a of the tax law, as amended by 10 chapter 760 of the laws of 1992 and as renumbered by chapter 629 of the 11 laws of 1996, is amended to read as follows: 12 5. Except for subdivision [(k)] (I) of section eighteen hundred four- 13 teen of this chapter, the criminal penalties set forth in article thir- 14 ty-seven of this chapter shall not apply to a violation of this section. 15 S 11. Paragraph 7 of subdivision (m) of section 1111 of the tax law, 16 as added by section 1 of part M1 of chapter 109 of the laws of 2006, is 17 amended to read as follows: 18 (7) Notwithstanding any foregoing provision of this subdivision or 19 other law to the contrary, this subdivision, subdivision (h) of section 20 eleven hundred nine OF THIS PART and subdivision [(t)] (N) of section 21 eighteen hundred seventeen of this chapter, section three hundred nine- 22 ty-two-i of the general business law and other provisions of law which 23 refer or relate to this subdivision shall apply only to (A) motor fuel 24 or diesel motor fuel sold for use directly and exclusively in the engine 25 of a motor vehicle and (B) motor fuel or diesel motor fuel, other than 26 water-white kerosene sold exclusively for heating purposes in containers 27 of no more than twenty gallons, sold by a retail gas station. For 28 purposes of this subdivision and such other provisions of law, "retail 29 gas station" shall mean a filling station where such fuel is stored 30 primarily for sale by delivery directly into the ordinary fuel tank 31 connected with the engine of a motor vehicle to be consumed in the oper- 32 ation of such motor vehicle or where such fuel is stored primarily for 33 sale by delivery directly into the ordinary fuel tank connected with the 34 engine of a vessel to be consumed in the operation of such vessel. The 35 commissioner is hereby authorized to require the use of certificates or 36 other documents, and procedures related thereto, to effect the purposes 37 of this subdivision; and any such certificate or other document so 38 required by the commissioner for a purchaser to tender to a vendor to 39 purchase such fuel subject to tax on the reduced base established by or 40 pursuant to this subdivision is hereby deemed to be an exemption certif- 41 icate as such term is used in subdivision (c) of section eleven hundred 42 thirty-two of this article and as if the provisions of such subdivision 43 (c) referred to such a certificate or document required pursuant to this 44 subdivision. 45 S 12. Paragraph 5 of subdivision (f) of section 1137 of the tax law, 46 as added by chapter 170 of the laws of 1994, is amended to read as 47 follows: 48 (5) (i) Where a person takes a credit pursuant to this subdivision in 49 an amount greater than allowed or under circumstances where the credit 50 is not authorized, or (ii) where a person takes a credit pursuant to 51 this subdivision at the time of filing a return for a quarterly or long- 52 er period and such person later becomes subject to a penalty imposed 53 under subparagraph (vi) of paragraph one of subdivision (a) or under 54 paragraph two of subdivision (a) of section eleven hundred forty-five of 55 this [article] PART or is later found guilty of a crime or offense under 56 section EIGHTEEN HUNDRED THREE, EIGHTEEN HUNDRED FOUR, EIGHTEEN HUNDRED S. 60--A 215 A. 160--A 1 FIVE, EIGHTEEN HUNDRED SIX, OR eighteen hundred seventeen of this chap- 2 ter, relating to the period for which the return was filed, the amount 3 of such credit taken in such greater amount, under such circumstances or 4 for such period shall be disallowed and the person shall be required to 5 pay, as tax, an amount equal to the credit so taken, at such time and in 6 such manner as prescribed by the commissioner; provided, however, that 7 such amount shall be paid and disposed of in the same manner as other 8 revenues from this article, and may be determined, assessed, collected 9 and enforced in the same manner as the tax imposed by this article. 10 S 13. Subdivision (c) of section 1800 of the tax law, as added by 11 chapter 65 of the laws of 1985, is amended to read as follows: 12 (c) As used in this article, the term "felony" and the term "misdemea- 13 nor" shall have the same meaning as they have in the penal law, and the 14 disposition of such offenses and the sentences imposed therefor shall be 15 as provided in such law except; (1) notwithstanding the provisions of 16 paragraph a of subdivision one of section 80.00 and paragraph (a) of 17 subdivision one of section 80.10 of the penal law relating to the fine 18 for a felony, the court may impose a fine not to exceed THE GREATER OF 19 DOUBLE THE AMOUNT OF THE UNDERPAID TAX LIABILITY RESULTING FROM THE 20 COMMISSION OF THE CRIME OR fifty thousand dollars, [except that] OR, in 21 the case of a corporation the fine may not exceed THE GREATER OF DOUBLE 22 THE AMOUNT OF THE UNDERPAID TAX LIABILITY RESULTING FROM THE COMMISSION 23 OF THE CRIME OR two hundred fifty thousand dollars and (2) notwithstand- 24 ing the provisions of subdivision one of section 80.05 and paragraph (b) 25 of subdivision one of section 80.10 of the penal law relating to the 26 fine for a class A misdemeanor, the court may impose a fine not to 27 exceed ten thousand dollars, except that in the case of a corporation 28 the fine may not exceed twenty thousand dollars. 29 S 14. The part heading of part 2 of article 37 of the tax law, as 30 added by chapter 65 of the laws of 1985, is amended to read as follows: 31 PART II-[INCOME, EARNINGS AND CORPORATE TAXES] TAX FRAUD ACTS AND 32 PENALTIES 33 S 15. Section 1801 of the tax law is REPEALED and a new section 1801 34 is added to read as follows: 35 S 1801. TAX FRAUD ACTS. (A) AS USED IN THIS ARTICLE, "TAX FRAUD ACT" 36 MEANS WILLFULLY ENGAGING IN AN ACT OR ACTS OR WILLFULLY CAUSING ANOTHER 37 TO ENGAGE IN AN ACT OR ACTS PURSUANT TO WHICH A PERSON: 38 (1) FAILS TO MAKE, RENDER, SIGN, CERTIFY, OR FILE ANY RETURN OR REPORT 39 REQUIRED UNDER THIS CHAPTER OR ANY REGULATION PROMULGATED UNDER THIS 40 CHAPTER WITHIN THE TIME REQUIRED BY OR UNDER THE PROVISIONS OF THIS 41 CHAPTER OR SUCH REGULATION; 42 (2) KNOWING THAT A RETURN, REPORT, STATEMENT OR OTHER DOCUMENT UNDER 43 THIS CHAPTER CONTAINS ANY FALSE OR FRAUDULENT INFORMATION, OR OMITS ANY 44 MATERIAL INFORMATION, FILES OR SUBMITS THAT RETURN, REPORT, STATEMENT OR 45 DOCUMENT WITH THE STATE OR ANY POLITICAL SUBDIVISION OF THE STATE, OR 46 WITH ANY PUBLIC OFFICE OR PUBLIC OFFICER OF THE STATE OR ANY POLITICAL 47 SUBDIVISION OF THE STATE; 48 (3) KNOWINGLY SUPPLIES OR SUBMITS FALSE OR FRAUDULENT INFORMATION IN 49 CONNECTION WITH ANY RETURN, AUDIT, INVESTIGATION, OR PROCEEDING OR FAILS 50 TO SUPPLY INFORMATION WITHIN THE TIME REQUIRED BY OR UNDER THE 51 PROVISIONS OF THIS CHAPTER OR ANY REGULATION PROMULGATED UNDER THIS 52 CHAPTER; 53 (4) ENGAGES IN ANY SCHEME TO DEFRAUD THE STATE OR A POLITICAL SUBDIVI- 54 SION OF THE STATE OR A GOVERNMENT INSTRUMENTALITY WITHIN THE STATE BY 55 FALSE OR FRAUDULENT PRETENSES, REPRESENTATIONS OR PROMISES IN CONNECTION S. 60--A 216 A. 160--A 1 WITH ANY TAX IMPOSED UNDER THIS CHAPTER OR ANY MATTER UNDER THIS CHAP- 2 TER; 3 (5) FAILS TO REMIT ANY TAX COLLECTED IN THE NAME OF THE STATE OR ON 4 BEHALF OF THE STATE OR ANY POLITICAL SUBDIVISION OF THE STATE WHEN SUCH 5 COLLECTION IS REQUIRED UNDER THIS CHAPTER; 6 (6) FAILS TO COLLECT ANY TAX REQUIRED TO BE COLLECTED UNDER ARTICLES 7 TWELVE-A, EIGHTEEN, TWENTY, TWENTY-TWO OR TWENTY-EIGHT OF THIS CHAPTER, 8 OR PURSUANT TO THE AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER; 9 (7) WITH INTENT TO EVADE ANY TAX FAILS TO PAY THAT TAX; OR 10 (8) ISSUES AN EXEMPTION CERTIFICATE, INTERDISTRIBUTOR SALES CERTIF- 11 ICATE, RESALE CERTIFICATE, OR ANY OTHER DOCUMENT CAPABLE OF EVIDENCING A 12 CLAIM THAT TAXES DO NOT APPLY TO A TRANSACTION, WHICH HE OR SHE DOES NOT 13 BELIEVE TO BE TRUE AND CORRECT AS TO ANY MATERIAL MATTER, WHICH OMITS 14 ANY MATERIAL INFORMATION, OR WHICH IS FALSE, FRAUDULENT, OR COUNTERFEIT. 15 (B) FOR PURPOSES OF THIS SUBDIVISION, "THIS CHAPTER" INCLUDES ANY 16 "RELATED STATUTE" OR ANY "RELATED INCOME OR EARNINGS TAX STATUTE", AS 17 DEFINED IN SECTION EIGHTEEN HUNDRED OF THIS ARTICLE. 18 S 16. Section 1802 of the tax law is REPEALED and a new section 1802 19 is added to read as follows: 20 S 1802. CRIMINAL TAX FRAUD IN THE FIFTH DEGREE. A PERSON COMMITS CRIM- 21 INAL TAX FRAUD IN THE FIFTH DEGREE WHEN HE OR SHE COMMITS A TAX FRAUD 22 ACT. CRIMINAL TAX FRAUD IN THE FIFTH DEGREE IS A CLASS A MISDEMEANOR. 23 S 17. Section 1803 of the tax law is REPEALED and a new section 1803 24 is added to read as follows: 25 S 1803. CRIMINAL TAX FRAUD IN THE FOURTH DEGREE. A PERSON COMMITS 26 CRIMINAL TAX FRAUD IN THE FOURTH DEGREE WHEN HE OR SHE COMMITS A TAX 27 FRAUD ACT OR ACTS AND, WITH THE INTENT TO EVADE ANY TAX DUE UNDER THIS 28 CHAPTER, OR TO DEFRAUD THE STATE OR ANY SUBDIVISION THEREOF, THE PERSON 29 PAYS THE STATE AND/OR A POLITICAL SUBDIVISION OF THE STATE (WHETHER BY 30 MEANS OF UNDERPAYMENT OR RECEIPT OF REFUND OR BOTH) IN EXCESS OF ONE 31 THOUSAND DOLLARS LESS THAN THE TAX LIABILITY THAT IS DUE. CRIMINAL TAX 32 FRAUD IN THE FOURTH DEGREE IS A CLASS E FELONY. 33 S 18. Section 1804 of the tax law is REPEALED and a new section 1804 34 is added to read as follows: 35 S 1804. CRIMINAL TAX FRAUD IN THE THIRD DEGREE. A PERSON COMMITS CRIM- 36 INAL TAX FRAUD IN THE THIRD DEGREE WHEN HE OR SHE COMMITS A TAX FRAUD 37 ACT OR ACTS AND, WITH THE INTENT TO EVADE ANY TAX DUE UNDER THIS CHAP- 38 TER, OR TO DEFRAUD THE STATE OR ANY POLITICAL SUBDIVISION OF THE STATE, 39 THE PERSON PAYS THE STATE AND/OR A POLITICAL SUBDIVISION OF THE STATE 40 (WHETHER BY MEANS OF UNDERPAYMENT OR RECEIPT OF REFUND OR BOTH) IN 41 EXCESS OF THREE THOUSAND DOLLARS LESS THAN THE TAX LIABILITY THAT IS 42 DUE. CRIMINAL TAX FRAUD IN THE THIRD DEGREE IS A CLASS D FELONY. 43 S 19. Section 1805 of the tax law is REPEALED and a new section 1805 44 is added to read as follows: 45 S 1805. CRIMINAL TAX FRAUD IN THE SECOND DEGREE. A PERSON COMMITS 46 CRIMINAL TAX FRAUD IN THE SECOND DEGREE WHEN HE OR SHE COMMITS A TAX 47 FRAUD ACT OR ACTS AND, WITH THE INTENT TO EVADE ANY TAX DUE UNDER THIS 48 CHAPTER, OR TO DEFRAUD THE STATE OR ANY SUBDIVISION OF THE STATE, THE 49 PERSON PAYS THE STATE AND/OR A POLITICAL SUBDIVISION OF THE STATE 50 (WHETHER BY MEANS OF UNDERPAYMENT OR RECEIPT OF REFUND OR BOTH) IN 51 EXCESS OF FIFTY THOUSAND DOLLARS LESS THAN THE TAX LIABILITY THAT IS 52 DUE. CRIMINAL TAX FRAUD IN THE SECOND DEGREE IS A CLASS C FELONY. 53 S 20. Section 1806 of the tax law is REPEALED and a new section 1806 54 is added to read as follows: 55 S 1806. CRIMINAL TAX FRAUD IN THE FIRST DEGREE. A PERSON COMMITS CRIM- 56 INAL TAX FRAUD IN THE FIRST DEGREE WHEN HE OR SHE COMMITS A TAX FRAUD S. 60--A 217 A. 160--A 1 ACT OR ACTS AND, WITH THE INTENT TO EVADE ANY TAX DUE UNDER THIS CHAP- 2 TER, OR TO DEFRAUD THE STATE OR ANY SUBDIVISION OF THE STATE, THE PERSON 3 PAYS THE STATE AND/OR A POLITICAL SUBDIVISION OF THE STATE (WHETHER BY 4 MEANS OF UNDERPAYMENT OR RECEIPT OF REFUND OR BOTH) IN EXCESS OF ONE 5 MILLION DOLLARS LESS THAN THE TAX LIABILITY THAT IS DUE. CRIMINAL TAX 6 FRAUD IN THE FIRST DEGREE IS A CLASS B FELONY. 7 S 21. Section 1807 of the tax law is REPEALED and a new section 1807 8 is added to read as follows: 9 S 1807. AGGREGATION. FOR PURPOSES OF THIS ARTICLE, THE PAYMENTS DUE 10 AND NOT PAID UNDER ARTICLE ONE OF THIS CHAPTER PURSUANT TO A COMMON 11 SCHEME OR PLAN, OR DUE AND NOT PAID CONTINUOUSLY OVER CONSECUTIVE PERI- 12 ODS MAY BE CHARGED AS A CONTINUING CRIME IN A SINGLE COUNT, AND THE 13 AMOUNT OF UNDERPAID TAX LIABILITY MAY BE AGGREGATED OVER ALL TAX PERIODS 14 ENCOMPASSED BY THE SCHEME TO DEFRAUD OR OVER THE CONSECUTIVE YEARS OF 15 UNDERPAYMENT. 16 S 22. Section 1808 of the tax law is REPEALED. 17 S 23. Sections 1809 and 1810 of the tax law are REPEALED. 18 S 24. Section 1811 of the tax law, as amended by section 116, subdivi- 19 sions (a) and (b) as separately amended by section 145 of chapter 190 of 20 the laws of 1990, is amended to read as follows: 21 S 1811. Estate, gift and transfer taxes.[--(a) Failure to file a 22 return or report, or pay tax.--Any person required under article twen- 23 ty-six, twenty-six-A or twenty-six-B of this chapter to pay tax, or make 24 a return or report, who, with intent to evade tax or any requirement of 25 such articles, fails to pay such tax or make such return or report, at 26 the time or times so required, shall be guilty of a misdemeanor. 27 (b) Fraudulent returns, reports, statements or other documents.--(1) 28 Any person who, with intent to evade the tax or any requirement of arti- 29 cle twenty-six, twenty-six-A or twenty-six-B of this chapter or any 30 lawful requirement of the commissioner of taxation and finance there- 31 under, makes and subscribes any return, report, statement or other docu- 32 ment which is required to be filed with or furnished to the commissioner 33 or to any person, pursuant to or under the provisions of such articles, 34 which he does not believe to be true and correct as to every material 35 matter shall be guilty of a misdemeanor. 36 (2) Any person who, with intent to evade the tax or any requirement of 37 article twenty-six, twenty-six-A or twenty-six-B of this chapter or any 38 lawful requirement of the commissioner of taxation and finance there- 39 under, who delivers or discloses to the commissioner or to any person, 40 pursuant to or under the provisions of such articles, any list, return, 41 report, account, statement or other document known by him to be fraudu- 42 lent or to be false as to any material matter shall be guilty of a 43 misdemeanor. 44 (3) For purposes of this section, the omission by any person of any 45 material matter with intent to deceive shall constitute the delivery or 46 disclosure of a document known by him to be fraudulent or to be false as 47 to any material matter. 48 (c)] Wrongful entry into safe deposit box.--Any person who enters a 49 safe deposit box of a decedent, or a box standing in the joint names of 50 such a decedent and one or more persons, with knowledge of the death of 51 the lessee of such box, which entry results in an evasion of the tax 52 imposed by article twenty-six of this chapter shall be guilty of a 53 misdemeanor. 54 S 25. Section 1812 of the tax law, as added by chapter 65 of the laws 55 of 1985, paragraphs 4 and 5 of subdivision (c) as added and subdivision 56 (d) as amended by chapter 261 of the laws of 1988 and subdivisions (g) S. 60--A 218 A. 160--A 1 and (h) as added by chapter 276 of the laws of 1986, is amended to read 2 as follows: 3 S 1812. Motor fuel taxes.--(a) Attempt to evade or defeat tax.--Any 4 person who willfully attempts in any manner to evade or defeat any tax 5 imposed by article twelve-A of this chapter or the payment thereof 6 shall, in addition to other penalties provided by law, be guilty of a 7 class E felony. 8 (b) [Willful failure to file a return or report, or pay tax.--Any 9 person required under article twelve-A of this chapter to pay tax, or 10 make a return or report, who willfully fails to pay such tax or make 11 such return or report, at the time or times so required, shall be guilty 12 of a misdemeanor. 13 (c) Fraudulent returns, reports, statements or other documents.--(1) 14 Any person who willfully makes and subscribes any return, report, state- 15 ment or other document which is required to be filed with or furnished 16 to the tax commission or to any person, pursuant to the provisions of 17 article twelve-A of this chapter, which he does not believe to be true 18 and correct as to every material matter shall be guilty of a class E 19 felony. 20 (2) Any person who willfully delivers or discloses to the tax commis- 21 sion or to any person, pursuant to the provisions of article twelve-A of 22 this chapter, any list, return, report, account, statement or other 23 document known by him to be fraudulent or to be false as to any material 24 matter shall be guilty of a misdemeanor. 25 (3) For purposes of this section, the omission by any person of any 26 material matter with intent to deceive shall constitute the delivery or 27 disclosure of a document known by him to be fraudulent or to be false as 28 to any material matter. 29 (4) Any person who willfully issues an exempt transaction certificate 30 (or similar document which has been prescribed by the commissioner of 31 taxation and finance) or interdistributor sale certificate in order to 32 claim an exemption from the taxes imposed on Diesel motor fuel by arti- 33 cle twelve-A of this chapter which he does not believe to be true and 34 correct as to any material matter shall, in addition to any other penal- 35 ty provided by law, be guilty of a misdemeanor. 36 (5)] Any person who willfully accepts an exempt transaction certif- 37 icate (or similar document which has been prescribed by the commissioner 38 [of taxation and finance]) or interdistributor sale certificate with 39 respect to claiming exemption from the taxes imposed on Diesel motor 40 fuel by article twelve-A of this chapter which he does not believe to be 41 true and correct as to any material matter shall, in addition to any 42 other penalty provided by law, be guilty of a misdemeanor. 43 [(d)] (C) Any owner of a filling station who shall willfully and know- 44 ingly have in his custody, possession or under his control any motor 45 fuel or Diesel motor fuel on which (1) the taxes imposed by or pursuant 46 to the authority of such article have not been assumed or paid by a 47 distributor registered as such under such article or (2) the taxes 48 imposed by or pursuant to the authority of such article have not been 49 included in the cost to him of such fuel where such taxes were required 50 to have been passed through to him and included in the cost to him of 51 such fuel, shall in either case, be guilty of a class E felony. For 52 purposes of this subdivision, such owner shall willfully and knowingly 53 have in his custody, possession or under his control any motor fuel or 54 Diesel motor fuel on which such taxes have not been assumed or paid by a 55 distributor registered as such where such owner has knowledge of the 56 requirement that such taxes be paid and where, to his knowledge, such S. 60--A 219 A. 160--A 1 taxes have not been assumed or paid by a registered distributor on such 2 motor fuel or Diesel motor fuel. Such owner shall willfully and knowing- 3 ly have in his custody, possession or under his control any motor fuel 4 or Diesel motor fuel on which such taxes are required to have been 5 passed through to him and have not been included in his cost where such 6 owner has knowledge of the requirement that such taxes be passed through 7 and where to his knowledge such taxes have not been so included. 8 [(e)] (D) Any willful act or omission, other than those described in 9 subdivision (a), (b), OR (c) [or (d)] of this section, by any person 10 which constitutes a violation of any provision of article twelve-A of 11 this chapter shall constitute a misdemeanor. 12 [(f)] (E) The provisions of this section shall apply for purposes of 13 the tax imposed pursuant to the authority of section two hundred eight- 14 y-four-b of this chapter. 15 [(g) Any person who, being duly subpoenaed, pursuant to section one 16 hundred seventy-four of this chapter or the provisions of the civil 17 practice law and rules, in connection with a matter arising under arti- 18 cle twelve-A of this chapter, to attend as a witness or to produce 19 books, accounts, records, memoranda, documents or other papers who (i) 20 fails or refuses to attend without lawful excuse, (ii) refuses to be 21 sworn, (iii) refuses to answer any material and proper question, or (iv) 22 refuses, after reasonable notice, to produce books, accounts, records, 23 memoranda, documents or other papers in his possession or under his 24 control which constitute material and proper evidence shall be guilty of 25 a misdemeanor. 26 (h)] (F) Any person who willfully makes a manifest required by section 27 two hundred eighty-six-b of this chapter which he does not believe to be 28 true and correct as to every material matter or who willfully produces 29 any manifest for inspection as required under section two hundred eight- 30 y-six-b of this chapter which is known to be fraudulent or to be false 31 as to any material matter shall be guilty of a class E felony. 32 S 26. Section 1812-f of the tax law, as added by chapter 190 of the 33 laws of 1990, is amended to read as follows: 34 S 1812-f. Article thirteen-A tax. (a) [Attempt to evade or defeat tax. 35 Any person who willfully attempts in any manner to evade or defeat any 36 tax imposed by article thirteen-A of this chapter or the payment thereof 37 shall be guilty of a misdemeanor; provided, however, that if the tax 38 liability evaded or defeated as a result of such conduct is equal to or 39 greater than one thousand dollars, such person shall be guilty of class 40 E felony. 41 (b) Willful failure to file a return or report, or pay tax. Any person 42 required under article thirteen-A of this chapter to pay tax, or make a 43 return or report, who willfully fails to pay such tax or make such 44 return or report, at the time or times so required, shall be guilty of a 45 misdemeanor. 46 (c) Fraudulent returns, reports, statements or other documents. (1) 47 Any person who willfully makes and subscribes any return, report, state- 48 ment or other document which is required to be filed with or furnished 49 to the commissioner of taxation and finance or to any person, pursuant 50 to the provisions of article thirteen-A of this chapter, which he does 51 not believe to be true and correct as to every material matter shall be 52 guilty of a misdemeanor. Provided, however, where such person substan- 53 tially understates on such return, report, statement, or other document 54 his tax liability under such article, such person shall be guilty of a 55 class E felony. For purposes of this subdivision, the term "substantial- 56 ly understates" refers to the excess amount of the tax required to be S. 60--A 220 A. 160--A 1 shown on the return or report for the taxable period over the amount of 2 the tax imposed which is shown on the return, report, statement, or 3 other document, provided that the excess is one thousand dollars or 4 more, and provided that the taxpayer, acting without reasonable ground 5 for believing that his conduct is lawful, intended to evade at least the 6 amount of such excess. 7 (2) Any person who willfully delivers or discloses to the commissioner 8 of taxation and finance or to any person, pursuant to the provisions of 9 article thirteen-A of this chapter, any list, return, report, account, 10 statement or other document known by him to be fraudulent or to be false 11 as to any material matter shall be guilty of a misdemeanor. 12 (3) For purposes of this section, the omission by any person of any 13 material matter with intent to deceive shall constitute the delivery or 14 disclosure of a document known by him to be fraudulent or to be false as 15 to any material matter. 16 (4) Any person who willfully issues an exempt transaction certificate 17 (or similar document which has been prescribed by the commissioner of 18 taxation and finance) or interdistributor sale certificate in order to 19 claim an exemption from taxes imposed with respect to diesel motor fuel 20 or residual petroleum product by article thirteen-A of this chapter 21 which he does not believe to be true and correct as to any material 22 matter shall be guilty of a misdemeanor. 23 (5)] Any person who willfully accepts an exempt transaction certif- 24 icate (or similar document which has been prescribed by the commissioner 25 of taxation and finance) or interdistributor sale certificate with 26 respect to claiming exemption from the taxes imposed with respect to 27 diesel motor fuel or residual petroleum product by article thirteen-A of 28 this chapter which he does not believe to be true and correct as to any 29 material matter shall be guilty of a misdemeanor. 30 [(d)] (B) Any willful act or omission, other than those described in 31 SECTION EIGHTEEN HUNDRED ONE OF THIS ARTICLE OR subdivision (a)[, (b)] 32 or (c) of this section, by any person which constitutes a violation of 33 any provision of article thirteen-A of this chapter shall constitute a 34 misdemeanor. 35 [(e) Any person who duly is subpoenaed, pursuant to section one 36 hundred seventy-four of this chapter or the provisions of the civil 37 practice law and rules, in connection with a matter arising under arti- 38 cle thirteen-A of this chapter, to attend as a witness or to produce 39 books, accounts, records, memoranda, documents or other papers and who 40 (i) fails or refuses to attend without lawful excuse, (ii) refuses to be 41 sworn, (iii) refuses to answer any material and proper question, or (iv) 42 refuses, after reasonable notice, to produce books, accounts, records, 43 memoranda, documents or other papers in his possession or under his 44 control which constitute material and proper evidence shall be guilty of 45 a misdemeanor. 46 (f)] (C) Any person who willfully makes a movement tracking document 47 required pursuant to subdivision (b) of section three hundred fifteen of 48 this chapter, which he does not believe to be true and correct as to 49 every material matter or who willfully produces any such document for 50 inspection as required under subdivision (b) of section three hundred 51 fifteen of this chapter which he knows to be fraudulent or to be false 52 as to any material matter shall be guilty of a misdemeanor; provided, 53 however, that if the tax liability under article thirteen-A of this 54 chapter with respect to the product being transported, is equal to or 55 greater than one thousand dollars, such person shall be guilty of a 56 class E felony. S. 60--A 221 A. 160--A 1 S 27. Section 1813 of the tax law, as added by chapter 65 of the laws 2 of 1985, subdivisions (h), (i) and (j) as added by chapter 508 of the 3 laws of 1993, is amended to read as follows: 4 S 1813. Alcoholic beverage tax.--(a) [Attempt to evade or defeat tax.- 5 -Any person who willfully attempts in any manner to evade or defeat any 6 tax imposed by article eighteen of this chapter or the payment thereof 7 shall, in addition to other penalties provided by law, be guilty of a 8 misdemeanor. 9 (b) Willful failure to file a return or report, or pay tax.--Any 10 person required under article eighteen of this chapter to pay or make a 11 return or report, who willfully fails to pay such tax or make such 12 return or report at the time or times so required, shall be guilty of a 13 misdemeanor. 14 (c) Fraudulent returns, reports, statements or other documents.--(1) 15 Any person who willfully makes and subscribes any return, report, state- 16 ment or other document which is required to be filed with or furnished 17 to the tax commission or to any person, pursuant to article eighteen of 18 this chapter, which he does not believe to be true and correct as to 19 every material matter shall be guilty of a class E felony. 20 (2) Any person who willfully delivers or discloses to the tax commis- 21 sion or to any person, pursuant to article eighteen of this chapter, any 22 list, return, report, account, statement or other document known by him 23 to be fraudulent or to be false as to any material matter shall be guil- 24 ty of a misdemeanor. 25 (3) For purposes of this section, the omission by any person of any 26 material matter with intent to deceive shall constitute the delivery or 27 disclosure of a document known by him to be fraudulent or to be false as 28 to any material matter. 29 (d)] Unlawful use of stamps.--Any person who shall counterfeit stamps 30 prescribed by section four hundred thirty-eight of this chapter or who 31 shall willfully remove or alter or knowingly permit to be removed or 32 altered, the cancellation or defacing marks required to be placed upon 33 any stamp under provisions of article eighteen of this chapter with 34 intent to use such stamp, or who shall willfully open any container of 35 alcoholic beverages without first destroying the stamp affixed thereto 36 or who shall knowingly or willfully buy, prepare for use, use, have in 37 his possession or suffer to be used any washed, restored or counterfeit 38 stamp shall be guilty of a misdemeanor. 39 [(e)] (B) Unlawful use of alcoholic beverages.--Any person who shall 40 willfully sell or use any alcoholic beverages upon which tax has not 41 been paid by the affixation of stamps as prescribed pursuant to section 42 four hundred thirty-eight of this chapter shall be guilty of a misdemea- 43 nor. 44 [(f)] (C) Any willful act or omission, other than those described in 45 SECTION EIGHTEEN HUNDRED ONE OF THIS ARTICLE OR subdivision (a)[,] OR 46 (b)[, (c), (d) or (e)] of this section, by any person which constitutes 47 a violation of any provision of article eighteen of this chapter shall 48 constitute a misdemeanor. 49 [(g)] (D) The provisions of this section shall apply for purposes of 50 any tax imposed pursuant to the authority of section four hundred 51 forty-five of this chapter. 52 [(h)] (E) Person not registered as a distributor. (1) Any person 53 required to be registered as a distributor pursuant to the provisions of 54 article eighteen of this chapter who, while not so registered, knowingly 55 imports or causes to be imported into the state, for sale or use there- 56 in, any liquors or, who, except in accordance with clause (i) or (ii) of S. 60--A 222 A. 160--A 1 paragraph (b) of subdivision four of section four hundred twenty of this 2 chapter, knowingly produces, distills, manufactures, compounds, mixes or 3 ferments in this state any such liquors for sale, or who, as a purchaser 4 of a warehouse receipt, knowingly causes liquors covered by such receipt 5 to be removed from a warehouse in this state, shall be guilty of a class 6 A misdemeanor. Provided, however, that any person who has twice been 7 convicted under this section within the preceding five years, shall be 8 guilty of a class E felony for any subsequent violation of this para- 9 graph. 10 (2) Any person who, while not registered as a distributor pursuant to 11 the provisions of article eighteen of this chapter, knowingly and inten- 12 tionally imports or causes to be imported into this state, for sale or 13 use therein, more than three hundred sixty liters of liquors into this 14 state in a one-year period or, except in accordance with clause (i) or 15 (ii) of paragraph (b) of subdivision four of section four hundred twenty 16 of this chapter, knowingly and intentionally produces, distills, manu- 17 factures, compounds, mixes or ferments for sale more than three hundred 18 sixty liters of such liquors within this state in a one-year period, or, 19 as a purchaser of a warehouse receipt, knowingly and intentionally caus- 20 es more than three hundred sixty liters of liquors in a one-year period 21 to be removed from a warehouse in this state, shall be guilty of a class 22 E felony. 23 (3) For purposes of this subdivision, it shall be presumed that the 24 importation or the causing to be imported into this state or the 25 production, distillation, manufacture, compounding, mixing or fermenting 26 in this state of more than ninety liters of such liquors by any person 27 in a one-year period is for purposes of sale. Such presumption may be 28 rebutted by the introduction of substantial evidence to the contrary. 29 [(i)] (F) Person not registered as a distributor for city purposes. 30 (1) Any person required to be registered as a distributor for city 31 purposes pursuant to the provisions of section four hundred forty-five 32 of article eighteen of this chapter who, while not so registered, know- 33 ingly imports or causes to be imported into such city, for sale or use 34 therein, any liquors or, who, except in accordance with clause (i) or 35 (ii) of paragraph (b) of subdivision four of section four hundred twenty 36 of this chapter as incorporated into such section four hundred forty- 37 five, knowingly produces, distills, manufactures, compounds, mixes or 38 ferments in such city any such liquors for sale, or who, as a purchaser 39 of a warehouse receipt, causes liquors covered by such receipt to be 40 removed from a warehouse in this state, shall be guilty of a class A 41 misdemeanor. Provided, however, that any person who has twice been 42 convicted under this section within the preceding five years shall be 43 guilty of a class E felony for any subsequent violation of this para- 44 graph. 45 (2) Any person who, while not registered as a distributor for city 46 purposes pursuant to the provisions of section four hundred forty-five 47 of article eighteen of this chapter, knowingly and intentionally imports 48 or causes to be imported into such city, for sale or use therein, more 49 than three hundred sixty liters of liquors into such city in a one-year 50 period or, except in accordance with clause (i) or (ii) of paragraph (b) 51 of subdivision four of section four hundred twenty of this chapter as 52 incorporated into such section four hundred forty-five, knowingly and 53 intentionally produces, distills, manufactures, compounds, mixes or 54 ferments for sale more than three hundred sixty liters of such liquors 55 within such city in a one-year period, or, as a purchaser of a warehouse 56 receipt, knowingly and intentionally causes more than three hundred S. 60--A 223 A. 160--A 1 sixty liters of liquors in a one-year period to be removed from a ware- 2 house in this [store] STATE, shall be guilty of a class E felony. 3 (3) For purposes of this subdivision, it shall be presumed that the 4 importation or the causing to be imported into such city or the 5 production, distillation, manufacture, compounding, mixing or fermenting 6 in such city of more than ninety liters of liquors by any person in a 7 one-year period is for purposes of sale. Such presumption may be 8 rebutted by the introduction of substantial evidence to the contrary. 9 [(j)] (G) Any person, other than the distributor registered under 10 article eighteen of this chapter which imported or caused the liquors to 11 be imported into this state, who shall willfully and knowingly have in 12 his custody, possession or under his control liquors with respect to 13 which the taxes imposed by or pursuant to the authority of article eigh- 14 teen of this chapter have not been assumed or paid by a distributor 15 registered as such under such article, shall be guilty of a class B 16 misdemeanor; if such person shall willfully and knowingly have more than 17 ninety liters of such liquors in his custody or possession or under his 18 control, such person shall be guilty of a class A misdemeanor; or if 19 such person shall knowingly and intentionally have more than three 20 hundred sixty liters of such liquors in his custody or possession or 21 under his control, such person shall be guilty of a class E felony. For 22 purposes of this subdivision, such person shall willfully and knowingly 23 have in his custody, possession or under his control any liquors with 24 respect to which such taxes have not been assumed or paid by a distribu- 25 tor registered as such where such person has knowledge of the require- 26 ment of such taxes and where, to his knowledge, such taxes have not been 27 assumed or paid by a registered distributor with respect to such 28 liquors. 29 S 28. Section 1814 of the tax law, as added by chapter 65 of the laws 30 of 1985, the section heading and subdivisions (c), (g) and (h) as 31 amended and subdivision (j) as added by chapter 61 of the laws of 1989, 32 paragraph 2 of subdivision (a) and paragraph 1 of subdivision (e) as 33 amended by chapter 508 of the laws of 2004, subdivisions (d) and (e) as 34 amended by chapter 262 of the laws of 2000 and subdivision (k) as added 35 by chapter 190 of the laws of 1990, is amended to read as follows: 36 S 1814. Cigarette and tobacco products tax.--(a) [Attempt to evade or 37 defeat tax.--(1) Any person who willfully attempts in any manner to 38 evade or defeat any tax imposed by article twenty of this chapter or the 39 payment thereof shall, in addition to other penalties provided by law, 40 be guilty of a misdemeanor. 41 (2)] Any person who willfully attempts in any manner to evade or 42 defeat the taxes imposed by article twenty of this chapter or payment 43 thereof on (i) ten thousand cigarettes or more (ii) twenty-two thousand 44 cigars or more, or (iii) four hundred forty pounds of tobacco or more or 45 has previously been convicted two or more times of a violation of para- 46 graph one of this subdivision shall be guilty of a class E felony. 47 (b) [Willful failure to file a return or report, or pay tax.--Any 48 person required under article twenty of this chapter to pay or make a 49 return or report, who willfully fails to pay such tax or make such 50 return or report, at the time or times so required, shall be guilty of a 51 misdemeanor. 52 (c) Fraudulent returns, reports, statements or other documents.--(1) 53 Any person who willfully makes and subscribes any return, report, state- 54 ment or other document which is required to be filed with or furnished 55 to the commissioner of taxation and finance or to any person, pursuant 56 to article twenty of this chapter, which he does not believe to be true S. 60--A 224 A. 160--A 1 and correct as to every material matter shall be guilty of a misdemea- 2 nor. 3 (2) Any person who willfully delivers or discloses to the commissioner 4 of taxation and finance or to any person, pursuant to article twenty of 5 this chapter, any list, return, report, account, statement or other 6 document known by him to be fraudulent or to be false as to any material 7 matter shall be guilty of a misdemeanor. 8 (3) For purposes of this section, the omission by any person of any 9 material matter with intent to deceive shall constitute the delivery or 10 disclosure of a document known by him to be fraudulent or to be false as 11 to any material matter. 12 (d)] Any person, other than an agent licensed by the commissioner, who 13 possesses or transports for the purpose of sale any unstamped or unlaw- 14 fully stamped packages of cigarettes subject to tax imposed by section 15 four hundred seventy-one of this chapter, or who sells or offers for 16 sale unstamped or unlawfully stamped packages of cigarettes in violation 17 of the provisions of article twenty of this chapter shall be guilty of a 18 misdemeanor. Any person who violates the provisions of this subdivision 19 after having previously been convicted of a violation of this subdivi- 20 sion within the preceding five years shall be guilty of a class E felo- 21 ny. 22 [(e)] (C) (1) Any person, other than an agent licensed by the commis- 23 sioner, who willfully possesses or transports for the purpose of sale 24 ten thousand or more cigarettes subject to the tax imposed by section 25 four hundred seventy-one of this chapter in any unstamped or unlawfully 26 stamped packages or who willfully sells or offers for sale ten thousand 27 or more cigarettes in any unstamped or unlawfully stamped packages in 28 violation of article twenty of this chapter shall be guilty of a class E 29 felony. 30 (2) Any person, other than an agent licensed by the commissioner, who 31 willfully possesses or transports for the purpose of sale thirty thou- 32 sand or more cigarettes subject to the tax imposed by section four 33 hundred seventy-one of this chapter in any unstamped or unlawfully 34 stamped packages or who willfully sells or offers for sale thirty thou- 35 sand or more cigarettes in any unstamped or unlawfully stamped packages 36 in violation of article twenty of this chapter shall be guilty of a 37 class D felony. 38 [(f)] (D) For the purposes of this section, the possession or trans- 39 portation within this state by any person, other than an agent, at any 40 one time of five thousand or more cigarettes in unstamped or unlawfully 41 stamped packages shall be presumptive evidence that such cigarettes are 42 possessed or transported for the purpose of sale and are subject to the 43 tax imposed by section four hundred seventy-one of this chapter. With 44 respect to such possession or transportation any provisions of article 45 twenty of this chapter providing for a time period during which a use 46 tax imposed by such article may be paid on unstamped cigarettes or 47 unlawfully or improperly stamped cigarettes or during which such ciga- 48 rettes may be returned to an agent shall not apply. The possession with- 49 in this state of more than four hundred cigarettes in unstamped or 50 unlawfully stamped packages by any person other than an agent at any one 51 time shall be presumptive evidence that such cigarettes are subject to 52 tax as provided by article twenty of this chapter. 53 [(g)] (E) Nothing in this section shall apply to common or contract 54 carriers or warehousemen while engaged in lawfully transporting or stor- 55 ing unstamped packages of cigarettes as merchandise, or lawfully trans- 56 porting or storing tobacco products, nor to any employee of such carrier S. 60--A 225 A. 160--A 1 or warehouseman acting within the scope of his employment, nor to public 2 officers or employees in the performance of their official duties 3 requiring possession or control of unstamped or unlawfully stamped pack- 4 ages of cigarettes or possession or control of tobacco products, nor to 5 temporary incidental possession by employees or agents of persons 6 lawfully entitled to possession, nor to persons whose possession is for 7 the purpose of aiding police officers in performing their duties. 8 [(h)] (F) Any willful act or omission, other than those described in 9 SECTION EIGHTEEN HUNDRED ONE OF THIS ARTICLE OR subdivision (a), (b), 10 (c), (d), (e), [(f),] (g), (H) OR (i) [or (j)] of this section, by any 11 person which constitutes a violation of any provision of article twenty 12 of this chapter shall constitute a misdemeanor. 13 [(i)] (G) Any person who falsely or fraudulently makes, alters or 14 counterfeits any stamp prescribed by the tax commission under the 15 provisions of article twenty of this chapter, or causes or procures to 16 be falsely or fraudulently made, altered or counterfeited any such 17 stamp, or knowingly and willfully utters, purchases, passes or tenders 18 as true any such false, altered or counterfeited stamp, or knowingly and 19 willfully possesses any cigarettes in packages bearing any such false, 20 altered or counterfeited stamp, and any person who knowingly and will- 21 fully makes, causes to be made, purchases or receives any device for 22 forging or counterfeiting any stamp, prescribed by the tax commission 23 under the provisions of article twenty of this chapter, or who knowingly 24 and willfully possesses any such device, shall be guilty of a class E 25 felony. For the purposes of this subdivision, the words "stamp 26 prescribed by the tax commission" shall include a stamp, impression or 27 imprint made by a metering machine, the design of which has been 28 approved by such commission. 29 [(j)] (H) (1) Any dealer, other than a distributor appointed by the 30 commissioner of taxation and finance under article twenty of this chap- 31 ter, who shall knowingly transport or have in his custody, possession or 32 under his control more than ten pounds of tobacco or more than five 33 hundred cigars upon which the taxes imposed by article twenty of this 34 chapter have not been assumed or paid by a distributor appointed by the 35 commissioner of taxation and finance under article twenty of this chap- 36 ter, or other person treated as a distributor pursuant to section four 37 hundred seventy-one-d of this chapter, shall be guilty of a misdemeanor 38 punishable by a fine of not more than five thousand dollars or by a term 39 of imprisonment not to exceed thirty days. 40 (2) Any person, other than a dealer or a distributor appointed by the 41 commissioner [of taxation and finance] under article twenty of this 42 chapter, who shall knowingly transport or have in his custody, 43 possession or under his control more than fifteen pounds of tobacco or 44 more than seven hundred fifty cigars upon which the taxes imposed by 45 article twenty of this chapter have not been assumed or paid by a 46 distributor appointed by the commissioner [of taxation and finance] 47 under article twenty of this chapter, or other person treated as a 48 distributor pursuant to section four hundred seventy-one-d of this chap- 49 ter shall be guilty of a misdemeanor punishable by a fine of not more 50 than five thousand dollars or by a term of imprisonment not to exceed 51 thirty days. 52 (3) Any person, other than a distributor appointed by the commissioner 53 [of taxation and finance] under article twenty of this chapter, who 54 shall knowingly transport or have in his custody, possession or under 55 his control twenty-five hundred or more cigars or fifty or more pounds 56 of tobacco upon which the taxes imposed by article twenty of this chap- S. 60--A 226 A. 160--A 1 ter have not been assumed or paid by a distributor appointed by the 2 commissioner [of taxation and finance] under article twenty of this 3 chapter, or other person treated as a distributor pursuant to section 4 four hundred seventy-one-d of this chapter shall be guilty of a misde- 5 meanor. Provided further, that any person who has twice been convicted 6 under this subdivision shall be guilty of a class E felony for any 7 subsequent violation of this section, regardless of the amount of tobac- 8 co products involved in such violation. 9 (4) For purposes of this subdivision, such person shall knowingly 10 transport or have in his custody, possession or under his control tobac- 11 co or cigars on which such taxes have not been assumed or paid by a 12 distributor appointed by the commissioner [of taxation and finance] 13 where such person has knowledge of the requirement of the tax on tobacco 14 products and, where to his knowledge, such taxes have not been assumed 15 or paid on such tobacco products by a distributor appointed by the 16 commissioner of taxation and finance. 17 [(k)] (I) Any person who falsely or fraudulently makes, alters or 18 counterfeits a registration certificate or sticker required under the 19 provisions of section four hundred eighty-a of this chapter, or causes 20 or procures to be falsely or fraudulently made, altered or counterfeited 21 any such registration certificate or sticker, or knowingly and willfully 22 utters, purchases, passes or tenders as true any such false, altered or 23 counterfeited registration certificate or sticker, and any person who 24 knowingly and willfully makes, causes to be made, purchases or receives 25 any device for forging or counterfeiting any registration certificate or 26 sticker required under the provisions of such section, or who knowingly 27 and willfully possesses any such device, shall be guilty of a class B 28 misdemeanor. 29 S 29. Section 1815 of the tax law, as amended by chapter 170 of the 30 laws of 1994, clause (i) of subparagraph (A) of paragraph 1 of subdivi- 31 sion (a) as amended by section 10, subparagraph (B) of paragraph 1 of 32 subdivision (a) as amended by section 11 and subparagraph (C) of para- 33 graph 1 of subdivision (a) as amended by section 12 of part E of chapter 34 60 of the laws of 2007, is amended to read as follows: 35 S 1815. Highway use and fuel use taxes. - (a) Violations. (1) It shall 36 be unlawful for any person to: 37 (A) (i) Use or cause or permit to be used, any public highway in this 38 state for the operation of a motor vehicle subject to the provisions of 39 article twenty-one of this chapter without first applying for and 40 obtaining the certificate of registration required under such article; 41 (ii) Use or cause or permit to be used, any public highway in this 42 state for the operation of a qualified motor vehicle subject to the 43 provisions of article twenty-one-A of this chapter without first obtain- 44 ing the license and decal required pursuant to such article or to carry 45 or cause or permit to be carried upon any qualified motor vehicle a 46 license or decal which has been suspended or revoked or which was issued 47 for a qualified motor vehicle other than the one on which carried. The 48 operation of any qualified motor vehicle on any public highway of this 49 state without carrying thereon the license or decal required under such 50 article shall be presumptive evidence that a license or decal has not 51 been obtained for such qualified motor vehicle; 52 (B) Operate, or cause or permit to be operated, on any public highway 53 any motor vehicle subject to the provisions of article twenty-one of 54 this chapter having an actual gross or unloaded weight in excess of the 55 gross or unloaded weight set forth on the certificate of registration 56 issued for such motor vehicle; S. 60--A 227 A. 160--A 1 (C) Fail to deliver or surrender, pursuant to the provisions of arti- 2 cle twenty-one or twenty-one-A of this chapter or any rule or regulation 3 promulgated by the commissioner, a certificate of registration or 4 license or decal to such commissioner, or any person directed by such 5 commissioner to take possession thereof; 6 (D) Fail [to make any return under article twenty-one or twenty-one-A 7 of this chapter or] to keep records of operations of motor vehicles or 8 qualified motor vehicles as the commissioner shall prescribe; 9 (E) [Make any false return; or 10 (F)] Violate any other provision of article twenty-one or twenty-one-A 11 of this chapter or any rule or regulation promulgated thereunder. 12 (2) Any person who violates any provision of this subdivision, upon a 13 first conviction shall be subject to a fine of not less than one hundred 14 dollars or more than two hundred fifty dollars; and upon a second or 15 subsequent conviction to a fine of not less than two hundred fifty 16 dollars or more than five hundred dollars or by imprisonment for not 17 more than ten days. Except as otherwise provided by law such a violation 18 shall not be a crime and the penalty or punishment imposed therefor 19 shall not be deemed for any purpose a penal or criminal penalty or 20 punishment and shall not impose any disability upon or affect or impair 21 the credibility as a witness, or otherwise, of any person convicted 22 thereof. 23 (3) For the purposes of conferring jurisdiction upon courts and police 24 officers, and on the officers specified in subdivision four of section 25 2.10 of the criminal procedure law and on judicial officers generally, 26 such violations shall be deemed traffic infractions and for such purpose 27 only all provisions of law relating to traffic infractions shall apply 28 to such violations; provided, however, that the commissioner of motor 29 vehicles, any hearing officer appointed by him, or any administrative 30 tribunal authorized to hear and determine any charges or offenses which 31 are traffic infractions shall not have jurisdiction of such infractions. 32 (4) Upon the conviction of any person for a violation of any of the 33 provisions of this subdivision, the trial court or the clerk thereof 34 shall within forty-eight hours certify the facts of the case to the 35 commissioner and such certificate shall be presumptive evidence of the 36 facts recited therein. If any such conviction shall be reversed upon 37 appeal therefrom, the person whose conviction has been so reversed may 38 serve upon the commissioner a certified copy of the order of reversal 39 and the commissioner shall thereupon record the same. 40 (b) [Felonies. Any person who files or causes to be filed any return, 41 affidavit or statement required or permitted by article twenty-one or 42 twenty-one-A of this chapter which is willfully false or fraudulent or 43 who willfully fails to file a return with intent to evade the tax is 44 guilty of a class E felony. 45 (c)] An official weigh slip or ticket issued and certified by any 46 truck weigher in the employ of the department of transportation or by 47 any duly licensed weight master shall constitute prima facie evidence of 48 the information therein set forth and of the operation of the vehicle 49 therein described upon a public highway and shall be admissible before 50 any court in any violation proceeding or criminal proceeding. 51 S 30. Section 1817 of the tax law, as added by chapter 65 of the laws 52 of 1985, paragraph 1 of subdivision (c) as amended by chapter 411 of the 53 laws of 1986, subdivision (e) as amended by chapter 765 of the laws of 54 1985, subdivision (g) as amended by chapter 412 of the laws of 1986, 55 subdivision (h) as amended by chapter 275 of the laws of 1986, subdivi- 56 sion (i) as amended by chapter 261 of the laws of 1988, subdivision (k) S. 60--A 228 A. 160--A 1 as amended by chapter 3 of the laws of 2004, subdivisions (l) and (s) as 2 amended and subdivisions (q) and (r) as added by chapter 2 of the laws 3 of 1995, subdivision (o) as added by chapter 61 of the laws of 1989, 4 subdivision (p) as added by chapter 810 of the laws of 1992 and subdivi- 5 sion (t) as added by section 3 of part A of chapter 35 of the laws of 6 2006, is amended to read as follows: 7 S 1817. Sales and compensating use taxes.--(a) [Willful failure to 8 file a return or report.--Any person required under article twenty-eight 9 of this chapter to make a return or report (other than a return of 10 compensating use tax), who willfully fails to make such return or 11 report, at the time or times so required, shall be guilty of a misdemea- 12 nor. 13 (b) Fraudulent returns, reports, statements or other documents.--(1) 14 Any person who willfully makes and subscribes any return, report, state- 15 ment or other document which is required to be filed with or furnished 16 to the tax commission or to any person, pursuant to the provisions of 17 article twenty-eight of this chapter, which he does not believe to be 18 true and correct as to every material matter shall be guilty of a misde- 19 meanor. 20 (2) Any person who willfully delivers or discloses to the tax commis- 21 sion or to any person, pursuant to the provisions of article twenty- 22 eight of this chapter, any list, return, report, account, statement or 23 other document known by him to be fraudulent or to be false as to any 24 material matter shall be guilty of a misdemeanor. 25 (3) For purposes of this section, the omission by any person of any 26 material matter with intent to deceive shall constitute the delivery or 27 disclosure of a document known by him to be fraudulent or to be false as 28 to any material matter. 29 (c) Failure to collect tax.--(1) Any person who willfully fails to 30 collect the tax imposed under article twenty-eight of this chapter from 31 a customer shall, in addition to other penalties provided by law, be 32 guilty of a misdemeanor. 33 (2) A person is guilty of failure to collect sales tax when he fails 34 to collect a sales tax required to be collected by article twenty-eight 35 of this chapter and when (a) he does so with intent to defraud the state 36 or a political subdivision thereof and thereby deprives the state or a 37 political subdivision thereof, or both together, of ten thousand dollars 38 or more, or (b) he does so with intent to defraud the state or a poli- 39 tical subdivision thereof through a common scheme or plan consisting of 40 ten or more failures to collect the required tax on sales in the amount 41 of one hundred dollars or more each. Failure to collect sales tax under 42 this paragraph is a class E felony. 43 (d)] Any person required to obtain a certificate of authority under 44 section eleven hundred thirty-four of this chapter who, without possess- 45 ing a valid certificate of authority, willfully (1) sells tangible 46 personal property or services subject to tax, receives amusement charges 47 or operates a hotel, (2) purchases or sells tangible personal property 48 for resale, or (3) sells automotive fuel; and any person who fails to 49 surrender a certificate of authority as required by such article shall 50 be guilty of a misdemeanor. 51 [(e)] (B) Any person required to obtain a certificate of authority 52 under section eleven hundred thirty-four of this chapter who within five 53 years after a determination by the tax commission, pursuant to such 54 section, to suspend, revoke or refuse to issue a certificate of authori- 55 ty has become final, and without possession of a valid certificate of 56 authority (1) sells tangible personal property or services subject to S. 60--A 229 A. 160--A 1 tax, receives amusement charges or operates a hotel, (2) purchases or 2 sells tangible personal property for resale, or (3) sells automotive 3 fuel, shall be guilty of a misdemeanor. It shall be an affirmative 4 defense that such person performed the acts described in this subdivi- 5 sion without knowledge of such determination. Any person who violates a 6 provision of this subdivision, upon conviction, shall be subject to a 7 fine in any amount authorized by this article, but not less than five 8 hundred dollars, in addition to any other penalty provided by law. 9 [(f)] (C) Any person who willfully fails to file a notice of a show as 10 required by article twenty-eight of this chapter or who willfully rents, 11 leases or grants a license to use space for a show or operates a show 12 without obtaining a permit pursuant to paragraph two of subdivision (b) 13 of section eleven hundred thirty-four of this chapter shall be guilty of 14 a misdemeanor. 15 [(g)] (D) Any person (1) who willfully fails to charge separately the 16 tax imposed under article twenty-eight of this chapter or to state such 17 tax separately on any bill, statement, memorandum or receipt issued or 18 employed by him upon which the tax is required to be stated separately 19 as provided in subdivision (a) of section eleven hundred thirty-two of 20 this chapter; or (2) who shall refer or cause reference to be made to 21 such tax in a form or manner other than that required by such article 22 twenty-eight, shall be guilty of a misdemeanor. 23 [(h)] (E) Any person willfully failing to file a bond or other securi- 24 ty or deposit taxes in any banking institution where such filing or 25 deposit is required pursuant to the provisions of paragraph two or three 26 of subdivision (e) of section eleven hundred thirty-seven of this chap- 27 ter shall be guilty of a misdemeanor. 28 [(i)] (F) Any owner of a filling station who shall willfully and know- 29 ingly have in his custody, possession or under his control any motor 30 fuel or diesel motor fuel on which (1) the prepaid tax imposed by 31 section eleven hundred two of this chapter has not been assumed or paid 32 by a distributor registered as such under article twelve-A of this chap- 33 ter or (2) the prepaid tax imposed by section eleven hundred two of this 34 chapter was required to have been passed through to him and has not been 35 included in the cost of such fuel to him, shall in either case, be guil- 36 ty of a class E felony. For purposes of this subdivision, such owner 37 shall willfully and knowingly have in his custody, possession or under 38 his control any motor fuel or diesel motor fuel on which such tax has 39 not been assumed or paid by a distributor registered as such where such 40 owner has knowledge of the requirement that such tax be paid and where, 41 to his knowledge, such tax has not been assumed or paid by such regis- 42 tered distributor on such motor fuel or diesel motor fuel. Such owner 43 shall willfully and knowingly have in his custody, possession or under 44 his control motor fuel or diesel motor fuel on which such tax is 45 required to have been passed through to him and has not been included in 46 the cost to him where such owner has knowledge of the requirement that 47 such tax be passed through and where to his knowledge such tax has not 48 been so included. 49 [(j)] (G) Any person who willfully fails to keep any records required 50 by article twenty-eight of this chapter shall be guilty of a misdemea- 51 nor. 52 [(k)] (H) The penalties provided for in this section shall not 53 preclude prosecution pursuant to the penal law with respect to the will- 54 ful failure of any person to pay over to the state any sales tax imposed 55 by section eleven hundred four, eleven hundred five, eleven hundred 56 seven, eleven hundred eight or eleven hundred nine of this chapter or by S. 60--A 230 A. 160--A 1 any local law adopted by any city or county pursuant to article twenty- 2 nine of this chapter, whenever such person has been required to collect 3 and has collected any such sales tax. In any such prosecution under the 4 penal law, a person who has been required to collect and has collected 5 any such tax shall be deemed to have acted in a fiduciary character with 6 respect to the state or a political subdivision thereof, and the tax 7 collected shall be deemed to have been entrusted to such person by the 8 state or a political subdivision thereof. 9 [(l) Any person who willfully fails to pay sales or compensating use 10 tax, or to file a return of compensating use tax imposed by or pursuant 11 to the authority of article twenty-eight or twenty-nine of this chapter, 12 with respect to the purchase or use of automotive fuel or cigarettes 13 shall be guilty of a misdemeanor. 14 (m) Any person who willfully issues a false or fraudulent resale or 15 other exemption certificate or document with intent to evade tax shall 16 be guilty of a misdemeanor. 17 (n) Any person who, being duly subpoenaed, pursuant to section one 18 hundred seventy-four of this chapter or the provisions of the civil 19 practice law and rules, in connection with a matter arising under arti- 20 cle twenty-eight of this chapter, to attend as a witness or to produce 21 books, accounts, records, memoranda, documents or other papers who (i) 22 fails or refuses to attend without lawful excuse, (ii) refuses to be 23 sworn, (iii) refuses to answer any material and proper question, or (iv) 24 refuses, after reasonable notice, to produce books, accounts, records, 25 memoranda, documents or other papers in his possession or under his 26 control which constitute material and proper evidence shall be guilty of 27 a misdemeanor. 28 (o)] (I) Any entertainment promoter who willfully authorizes an enter- 29 tainment vendor, to whom such promoter has either directly or indirectly 30 rented, leased, granted a license to use or under any other arrangement 31 made space available in order for such vendor to make taxable sales of 32 tangible personal property at an entertainment event, without first 33 requiring such vendor to obtain a certificate of authority or who will- 34 fully fails to obtain an entertainment promoter certificate as required 35 under article twenty-eight of this chapter shall be guilty of a misde- 36 meanor. 37 [(p)] (J) Any person described in subdivision (a) of section eleven 38 hundred forty-two-A of this chapter who willfully fails to include all 39 information required under such section on a ticket or other memorandum 40 as described in such section shall be guilty of a misdemeanor. 41 [(q)] (K) Any owner of a place of business selling cigarettes at 42 retail who shall willfully and knowingly have in such owner's custody or 43 possession or under such owner's control any cigarettes on which (1) the 44 prepaid tax imposed by section eleven hundred three of this chapter has 45 not been assumed or paid by an agent licensed as such under article 46 twenty of this chapter or (2) the prepaid tax imposed by section eleven 47 hundred three of this chapter was required to have been passed through 48 to such owner and has not been included in the cost of such cigarettes 49 to such owner shall, in either case, be guilty of a misdemeanor. 50 Provided, however, if the amount of cigarettes is twenty thousand or 51 more, such owner shall be guilty of a class E felony. For purposes of 52 this subdivision, such owner shall willfully and knowingly have in such 53 owner's custody or possession or under such owner's control any ciga- 54 rettes on which such tax has not been assumed or paid by an agent 55 licensed as such under such article twenty where such owner has know- 56 ledge of the requirement that such tax be assumed or paid and where, to S. 60--A 231 A. 160--A 1 such owner's knowledge, such tax has not been assumed or paid by such an 2 agent on such cigarettes. Such owner shall willfully and knowingly have 3 in such owner's custody or possession or under such owner's control 4 cigarettes on which such tax is required to have been passed through to 5 such owner and has not been included in the cost to such owner where 6 such owner has knowledge of the requirement that such tax be passed 7 through and where to such owner's knowledge such tax has not been so 8 included. 9 [(r)] (L) Any person who falsely or fraudulently makes, alters or 10 counterfeits any stamp prescribed by the commissioner under the 11 provisions of article twenty-eight or pursuant to the authority of arti- 12 cle twenty-nine of this chapter, or causes or procures to be falsely or 13 fraudulently made, altered or counterfeited any such stamp, or knowingly 14 and willfully utters, purchases, passes or tenders as true any such 15 false, altered or counterfeited stamp, or knowingly and willfully 16 possesses any cigarettes in packages bearing any such false, altered or 17 counterfeited stamp, and any person who knowingly and willfully makes, 18 causes to be made, purchases or receives any device for forging or coun- 19 terfeiting any stamp prescribed by the commissioner under the provisions 20 of article twenty-eight or pursuant to the authority of article twenty- 21 nine of this chapter, or who knowingly and willfully possesses any such 22 device, shall be guilty of a class E felony. For the purposes of this 23 subdivision, the words "stamp prescribed by the commissioner" shall 24 include a stamp, impression or imprint made by a metering machine, the 25 design of which has been approved by the commissioner. 26 [(s)] (M) All of the provisions of this section shall apply for 27 purposes of any taxes administered by the commissioner and imposed 28 pursuant to the authority of article twenty-nine of this chapter and for 29 the purposes of any taxes imposed by article twenty-eight-A of this 30 chapter. References in subdivisions [(i), (l), (q) and (r)] (F), (K), 31 AND (L) of this section to taxes imposed by or pursuant to the authority 32 of article twenty-eight or twenty-nine of this chapter include the taxes 33 required to be prepaid pursuant to section eleven hundred two or eleven 34 hundred three of this chapter. 35 [(t)] (N) (1) Every person engaged in the retail sale of motor fuel 36 and/or diesel motor fuel or a distributor of such fuels, as defined in 37 article twelve-A of this chapter, shall comply with the provisions of 38 section three hundred ninety-two-i of the general business law by reduc- 39 ing the prices charged for motor fuel and diesel motor fuel in an amount 40 equal to any reduction in taxes prepaid by the distributor or imposed on 41 retail customers resulting from computing sales and compensating use 42 taxes at a cents per gallon rate pursuant to the provisions of paragraph 43 two of subdivision (e) and subdivision (m) of section one thousand one 44 hundred eleven of this chapter. 45 (2) The commissioner, in cooperation with the state consumer 46 protection board, shall monitor the prices charged by persons engaged in 47 the retail sale or distribution of motor fuel and diesel motor fuel. 48 (3) Upon a finding by the commissioner that a person engaged in the 49 retail sale of motor fuel and/or diesel motor fuel or in the distrib- 50 ution of such fuels has violated the provisions of section three hundred 51 ninety-two-i of the general business law, the commissioner shall provide 52 notice of such violation to such person and hold a hearing on such 53 violation, with an opportunity for the accused to be heard, not less 54 than ten days after notice is provided. A violation of section three 55 hundred ninety-two-i of the general business law shall subject the S. 60--A 232 A. 160--A 1 person violating such section to a civil penalty of up to five thousand 2 dollars for each day such violation occurs. 3 S 31. Section 1818 of the tax law, as added by chapter 65 of the laws 4 of 1985, is amended to read as follows: 5 S 1818. Real estate transfer tax.--Any willful act or omission, by any 6 person which constitutes a violation of any provision of article thir- 7 ty-one of this chapter [or any willful attempt to evade or defeat the 8 tax imposed by such article] shall constitute a misdemeanor. 9 S 32. Section 1820 of the tax law, as added by chapter 833 of the laws 10 of 1987, is amended to read as follows: 11 S 1820. Boxing and wrestling exhibitions tax. Any willful act or omis- 12 sion by any person which constitutes a violation of any provision of 13 article nineteen of this chapter [or any willful attempt to evade or 14 defeat the tax imposed by such article] shall constitute a misdemeanor. 15 S 33. The tax law is amended by adding three new sections 1831, 1832 16 and 1833 to read as follows: 17 S 1831. FAILURE TO OBEY SUBPOENAS. ANY PERSON WHO IS DULY SUBPOENAED, 18 PURSUANT TO SECTION ONE HUNDRED SEVENTY-FOUR OF THIS CHAPTER OR THE 19 PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES, IN CONNECTION WITH ANY 20 MATTER ARISING UNDER THIS CHAPTER, OR ANY RELATED INCOME OR EARNINGS TAX 21 STATUTE, TO ATTEND AS A WITNESS OR TO PRODUCE BOOKS, ACCOUNTS, RECORDS, 22 MEMORANDA, DOCUMENTS OR OTHER PAPERS, AND WHO (1) FAILS OR REFUSES TO 23 ATTEND WITHOUT LAWFUL EXCUSE, (2) REFUSES TO BE SWORN, (3) WITHOUT 24 ASSERTING A VALID LEGAL PRIVILEGE REFUSES TO ANSWER ANY MATERIAL AND 25 PROPER QUESTION, OR (4) WITHOUT ASSERTING A VALID LEGAL PRIVILEGE 26 REFUSES, AFTER REASONABLE NOTICE, TO PRODUCE BOOKS, ACCOUNTS, RECORDS, 27 MEMORANDA, DOCUMENTS OR OTHER PAPERS THAT CONSTITUTE MATERIAL AND PROPER 28 EVIDENCE IN HIS OR HER POSSESSION OR UNDER HIS OR HER CONTROL, SHALL BE 29 GUILTY OF A MISDEMEANOR. 30 S 1832. NON-PREEMPTION; PENAL LAW ANTICIPATORY OFFENSES AND ACCESSO- 31 RIAL LIABILITY APPLY. (A) UNLESS EXPRESSLY STATED OTHERWISE, THE PENAL- 32 TIES PROVIDED IN THIS CHAPTER SHALL NOT PRECLUDE PROSECUTION FOR ANY 33 OFFENSE UNDER THE PENAL LAW OR ANY OTHER CRIMINAL STATUTE. 34 (B) THE OFFENSES SPECIFIED IN TITLE G OF THE PENAL LAW AND THE 35 PROVISIONS OF ARTICLE TWENTY OF THE PENAL LAW ARE APPLICABLE TO ALL 36 OFFENSES DEFINED IN THIS CHAPTER. 37 S 1833. TAX PREPARER REGISTRATION. A COMMERCIAL TAX RETURN PREPARER, 38 AS DEFINED BY PARAGRAPH THREE OF SUBDIVISION (A) OF SECTION THIRTY-TWO 39 OF THIS CHAPTER, WHO WILLFULLY AND WITH THE INTENT TO EVADE THE REQUIRE- 40 MENTS OF SECTION THIRTY-TWO OF THIS CHAPTER, FAILS TO SIGN HIS OR HER 41 NAME TO ANY TAX RETURN THAT REQUIRES A SIGNATURE OR FAILS TO REGISTER AS 42 REQUIRED BY SUCH SECTION THIRTY-TWO, WILL BE GUILTY OF A CLASS A MISDE- 43 MEANOR. 44 S 34. This act shall take effect immediately and apply to offenses 45 committed on and after such effective date. 46 SUBPART K 47 Section 1. Section 702 of the county law is amended by adding a new 48 subdivision 7 to read as follows: 49 7. NOTWITHSTANDING ANY PROVISION OF LAW WITH RESPECT TO THE REQUIRE- 50 MENTS OF RESIDENCE, A DISTRICT ATTORNEY MAY APPOINT ONE OR MORE ATTOR- 51 NEYS EMPLOYED BY THE DEPARTMENT OF TAXATION AND FINANCE AS SPECIAL 52 ASSISTANT DISTRICT ATTORNEYS WITH RESPECT TO ANY INVESTIGATION OR PROSE- 53 CUTION CONCERNING, IN WHOLE OR PART, A VIOLATION OF ARTICLE THIRTY-SEVEN S. 60--A 233 A. 160--A 1 OF THE TAX LAW OR OF THE PENAL LAW AS IT APPLIES TO THE ENFORCEMENT OF 2 ANY PROVISION OF THE TAX LAW. 3 S 2. This act shall take effect immediately. 4 SUBPART L 5 Section 1. Subdivision 4 of section 1700 of the tax law, as added by 6 section 1 of part CC1 of chapter 57 of the laws of 2008, is amended to 7 read as follows: 8 4. To participate in the voluntary disclosure and compliance program, 9 an eligible taxpayer must apply by submitting a disclosure statement in 10 the form and manner prescribed by the commissioner. The disclosure 11 statement shall contain all the information the commissioner reasonably 12 deems necessary to effectively administer the program. As long as all 13 the requirements of the voluntary disclosure and compliance program are 14 met, no application shall be denied solely because the taxpayer has 15 admitted that the delinquency was the result of willful or fraudulent 16 conduct. Except in instances where the taxpayer has failed to comply 17 with the terms of a voluntary disclosure and compliance agreement, the 18 commissioner shall not use the taxpayer's disclosure as evidence in any 19 proceeding brought against the taxpayer or reveal the contents of the 20 disclosure to any law enforcement or other agency. HOWEVER, THE DISCLO- 21 SURE OF ANY RETURNS OR REPORTS FILED UNDER THIS PROGRAM WITH THE SECRE- 22 TARY OF THE TREASURY OF THE UNITED STATES, HIS OR HER DELEGATES, OR THE 23 PROPER TAX OFFICER OF ANY STATE OR CITY IS PERMITTED AS OTHERWISE 24 PROVIDED FOR IN THIS CHAPTER. 25 S 2. This act shall take effect immediately. 26 SUBPART M 27 Section 1. Paragraph a of subdivision twenty-sixth of section 171 of 28 the tax law, as amended by section 1 of part M3 of chapter 62 of the 29 laws of 2003, is amended to read as follows: 30 a. Set the overpayment and underpayment rates of interest for purposes 31 of articles twelve-A, eighteen, twenty and twenty-one of this chapter. 32 Such rates shall be the overpayment and underpayment rates of interest 33 set pursuant to subsection (e) of section one thousand ninety-six of 34 this chapter, but the underpayment rate shall not be less than [six] 35 SEVEN AND ONE-HALF percent per annum. Any such rates set by such commis- 36 sioner shall apply to taxes, or any portion thereof, which remain or 37 become due or overpaid (other than overpayments under such article twen- 38 ty and not including reimbursements, if any, under any of such articles) 39 on or after the date on which such rates become effective and shall 40 apply only with respect to interest computed or computable for periods 41 or portions of periods occurring in the period during which such rates 42 are in effect. In computing the amount of any interest required to be 43 paid under such articles by such commissioner or by the taxpayer, or any 44 other amount determined by reference to such amount of interest, such 45 interest and such amount shall be compounded daily. 46 S 2. Subsections (a) and (j) of section 684 of the tax law, as amended 47 by section 6 of part R of chapter 85 of the laws of 2002, are amended to 48 read as follows: 49 (a) General.--If any amount of income tax is not paid on or before the 50 last date prescribed in this article for payment, interest on such 51 amount at the underpayment rate set by the commissioner pursuant to 52 section six hundred ninety-seven OF THIS PART, or if no rate is set, at S. 60--A 234 A. 160--A 1 the rate of [six per cent] SEVEN AND ONE-HALF PERCENT per annum shall be 2 paid for the period from such last date to the date paid, whether or not 3 any extension of time for payment was granted. Interest under this 4 subsection shall not be paid if the amount thereof is less than one 5 dollar. If the time for filing of a return of tax withheld by an employ- 6 er is extended, the employer shall pay interest for the period for which 7 the extension is granted and may not charge such interest to the employ- 8 ee. 9 (j) Interest on erroneous refund.--Any portion of tax or other amount 10 which has been erroneously refunded, and which is recoverable by the 11 commissioner, shall bear interest at the underpayment rate set by the 12 commissioner pursuant to section six hundred ninety-seven OF THIS PART, 13 or if no rate is set, at the rate of [six per cent] SEVEN AND ONE-HALF 14 PERCENT per annum from the date of the payment of the refund, but only 15 if it appears that any part of the refund was induced by fraud or a 16 misrepresentation of a material fact. 17 S 3. Paragraph 1 of subsection (c) of section 685 of the tax law, as 18 amended by section 7 of part R of chapter 85 of the laws of 2002, is 19 amended to read as follows: 20 (1) Addition to the tax.--Except as otherwise provided in this 21 subsection and subsection (d) OF THIS SECTION, in the case of any under- 22 payment of estimated tax by an individual, there shall be added to the 23 tax under this article for the taxable year an amount determined by 24 applying the underpayment rate established under subsection (j) of 25 section six hundred ninety-seven OF THIS PART, or if no rate is set, at 26 the rate of [six] SEVEN AND ONE-HALF percent per annum, to the amount of 27 the underpayment for the period of the underpayment. Such period shall 28 run from the due date for the required installment to the earlier of the 29 fifteenth day of the fourth month following the close of the taxable 30 year or, with respect to any portion of the underpayment, the date on 31 which such portion is paid. For purposes of determining such date, a 32 payment of estimated tax shall be credited against unpaid required 33 installments in the order in which such installments are required to be 34 paid. There shall be four required installments for each taxable year, 35 due on April fifteenth, June fifteenth and September fifteenth of such 36 taxable year and on January fifteenth of the following taxable year. 37 S 4. Paragraph 1 of subsection (j) of section 697 of the tax law, as 38 amended by section 2 of part M3 of chapter 62 of the laws of 2003, is 39 amended to read as follows: 40 (1) The commissioner shall set the overpayment and underpayment rates 41 of interest to be paid pursuant to sections six hundred eighty-four, six 42 hundred eighty-five and six hundred eighty-eight OF THIS PART, but if no 43 such rates of interest are set, such [rates] OVERPAYMENT RATE shall be 44 deemed to be set at six percent per annum AND SUCH UNDERPAYMENT RATE 45 SHALL BE DEEMED TO BE SET AT SEVEN AND ONE-HALF PERCENT PER ANNUM. Such 46 rates shall be the rates prescribed in paragraphs two and four of this 47 subsection, but the underpayment rate shall not be less than [six] SEVEN 48 AND ONE-HALF percent per annum. Any such rates set by the commissioner 49 shall apply to taxes, or any portion thereof, which remain or become due 50 or overpaid on or after the date on which such rates become effective 51 and shall apply only with respect to interest computed or computable for 52 periods or portions of periods occurring in the period during which such 53 rates are in effect. 54 S 5. Paragraph 2 of subsection (j) of section 697 of the tax law, as 55 amended by section 10 of part R of chapter 85 of the laws of 2002, is 56 amended to read as follows: S. 60--A 235 A. 160--A 1 (2) Rates of interest. (A) Overpayment rate. The overpayment rate of 2 interest set under this subsection shall be the [sum of (i) the] federal 3 short-term rate as provided under paragraph three of this subsection[, 4 plus (ii) two percentage points]. 5 (B) Underpayment rate. The underpayment rate of interest set under 6 this subsection shall be the sum of (i) the federal short-term rate as 7 provided under paragraph three of this subsection, plus (ii) [four] FIVE 8 AND ONE-HALF percentage points. 9 S 6. Subsections (a) and (j) of section 1084 of the tax law, as 10 amended by section 123 and subsection (j) as relettered by section 148 11 of chapter 61 of the laws of 1989, are amended to read as follows: 12 (a) General.--If any amount of tax is not paid on or before the last 13 date prescribed in article nine or nine-a OF THIS CHAPTER for payment, 14 interest on such amount at the underpayment rate set by the commissioner 15 [of taxation and finance] pursuant to section one thousand ninety-six OF 16 THIS ARTICLE, or if no rate is set, at the rate of [six] SEVEN AND ONE- 17 HALF percent per annum shall be paid for the period from such last date 18 to the date paid, whether or not any extension of time for payment was 19 granted. Interest under this subsection shall not be paid if the amount 20 thereof is less than one dollar. 21 (j) Interest on erroneous refund.---Any portion of tax or other amount 22 which has been erroneously refunded, and which is recoverable by the 23 commissioner [of taxation and finance], shall bear interest at the 24 underpayment rate set by the commissioner pursuant to section one thou- 25 sand ninety-six OF THIS ARTICLE, or if no rate is set, at the rate of 26 [six] SEVEN AND ONE-HALF percent per annum from the date of the payment 27 of the refund, but only if it appears that any part of the refund was 28 induced by fraud or a misrepresentation of a material fact. 29 S 7. Paragraph 1 of subsection (c) of section 1085 of the tax law, as 30 amended by chapter 57 of the laws of 1993, is amended to read as 31 follows: 32 (1) If any taxpayer fails to file a declaration of estimated tax under 33 article nine-A OF THIS CHAPTER, or fails to pay all or any part of an 34 amount which is applied as an installment against such estimated tax, it 35 shall be deemed to have made an underpayment of estimated tax. There 36 shall be added to the tax for the taxable year an amount at the under- 37 payment rate set by the commissioner pursuant to section one thousand 38 ninety-six OF THIS ARTICLE, or if no rate is set, at the rate of [six] 39 SEVEN AND ONE-HALF percent per annum upon the amount of the underpayment 40 for the period of the underpayment but not beyond the fifteenth day of 41 the third month following the close of the taxable year. The amount of 42 the underpayment shall be, with respect to any installment of estimated 43 tax computed on the basis of the preceding year's tax, the excess of the 44 amount required to be paid over the amount, if any, paid on or before 45 the last day prescribed for such payment or, with respect to any other 46 installment of estimated tax, the excess of the amount of the install- 47 ment which would be required to be paid if the estimated tax were equal 48 to ninety-one percent of the tax shown on the return for the taxable 49 year (or if no return was filed, ninety-one percent of the tax for such 50 year) over the amount, if any, of the installment paid on or before the 51 last day prescribed for such payment. In any case in which there would 52 be no underpayment if "eighty percent" were substituted for "ninety-one 53 percent" each place it appears in this subsection, the addition to the 54 tax shall be equal to seventy-five percent of the amount otherwise 55 determined. No underpayment shall be deemed to exist with respect to a S. 60--A 236 A. 160--A 1 declaration or installment otherwise due on or after the termination of 2 existence of the taxpayer. 3 S 8. Paragraph 1 of subsection (e) of section 1096 of the tax law, as 4 amended by section 3 of part M3 of chapter 62 of the laws of 2003, is 5 amended to read as follows: 6 (1) Authority to set interest rates.---The commissioner shall set the 7 overpayment and underpayment rates of interest to be paid pursuant to 8 sections two hundred thirteen, two hundred thirteen-b, two hundred 9 fifty-eight, two hundred sixty-three, two hundred ninety-four, one thou- 10 sand eighty-four, one thousand eighty-five, one thousand eighty-eight, 11 fourteen hundred sixty-one and fourteen hundred sixty-three OF THIS 12 CHAPTER, but if no such rate or rates of interest are set, such OVERPAY- 13 MENT rate [or rates] shall be deemed to be set at six percent per annum 14 AND SUCH UNDERPAYMENT RATE SHALL BE DEEMED TO BE SET AT SEVEN AND 15 ONE-HALF PERCENT PER ANNUM. Such overpayment and underpayment rates 16 shall be the rates prescribed in paragraph two of this subsection, but 17 the underpayment rate shall not be less than [six] SEVEN AND ONE-HALF 18 percent per annum. Any such rates set by the commissioner shall apply to 19 taxes, or any portion thereof, which remain or become due or overpaid on 20 or after the date on which such rates become effective and shall apply 21 only with respect to interest computed or computable for periods or 22 portions of periods occurring in the period during which such rates are 23 in effect. 24 S 9. Paragraph 2 of subsection (e) of section 1096 of the tax law, as 25 amended by chapter 61 of the laws of 1989 and subparagraph (B) as 26 amended by section 11 of part R of chapter 85 of the laws of 2002, is 27 amended to read as follows: 28 (2) General rule. (A) Overpayment rate. The overpayment rate set under 29 this subsection shall be the [sum of (i) the] federal short-term rate as 30 provided under paragraph three of this subsection[, plus (ii) two 31 percentage points]. 32 (B) Underpayment rate. The underpayment rate set under this subsection 33 shall be the sum of (i) the federal short-term rate as provided under 34 paragraph three of this subsection, plus (ii) [five] SEVEN percentage 35 points. 36 S 10. Subdivision (d) of section 1139 of the tax law, as amended by 37 chapter 61 of the laws of 1989, is amended to read as follows: 38 (d) (1) Except in respect to an overpayment made on a return described 39 in paragraph [(ii)] TWO of subdivision (a) of section eleven hundred 40 thirty-six [hereof] OF THIS PART or on a return described in subdivision 41 (c) of section eleven hundred thirty-seven-A OF THIS PART, interest 42 shall be allowed and paid upon any refund made or credit allowed pursu- 43 ant to this section except as otherwise provided in PARAGRAPH TWO OF 44 THIS SUBDIVISION OR subdivision (e) of this section and except that no 45 interest shall be allowed or paid if the amount thereof would be less 46 than one dollar. Such interest shall be at the overpayment rate set by 47 the commissioner [of taxation and finance] pursuant to section eleven 48 hundred forty-two OF THIS PART, or if no rate is set, at the rate of six 49 [per cent] PERCENT per annum from the date when the tax, penalty or 50 interest refunded or credited was paid to a date preceding the date of 51 the refund check by not more than thirty days, provided, however, that 52 for the purposes of this subdivision any tax paid before the last day 53 prescribed for its payment shall be deemed to have been paid on such 54 last day. In the case of a REFUND OR CREDIT CLAIMED ON A return of tax 55 which is filed after the last date prescribed for filing such return 56 (determined with regard to extensions), OR CLAIMED ON AN APPLICATION FOR S. 60--A 237 A. 160--A 1 REFUND OR CREDIT, no interest shall be allowed or paid for any day 2 before the date on which the return OR APPLICATION is filed. For 3 purposes of this subdivision, a return OR APPLICATION FOR REFUND OR 4 CREDIT shall not be treated as filed until it is filed in processible 5 form. A return OR APPLICATION is in a processible form if [such return] 6 IT is filed on a permitted form, and [such return] contains the taxpay- 7 er's name, address and identifying number and the required signatures, 8 and sufficient required information (whether on the return OR APPLICA- 9 TION or on required attachments) to permit the mathematical verification 10 of tax liability shown on the return OR REFUND OR CREDIT CLAIMED ON THE 11 APPLICATION. 12 (2) IF A REFUND IS MADE OR A CREDIT IS ALLOWED WITHIN THREE MONTHS 13 AFTER THE LAST DATE PRESCRIBED OR PERMITTED BY EXTENSION OF TIME FOR 14 FILING A RETURN ON WHICH THE REFUND OR CREDIT WAS CLAIMED OR WITHIN 15 THREE MONTHS AFTER THE RETURN WAS FILED, WHICHEVER IS LATER, OR WITHIN 16 THREE MONTHS AFTER AN APPLICATION FOR REFUND OR CREDIT IS FILED ON WHICH 17 THAT REFUND OR CREDIT WAS CLAIMED, NO INTEREST WILL BE ALLOWED OR PAID 18 ON THAT REFUND OR CREDIT. 19 S 11. Subdivision 9 of section 1142 of the tax law, as amended by 20 section 4 of part M3 of chapter 62 of the laws of 2003, is amended to 21 read as follows: 22 9. To set the overpayment and underpayment rates of interest for 23 purposes of sections eleven hundred thirty-nine and eleven hundred 24 forty-five OF THIS PART. Such rates shall be the overpayment and under- 25 payment rates of interest set pursuant to subsection (e) of section one 26 thousand ninety-six of this chapter, but the underpayment rate shall not 27 be less than [six] SEVEN AND ONE-HALF percent per annum. Any such rates 28 set by the commissioner shall apply to taxes, or any portion thereof, 29 which remain or become due or overpaid on or after the date on which 30 such rates become effective and shall apply only with respect to inter- 31 est computed or computable for periods or portions of periods occurring 32 in the period during which such rates are in effect. In computing the 33 amount of any interest required to be paid under this article by the 34 commissioner or by the taxpayer, or any other amount determined by 35 reference to such amount of interest, such interest and such amount 36 shall be compounded daily. The preceding sentence shall not apply for 37 purposes of computing the amount of any interest for failure to pay 38 estimated tax under subparagraph (iv) of paragraph one of subdivision 39 (a) of section [one thousand one] ELEVEN hundred forty-five of this 40 [article] PART. 41 S 12. Subparagraph (ii) of paragraph 1 and paragraph 2 of subdivision 42 (a) of section 1145 of the tax law, as amended by section 12 of part R 43 of chapter 85 of the laws of 2002, are amended to read as follows: 44 (ii) If any amount of tax is not paid on or before the last date 45 prescribed in this article for payment, interest on such amount at the 46 rate of fourteen AND ONE-HALF percent per annum or at the underpayment 47 rate set by the commissioner pursuant to section eleven hundred forty- 48 two OF THIS PART, whichever is greater, shall be paid for the period 49 from such last date to the date paid, whether or not any extension of 50 time for payment was granted. Interest under this subparagraph shall 51 not be paid if the amount thereof is less than one dollar. 52 (2) If the failure to pay or pay over any tax to the commissioner 53 within the time required by this article is due to fraud, in lieu of the 54 penalties and interest provided for in subparagraphs (i) and (ii) of 55 paragraph one of this subdivision, there shall be added to the tax (i) a 56 penalty of fifty percent of the amount of the tax due, plus (ii) inter- S. 60--A 238 A. 160--A 1 est on such unpaid tax at the rate of fourteen AND ONE-HALF percent per 2 annum or the underpayment rate of interest set by the commissioner 3 pursuant to section eleven hundred forty-two OF THIS PART, whichever is 4 greater, for the period beginning on the last day prescribed by this 5 article for the payment of such tax (determined without regard to any 6 extension of time for paying) and ending on the day on which such tax is 7 paid, plus (iii) for the period beginning on the last day prescribed by 8 this article for the payment of such tax (determined without regard to 9 any extension of time for paying) and ending on the day the amount of 10 tax due is finally determined or, if earlier, on the day on which such 11 tax is paid, an amount equal to fifty percent of the interest payable 12 under subparagraph (ii) of this paragraph, on that portion of the unpaid 13 tax which is attributable to fraud. 14 S 13. Paragraph (a) of subdivision 1 of section 1405 of the abandoned 15 property law, as amended by section 13 of part R of chapter 85 of the 16 laws of 2002, is amended to read as follows: 17 (a) Notwithstanding any other provision of law, no owner of abandoned 18 property shall be entitled to receive interest on account of such aban- 19 doned property from and after the date a payment of such abandoned prop- 20 erty is hereafter made to the state comptroller pursuant to this chapter 21 or any law relating to abandoned property, whether or not he OR SHE was 22 entitled to interest on such property prior to such date, except that 23 interest at the overpayment rate set by the commissioner of taxation and 24 finance pursuant to subsection (j) of section six hundred ninety-seven 25 of the tax law, [less] PLUS one percentage point, shall accrue to aban- 26 doned property hereafter paid to the state comptroller under the follow- 27 ing provisions of this chapter, for the first five years such property 28 is held by him OR HER: 29 (i) paragraph (a) of subdivision one of section three hundred of this 30 chapter; or 31 (ii) subdivision one of section four hundred of this chapter; or 32 (iii) paragraph (a) of subdivision one of section six hundred of this 33 chapter; or 34 (iv) subdivision one of section [ten hundred] ONE THOUSAND of this 35 chapter. 36 S 14. Subdivision 6 of section 72-0201 of the environmental conserva- 37 tion law, as amended by section 14 of part R of chapter 85 of the laws 38 of 2002, is amended to read as follows: 39 6. In addition to any penalty that may be assessed pursuant to subdi- 40 vision five of this section, there shall be collected interest upon the 41 unpaid amount at the underpayment rate set by the commissioner of taxa- 42 tion and finance pursuant to section one thousand ninety-six of the tax 43 law, minus [two] FOUR percentage points. Such interest shall accrue 44 thirty days from the date prescribed for fee payment until payment is 45 actually made to the department. 46 S 15. Subparagraph (iii) of paragraph 2 of subsection (a) of section 47 1112 of the insurance law, as amended by section 15 of part R of chapter 48 85 of the laws of 2002, is amended to read as follows: 49 (iii) If any insurer fails to pay all or any part of the initial 50 payment or estimated payment due pursuant to subparagraph (i) or (ii) of 51 this paragraph, it shall be deemed to have made an underpayment. There 52 shall be added to the amount due pursuant to paragraph one of this 53 subsection, an amount at the rate set for underpayments by the commis- 54 sioner of taxation and finance pursuant to section one thousand ninety- 55 six of the tax law, minus [two] FOUR percentage points, or if no rate is 56 set, at the rate of six percent per annum upon the amount of the under- S. 60--A 239 A. 160--A 1 payment for the period of the underpayment. In computing the amount of 2 any interest required to be paid, such interest shall not be compounded. 3 The amount of the underpayment shall be, with respect to the initial 4 payment or any estimated payment, the excess of the amount required to 5 be paid over the amount, if any, paid on or before the last day 6 prescribed for such payment. If the superintendent demands payment of 7 the initial payment or any estimated payment, and if such amount is paid 8 within ten days after the date of such demand, interest on the amount so 9 paid shall not be imposed for the period after the date of such demand. 10 No portion of the interest imposed pursuant to this subparagraph may be 11 waived. 12 S 16. Subparagraph (iv) of paragraph 2 of subsection (a) of section 13 1112 of the insurance law, as amended by chapter 61 of the laws of 1989, 14 is amended to read as follows: 15 (iv) Notwithstanding the provisions of section sixteen of the state 16 finance law, interest shall be allowed and paid at the rate set for 17 overpayments, PLUS TWO PERCENTAGE POINTS, by the commissioner of taxa- 18 tion and finance pursuant to section one thousand ninety-six of the tax 19 law, or if no rate is set, at the rate of six percent per annum upon any 20 overpayment, from the date payment was due to a date (to be determined 21 by the superintendent) preceding the date of a refund check by not more 22 than thirty days. In the case of a payment which is made after the last 23 date prescribed for payment of such payment, no interest shall be 24 allowed or paid for any day before the date on which the payment was 25 made. In computing the amount of interest required to be paid, such 26 interest shall not be compounded. No interest shall be allowed or paid 27 if the amount thereof is less than one dollar. 28 S 17. Paragraph (a) of subsection 4 of section 9110 of the insurance 29 law, as amended by section 16 of part R of chapter 85 of the laws of 30 2002, is amended to read as follows: 31 (a) Interest. If any amount of tax is not paid on or before the date 32 prescribed for payment thereof in subsection two of this section, inter- 33 est on such amount of tax at the underpayment rate set by the commis- 34 sioner of taxation and finance pursuant to section one thousand ninety- 35 six of the tax law, plus [three] ONE percentage [points] POINT, shall be 36 paid to the superintendent for the period from the date prescribed for 37 payment until the date paid. 38 S 18. Paragraph (a) of subsection 4 of section 9111 of the insurance 39 law, as amended by section 17 of part R of chapter 85 of the laws of 40 2002, is amended to read as follows: 41 (a) Interest. If any amount of tax is not paid on or before the date 42 prescribed for payment thereof in subsection two of this section, inter- 43 est on such amount of tax at the underpayment rate set by the commis- 44 sioner of taxation and finance pursuant to section one thousand ninety- 45 six of the tax law, plus [three] ONE percentage [points] POINT, shall be 46 paid to the superintendent for the period from the date prescribed for 47 payment until the date paid. 48 S 19. Paragraph 1 of subsection (d) of section 9111-a of the insurance 49 law, as amended by section 18 of part R of chapter 85 of the laws of 50 2002, is amended to read as follows: 51 (1) Interest. If any amount of tax is not paid on or before the date 52 prescribed for payment thereof in paragraph two of this subsection, 53 interest on such amount of tax at the underpayment rate set by the 54 commissioner of taxation and finance pursuant to section one thousand 55 ninety-six of the tax law, plus [three] ONE percentage [points] POINT, S. 60--A 240 A. 160--A 1 shall be paid to the superintendent for the period from the date 2 prescribed for payment until the date paid. 3 S 20. Paragraph 1 of subsection (d) of section 9111-b of the insurance 4 law, as amended by section 19 of part R of chapter 85 of the laws of 5 2002, is amended to read as follows: 6 (1) Interest. If any amount of tax is not paid on or before the date 7 prescribed for payment thereof in paragraph two of this subsection, 8 interest on such amount of tax at the underpayment rate set by the 9 commissioner of taxation and finance pursuant to section one thousand 10 ninety-six of the tax law, plus [three] ONE percentage [points] POINT, 11 shall be paid to the superintendent for the period from the date 12 prescribed for payment until the date paid. 13 S 21. Paragraph 1 of subsection (d) of section 9111-c of the insurance 14 law, as amended by section 20 of part R of chapter 85 of the laws of 15 2002, is amended to read as follows: 16 (1) Interest. If any amount of tax is not paid on or before the date 17 prescribed for payment thereof in paragraph two of this subsection, 18 interest on such amount of tax at the underpayment rate set by the 19 commissioner of taxation and finance pursuant to section one thousand 20 ninety-six of the tax law, plus [three] ONE percentage [points] POINT, 21 shall be paid to the superintendent for the period from the date 22 prescribed for payment until the date paid. 23 S 22. Subparagraph (i) of paragraph (a) of subdivision 3 of section 77 24 of the lien law, as amended by section 21 of part R of chapter 85 of the 25 laws of 2002, is amended to read as follows: 26 (i) Relief to compel an interim or final accounting by the trustee; to 27 identify and recover trust assets in the hands of any person together 28 with interest accrued thereon from the time of the diversion. Interest 29 shall be computed at the rate equal to the underpayment rate set by the 30 commissioner of taxation and finance pursuant to subsection (e) of 31 section one thousand ninety-six of the tax law, minus [two] FOUR 32 percentage points; to set aside as a diversion any unauthorized payment, 33 assignment or other transfer, whether voluntary or involuntary; to 34 enjoin a diversion; to recover damages for breach of trust or partic- 35 ipation therein; 36 S 23. Paragraph (a) of subdivision 8 of section 43.04 of the mental 37 hygiene law, as amended by section 22 of part R of chapter 85 of the 38 laws of 2002, is amended to read as follows: 39 (a) If an estimated payment made for a month to which an assessment 40 applies is less than ninety percent of the actual amount due for such 41 month, interest shall be due and payable to the commissioner of the 42 office of mental retardation and developmental disabilities on the 43 difference between the amount paid and the amount due from the day of 44 the month the estimated payment was due until the date of payment. The 45 rate of interest shall be twelve percent per annum or at the rate of 46 interest set by the commissioner of taxation and finance with respect to 47 underpayments of tax pursuant to subsection (e) of section one thousand 48 ninety-six of the tax law minus [two] FOUR percentage points. Interest 49 under this paragraph shall not be paid if the amount thereof is less 50 than one dollar. Interest, if not paid by the due date of the following 51 month's estimated payment, may be collected by the commissioner of the 52 office of mental retardation and developmental disabilities pursuant to 53 paragraph (c) of subdivision six of this section in the same manner as 54 an assessment pursuant to subdivision two of this section. S. 60--A 241 A. 160--A 1 S 24. Paragraph (a) of subdivision 8 of section 43.06 of the mental 2 hygiene law, as amended by section 23 of part R of chapter 85 of the 3 laws of 2002, is amended to read as follows: 4 (a) If an estimated payment made for a month to which an assessment 5 applies is less than ninety percent of the actual amount due for such 6 month, interest shall be due and payable to the commissioner on the 7 difference between the amount paid and the amount due from the day of 8 the month the estimated payment was due until the date of payment. The 9 rate of interest shall be twelve percent per annum or at the rate of 10 interest set by the commissioner of taxation and finance with respect to 11 underpayments of tax pursuant to subsection (e) of section one thousand 12 ninety-six of the tax law minus [two] FOUR percentage points. Interest 13 under this paragraph shall not be paid if the amount thereof is less 14 than one dollar. Interest, if not paid by the due date of the following 15 month's estimated payment, may be collected by the commissioner pursuant 16 to paragraph (c) of subdivision six of this section in the same manner 17 as an assessment pursuant to subdivision two of this section. 18 S 25. Subparagraph (i) of paragraph (c) of subdivision 20 of section 19 2807-c of the public health law, as amended by section 24 of part R of 20 chapter 85 of the laws of 2002, is amended to read as follows: 21 (i) Interest shall be due and payable to the commissioner by a general 22 hospital or by a payor paying directly to a pool on the difference 23 between the amount paid to a pool and the amount due to such pool by the 24 hospital or payor from the day of the month the payment was due until 25 the date of payment. The rate of interest shall be twelve percent per 26 annum or at the rate of interest set by the commissioner of taxation and 27 finance with respect to underpayments of tax pursuant to subsection (e) 28 of section one thousand ninety-six of the tax law minus [two] FOUR 29 percentage points. Interest under this paragraph shall not be paid if 30 the amount thereof is less than one dollar. Interest may be collected by 31 the commissioner in the same manner as an arrearage pursuant to this 32 subdivision. 33 S 26. Paragraph (a) of subdivision 8 of section 2807-d of the public 34 health law, as amended by section 25 of part R of chapter 85 of the laws 35 of 2002, is amended to read as follows: 36 (a) If an estimated payment made for a month to which an assessment 37 applies is less than ninety percent of the actual amount due for such 38 month, interest shall be due and payable to the commissioner on the 39 difference between the amount paid and the amount due from the day of 40 the month the estimated payment was due until the date of payment. The 41 rate of interest shall be twelve percent per annum or at the rate of 42 interest set by the commissioner of taxation and finance with respect to 43 underpayments of tax pursuant to subsection (e) of section one thousand 44 ninety-six of the tax law minus [two] FOUR percentage points. Interest 45 under this paragraph shall not be paid if the amount thereof is less 46 than one dollar. Interest, if not paid by the due date of the following 47 month's estimated payment, may be collected by the commissioner pursuant 48 to paragraph (c) of subdivision six of this section in the same manner 49 as an assessment pursuant to subdivision two of this section. 50 S 27. Subparagraph (i) of paragraph (c) of subdivision 4 of section 51 2807-f of the public health law, as amended by section 26 of part R of 52 chapter 85 of the laws of 2002, is amended to read as follows: 53 (i) If a payment made for a month to which a payment factor applies is 54 less than ninety percent of the actual amount due for such month, inter- 55 est shall be due and payable to the commissioner by a health maintenance 56 organization on the difference between the amount paid and the amount S. 60--A 242 A. 160--A 1 due from the day of the month the payment was due until the date of 2 payment. The rate of interest shall be twelve percent per annum or, if 3 greater, at the rate of interest set by the commissioner of taxation and 4 finance with respect to underpayments of tax pursuant to subsection (e) 5 of section one thousand ninety-six of the tax law minus [two] FOUR 6 percentage points. Interest under this paragraph shall not be paid if 7 the amount thereof is less than one dollar. 8 S 28. Paragraph (a) of subdivision 8 of section 2807-j of the public 9 health law, as amended by section 27 of part R of chapter 85 of the laws 10 of 2002, is amended to read as follows: 11 (a) If a payment made pursuant to this section or to section twenty- 12 eight hundred seven-s or twenty-eight hundred seven-t of this article 13 for a month to which an allowance applies is less than ninety percent of 14 the amount due or which the commissioner estimates, based on available 15 financial and statistical data, is due for such month, interest shall be 16 due and payable to the commissioner by a designated provider of 17 services, or by a third-party payor, other than a state governmental 18 agency, that has elected to pay an allowance directly, on the difference 19 between the amount paid and the amount due or estimated to be due from 20 the day of the month the payment was due until the date of payment. The 21 rate of interest shall be twelve percent per annum or, if greater, at 22 the rate of interest set by the commissioner of taxation and finance 23 with respect to underpayments of tax pursuant to subsection (e) of 24 section one thousand ninety-six of the tax law minus [two] FOUR percent- 25 age points. Interest under this paragraph shall not be paid if the 26 amount thereof is less than one dollar. Interest due from a designated 27 provider of services, if not paid by the due date of the following 28 month's payment, may be collected by the commissioner pursuant to para- 29 graph (c) of subdivision six of this section in the same manner as an 30 allowance pursuant to subdivision two of this section. 31 S 29. Paragraph (a) of subdivision 8 of section 3614-a of the public 32 health law, as amended by section 28 of part R of chapter 85 of the laws 33 of 2002, is amended to read as follows: 34 (a) If an estimated payment made for a month to which an assessment 35 applies is less than ninety percent of the actual amount due for such 36 month, interest shall be due and payable to the commissioner on the 37 difference between the amount paid and the amount due from the day of 38 the month the estimated payment was due until the date of payment. The 39 rate of interest shall be twelve percent per annum or at the rate of 40 interest set by the commissioner of taxation and finance with respect to 41 underpayments of tax pursuant to subsection (e) of section one thousand 42 ninety-six of the tax law minus [two] FOUR percentage points. Interest 43 under this paragraph shall not be paid if the amount thereof is less 44 than one dollar. Interest, if not paid by the due date of the following 45 month's estimated payment, may be collected by the commissioner pursuant 46 to paragraph (c) of subdivision six of this section in the same manner 47 as an assessment pursuant to subdivision two of this section. 48 S 30. Paragraph (a) of subdivision 8 of section 3614-b of the public 49 health law, as amended by section 29 of part R of chapter 85 of the laws 50 of 2002, is amended to read as follows: 51 (a) If an estimated payment made for a month to which assessment 52 applies is less than ninety percent of the actual amount due for such 53 month, interest shall be due and payable to the commissioner on the 54 difference between the amount paid and the amount due from the day of 55 the month the estimated payment was due until the date of the payment. 56 The rate of interest shall be twelve percent per annum or at the rate of S. 60--A 243 A. 160--A 1 interest set by the commissioner of taxation and finance with respect to 2 underpayment of tax pursuant to subsection (e) of section one thousand 3 ninety-six of the tax law minus [two] FOUR percentage points. Interest 4 under this paragraph shall not be paid if the amount thereof is less 5 than one dollar. Interest, if not paid by the due date of the following 6 month's estimated payment, may be collected by the commissioner pursuant 7 to paragraph (c) of subdivision six of this section in the same manner 8 as an assessment pursuant to subdivision two of this section. 9 S 31. Subdivision 2 of section 726 of the real property tax law, as 10 amended by section 30 of part R of chapter 85 of the laws of 2002, is 11 amended to read as follows: 12 2. Interest shall be paid on the amount of any refund made pursuant to 13 this section, computed from the date of payment of the tax or other levy 14 or portion thereof refunded; provided, however, that interest on the 15 amount of any such refund for the period after any final order determin- 16 ing the assessment reviewed to be excessive, unequal or unlawful, or 17 determining that real property was misclassified, notwithstanding that 18 an appeal in the proceeding or from such order may be pending, shall be 19 paid only from the date that application for audit and payment of such 20 refund shall have been duly made to the appropriate fiscal officer or 21 body. Such rate of interest shall be the overpayment rate set by the 22 commissioner of taxation and finance pursuant to subsection (j) of 23 section six hundred ninety-seven of the tax law, PLUS TWO PERCENTAGE 24 POINTS, and such interest rate shall not be greater than nine percent 25 per annum. Provided, the interest rate of the first calendar quarter 26 set forth in the first month of the calendar year shall be the annual 27 interest rate, and shall be the rate of interest prescribed by this 28 subdivision. If, as a result of an appeal, there shall be an increase in 29 the amount to be refunded, for the purposes of computing the interest 30 thereon the determination upon such appeal shall be deemed a determi- 31 nation only with respect to such increase. 32 S 32. Subdivision 2 of section 924-a of the real property tax law, as 33 amended by chapter 355 of the laws of 2003, is amended to read as 34 follows: 35 2. The rate of interest applicable to the third calendar quarter of 36 each year, as set by the commissioner of taxation and finance pursuant 37 to subparagraph (A) of paragraph two of subsection (j) of section six 38 hundred ninety-seven of the tax law, PLUS TWO PERCENTAGE POINTS, shall 39 be the rate of interest applicable to unpaid real property taxes for 40 purposes of this section. Such commissioner shall set such rate on or 41 before the fifteenth day of July in each year. Such rate shall be effec- 42 tive for all warrants issued for a collection period commencing on or 43 after the first day of September next succeeding the date the rate of 44 interest is set. Provided, however, the rate of interest prescribed by 45 this subdivision shall in no event be less than twelve per centum per 46 annum. The state board shall inform each affected municipality of any 47 change in the rate established pursuant to this subdivision. 48 S 33. Paragraph (a) of subdivision 7 of section 367-i of the social 49 services law, as amended by section 32 of part R of chapter 85 of the 50 laws of 2002, is amended to read as follows: 51 (a) If an estimated payment made for a month to which an assessment 52 applies is less than ninety percent of the actual amount due for such 53 month, interest shall be due and payable to the commissioner of health 54 on the difference between the amount paid and the amount due from the 55 day of the month the estimated payment was due until the date of 56 payment. The rate of interest shall be twelve percent per annum or at S. 60--A 244 A. 160--A 1 the rate of interest set by the commissioner of taxation and finance 2 with respect to underpayments of tax pursuant to subsection (e) of 3 section one thousand ninety-six of the tax law minus [two] FOUR percent- 4 age points. Interest under this paragraph shall not be paid if the 5 amount thereof is less than one dollar. Interest, if not paid by the due 6 date of the following month's estimated payment, may be collected by the 7 commissioner of health pursuant to paragraph (c) of subdivision five of 8 this section in the same manner as an assessment pursuant to subdivision 9 two of this section. 10 S 34. Subdivision 4 of section 18 of the state finance law, as amended 11 by section 33 of part R of chapter 85 of the laws of 2002, is amended to 12 read as follows: 13 4. Unless provided otherwise by contract, statute or regulation, a 14 debtor that fails to make payment of a debt within the period set forth 15 in subdivision three of this section shall pay, in addition to the 16 amount of debt, the greater of: (a) interest on the outstanding balance 17 of the debt, accruing on the date on which the receipt of the first 18 billing invoice or first notice occurs, computed at the underpayment 19 rate which is in effect on the date which the receipt of the first bill- 20 ing invoice or first billing notice occurs; or (b) a late payment charge 21 of ten dollars. For the purposes of this section, the underpayment rate 22 shall be that rate set by the commissioner of taxation and finance and 23 published in the state register pursuant to subsection (e) of section 24 one thousand ninety-six of the tax law minus [two] FOUR percentage 25 points. With respect to specific classes of debt collected by a state 26 agency, the director of the budget or official of a state agency so 27 designated by the director of the budget may approve the assessment of 28 interest or late payment charges at a date later than the thirtieth day 29 following such debtor's receipt of any billing invoice or notice sent by 30 the state agency. 31 S 35. Subdivisions (a) and (j) of section 11-1784 of the administra- 32 tive code of the city of New York, as amended by section 34 of part R of 33 chapter 85 of the laws of 2002, are amended to read as follows: 34 (a) General. If any amount of income tax is not paid on or before the 35 last date prescribed in this chapter for payment, interest on such 36 amount at the underpayment rate set by the commissioner of taxation and 37 finance pursuant to section 11-1797 OF THIS SUBCHAPTER, or if no rate is 38 set, at the rate of [six] SEVEN AND ONE-HALF percent per annum shall be 39 paid for the period from such last date to the date paid, whether or not 40 any extension of time for payment was granted. Interest under this 41 subdivision shall not be paid if the amount thereof is less than one 42 dollar. If the time for filing of a return of tax withheld by an employ- 43 er is extended, the employer shall pay interest for the period for which 44 the extension is granted and may not charge such interest to the employ- 45 ee. 46 (j) Interest on erroneous refund. Any portion of tax or other amount 47 which has been erroneously refunded, and which is recoverable by the 48 commissioner of taxation and finance, shall bear interest at the under- 49 payment rate set by such commissioner pursuant to section 11-1797 OF 50 THIS SUBCHAPTER, or if no rate is set, at the rate of [six] SEVEN AND 51 ONE-HALF percent per annum from the date of the payment of the refund, 52 but only if it appears that any part of the refund was induced by fraud 53 or a misrepresentation of a material fact. 54 S 36. Paragraph 1 of subdivision (c) of section 11-1785 of the admin- 55 istrative code of the city of New York, as amended by section 35 of part 56 R of chapter 85 of the laws of 2002, is amended to read as follows: S. 60--A 245 A. 160--A 1 (1) Addition to the tax. Except as otherwise provided in this subdivi- 2 sion and subdivision (d) OF THIS SECTION, in the case of any underpay- 3 ment of estimated tax by an individual, there shall be added to the tax 4 under this chapter for the taxable year an amount determined by applying 5 the underpayment rate established under section 11-1797 OF THIS SUBCHAP- 6 TER, or if no rate is set, at the rate of [six] SEVEN AND ONE-HALF 7 percent per annum, to the amount of the underpayment for the period of 8 the underpayment. Such period shall run from the due date for the 9 required installment to the earlier of the fifteenth day of the fourth 10 month following the close of the taxable year or, with respect to any 11 portion of the underpayment, the date on which such portion is paid. For 12 purposes of determining such date, a payment of estimated tax shall be 13 credited against unpaid required installments in the order in which such 14 installments are required to be paid. There shall be four required 15 installments for each taxable year, due on April fifteenth, June 16 fifteenth and September fifteenth of such taxable year and on January 17 fifteenth of the following taxable year. 18 S 37. Paragraph 1 of subdivision (j) of section 11-1797 of the admin- 19 istrative code of the city of New York, as amended by section 5 of part 20 M3 of chapter 62 of the laws of 2003, is amended to read as follows: 21 (1) Authority to set interest rates. The commissioner of taxation and 22 finance shall set the overpayment and underpayment rates of interest to 23 be paid pursuant to sections 11-1784, 11-1785 and 11-1788 OF THIS 24 SUBCHAPTER, but if no such rates of interest are set, such [rates] OVER- 25 PAYMENT RATE shall be deemed to be set at six percent per annum AND THE 26 UNDERPAYMENT RATE SHALL BE DEEMED TO BE SET AT SEVEN AND ONE-HALF 27 PERCENT PER ANNUM. Such rates shall be the rates prescribed by para- 28 graphs two and four of this subdivision, but the underpayment rate shall 29 not be less than [six] SEVEN AND ONE-HALF percent per annum. Any such 30 rates set by such commissioner shall apply to taxes, or any portion 31 thereof, which remain or become due or overpaid on or after the date on 32 which such rates become effective and shall apply only with respect to 33 interest computed or computable for periods or portions of periods 34 occurring in the period during which such rates are in effect. 35 S 38. Paragraph 2 of subdivision (j) of section 11-1797 of the admin- 36 istrative code of the city of New York, as amended by section 37 of part 37 R of chapter 85 of the laws of 2002, is amended to read as follows: 38 (2) Rates of interest. (A) Overpayment rate. The overpayment rate of 39 interest set under this subdivision shall be the [sum of (i) the] feder- 40 al short-term rate as provided under paragraph three of this subdivi- 41 sion[, plus (ii) two percentage points]. 42 (B) Underpayment rate. The underpayment rate of interest set under 43 this subdivision shall be the sum of (i) the federal short-term rate as 44 provided under paragraph three of this subdivision, plus (ii) [four] 45 FIVE AND ONE-HALF percentage points. 46 S 39. This act shall take effect immediately, and shall apply to the 47 interest chargeable or due on taxes or on any other amounts, or any 48 portion thereof, that remain or become due or overpaid on that day, 49 except that: 50 (a) Section ten of this act shall take effect on June 1, 2009, and 51 shall apply to refunds or credits claimed on returns or applications for 52 refund or credit filed on or after that date; 53 (b) Provided, however, that the amendments to paragraph (a) of subdi- 54 vision 8 of section 2807-j of the public health law made by section 55 twenty-eight of this act shall not affect the expiration of such section 56 and shall be deemed to expire therewith; and S. 60--A 246 A. 160--A 1 (c) Notwithstanding any other provision of law, for the calendar quar- 2 ter in which this act becomes a law, the department of taxation and 3 finance may provide appropriate general notice of the new interest rates 4 for that calendar quarter within twenty days after the date this act has 5 become a law, without needing to have notice of the rates published in 6 advance in the State Register, and shall cause such a notice to be 7 published in the State Register as soon as is practicable. 8 SUBPART N 9 Section 1. Section 1136 of the tax law is amended by adding a new 10 subdivision (i) to read as follows: 11 (I) (1) THE FOLLOWING PERSONS MUST FILE, IN ADDITION TO ANY OTHER 12 RETURN REQUIRED BY THIS CHAPTER, ANNUAL INFORMATION RETURNS WITH THE 13 COMMISSIONER PROVIDING THE INFORMATION SPECIFIED BELOW ABOUT THEIR TRAN- 14 SACTIONS WITH VENDORS, HOTEL OPERATORS, AND RECIPIENTS OF AMUSEMENT 15 CHARGES: 16 (A) EVERY INSURER LICENSED TO ISSUE MOTOR VEHICLE PHYSICAL DAMAGE OR 17 MOTOR VEHICLE PROPERTY DAMAGE LIABILITY INSURANCE FOR MOTOR VEHICLES 18 REGISTERED IN THIS STATE IF, DURING THE PERIOD COVERED BY THE RETURN, IT 19 HAS PAID CONSIDERATION OR AN AMOUNT UNDER AN INSURANCE CONTRACT FOR THE 20 SERVICING OR REPAIR OF A MOTOR VEHICLE ON BEHALF OF AN INSURED. FOR EACH 21 PERSON TO WHOM THE INSURER HAS PAID THE CONSIDERATION OR AMOUNT 22 DESCRIBED IN THE PRECEDING SENTENCE, THE RETURN MUST REPORT THE TOTAL 23 AMOUNT PAID FOR THAT PERIOD, ALONG WITH THE OTHER INFORMATION REQUIRED 24 BY PARAGRAPH TWO OF THIS SUBDIVISION. 25 (B) EVERY FRANCHISOR, AS DEFINED BY SECTION SIX HUNDRED EIGHTY-ONE OF 26 THE GENERAL BUSINESS LAW, THAT HAS AT LEAST ONE FRANCHISEE, AS DEFINED 27 BY SUBDIVISION FOUR OF SECTION SIX HUNDRED EIGHTY-ONE OF THE GENERAL 28 BUSINESS LAW, THAT IS REQUIRED TO BE REGISTERED UNDER SECTION ELEVEN 29 HUNDRED THIRTY-FOUR OF THIS PART. FOR EACH FRANCHISEE, THE RETURN MUST 30 INCLUDE THE GROSS SALES OF THE FRANCHISEE IN THIS STATE REPORTED BY THE 31 FRANCHISEE TO THE FRANCHISOR, THE TOTAL AMOUNT OF SALES BY THE FRANCHI- 32 SOR TO THE FRANCHISEE, AND ANY INCOME REPORTED TO THE FRANCHISOR BY EACH 33 FRANCHISEE, ALONG WITH THE INFORMATION REQUIRED BY PARAGRAPH TWO OF THIS 34 SUBDIVISION. 35 (C) EVERY WHOLESALER, AS DEFINED BY SECTION THREE OF THE ALCOHOLIC 36 BEVERAGE CONTROL LAW, IF IT HAS MADE A SALE OF AN ALCOHOLIC BEVERAGE, AS 37 DEFINED BY SECTION FOUR HUNDRED TWENTY OF THIS CHAPTER, WITHOUT COLLECT- 38 ING SALES OR USE TAX DURING THE PERIOD COVERED BY THE RETURN, EXCEPT (I) 39 A SALE TO A PERSON THAT HAS FURNISHED AN EXEMPT ORGANIZATION CERTIFICATE 40 TO THE WHOLESALER FOR THAT SALE; OR (II) A SALE TO ANOTHER WHOLESALER 41 WHOSE LICENSE UNDER THE ALCOHOLIC BEVERAGE CONTROL LAW DOES NOT ALLOW IT 42 TO MAKE RETAIL SALES OF THE ALCOHOLIC BEVERAGE. FOR EACH VENDOR, OPERA- 43 TOR, OR RECIPIENT TO WHOM THE WHOLESALER HAS MADE A SALE WITHOUT 44 COLLECTING SALES OR COMPENSATING USE TAX, THE RETURN MUST INCLUDE THE 45 TOTAL VALUE OF THOSE SALES MADE DURING THE PERIOD COVERED BY THE RETURN 46 (EXCEPTING THE SALES DESCRIBED IN CLAUSES (I) AND (II) OF THIS SUBPARA- 47 GRAPH) AND THE VENDOR'S, OPERATOR'S OR RECIPIENT'S STATE LIQUOR AUTHORI- 48 TY LICENSE NUMBER, ALONG WITH THE INFORMATION REQUIRED BY PARAGRAPH TWO 49 OF THIS SUBDIVISION. 50 (2) THE RETURNS REQUIRED BY PARAGRAPH ONE OF THIS SUBDIVISION MUST 51 ALSO INCLUDE, FOR EACH VENDOR, OPERATOR, OR RECIPIENT ABOUT WHOM INFOR- 52 MATION IS REQUIRED TO BE REPORTED UNDER SUCH PARAGRAPH, THE NAME AND 53 ADDRESS, AND THE CERTIFICATE OF AUTHORITY OR FEDERAL IDENTIFICATION 54 NUMBER, AND ANY OTHER INFORMATION REQUIRED BY THE COMMISSIONER. THE S. 60--A 247 A. 160--A 1 COMMISSIONER MAY, IN THE COMMISSIONER'S DISCRETION, REQUIRE THE REPORT- 2 ING OF LESS THAN ALL THE INFORMATION OTHERWISE REQUIRED TO BE REPORTED 3 BY THIS PARAGRAPH AND PARAGRAPH ONE OF THIS SUBDIVISION. 4 (3) THE RETURNS REQUIRED BY PARAGRAPH ONE OF THIS SUBDIVISION MUST BE 5 FILED ANNUALLY ON OR BEFORE MARCH TWENTIETH AND MUST COVER THE FOUR 6 SALES TAX QUARTERLY PERIODS IMMEDIATELY PRECEDING SUCH DATE. NOTWITH- 7 STANDING SECTION THREE HUNDRED FIVE OF THE STATE TECHNOLOGY LAW OR ANY 8 OTHER LAW TO THE CONTRARY, THE RETURNS MUST BE FILED ELECTRONICALLY IN 9 THE MANNER PRESCRIBED BY THE COMMISSIONER. 10 (4) ANY PERSON REQUIRED TO FILE A RETURN UNDER PARAGRAPH ONE OF THIS 11 SUBDIVISION MUST, ON OR BEFORE MARCH TWENTIETH, GIVE TO EACH VENDOR, 12 OPERATOR, OR RECIPIENT ABOUT WHOM INFORMATION IS REQUIRED TO BE REPORTED 13 IN THE RETURN THE INFORMATION PERTAINING TO THAT PERSON. THE COMMISSION- 14 ER MAY PRESCRIBE A FORM TO BE USED TO PROVIDE THE INFORMATION REQUIRED 15 TO BE GIVEN BY THIS PARAGRAPH. 16 (5) NOTHING IN THIS SUBDIVISION IS TO BE CONSTRUED TO LIMIT THE 17 PERSONS FROM WHOM THE COMMISSIONER CAN SECURE INFORMATION OR THE INFOR- 18 MATION THE COMMISSIONER CAN REQUIRE FROM THOSE PERSONS PURSUANT TO THE 19 COMMISSIONER'S AUTHORITY UNDER SECTION ELEVEN HUNDRED FORTY-THREE OF 20 THIS PART OR ANY OTHER PROVISION OF LAW. 21 S 2. Section 1145 of the tax law is amended by adding a new subdivi- 22 sion (i) to read as follows: 23 (I)(1) EVERY PERSON REQUIRED TO FILE AN INFORMATION RETURN BY SUBDIVI- 24 SION (I) OF SECTION ELEVEN HUNDRED THIRTY-SIX OF THIS PART WHO (A) FAILS 25 TO PROVIDE ANY OF THE INFORMATION REQUIRED BY PARAGRAPH ONE OR TWO OF 26 SUBDIVISION (I) OF SECTION ELEVEN HUNDRED THIRTY-SIX OF THIS PART FOR A 27 VENDOR, OPERATOR, OR RECIPIENT, OR WHO FAILS TO INCLUDE ANY SUCH INFOR- 28 MATION THAT IS TRUE AND CORRECT (WHETHER OR NOT SUCH A REPORT IS FILED) 29 FOR A VENDOR, OPERATOR, OR RECIPIENT, OR (B) FAILS TO PROVIDE THE INFOR- 30 MATION REQUIRED BY PARAGRAPH FOUR OF SUBDIVISION (I) OF SECTION ELEVEN 31 HUNDRED THIRTY-SIX OF THIS PART TO A VENDOR, OPERATOR, OR RECIPIENT 32 SPECIFIED IN PARAGRAPH FOUR OF SUBDIVISION (I) OF SECTION ELEVEN HUNDRED 33 THIRTY-SIX OF THIS PART, WILL, IN ADDITION TO ANY OTHER PENALTY PROVIDED 34 IN THIS ARTICLE OR OTHERWISE IMPOSED BY LAW, BE SUBJECT TO A PENALTY OF 35 FIVE HUNDRED DOLLARS FOR TEN OR FEWER FAILURES, AND UP TO FIFTY DOLLARS 36 FOR EACH ADDITIONAL FAILURE. 37 (2) EVERY PERSON FAILING TO FILE AN INFORMATION RETURN REQUIRED BY 38 SUBDIVISION (I) OF SECTION ELEVEN HUNDRED THIRTY-SIX OF THIS PART WITHIN 39 THE TIME REQUIRED BY SUBDIVISION (I) OF SECTION ELEVEN HUNDRED 40 THIRTY-SIX OF THIS PART WILL, IN ADDITION TO ANY OTHER PENALTY PROVIDED 41 FOR IN THIS ARTICLE OR OTHERWISE IMPOSED BY LAW, BE SUBJECT TO A PENALTY 42 IN AN AMOUNT NOT TO EXCEED TWO THOUSAND DOLLARS FOR EACH SUCH FAILURE, 43 PROVIDED THAT THE MINIMUM PENALTY UNDER THIS PARAGRAPH IS FIVE HUNDRED 44 DOLLARS. 45 (3) IN NO EVENT WILL THE PENALTY IMPOSED BY PARAGRAPH ONE, OR THE 46 AGGREGATE OF THE PENALTIES IMPOSED UNDER PARAGRAPHS ONE AND TWO OF THIS 47 SUBDIVISION, EXCEED TEN THOUSAND DOLLARS FOR ANY ANNUAL FILING PERIOD AS 48 DESCRIBED BY PARAGRAPH THREE OF SUBDIVISION (I) OF SECTION ELEVEN 49 HUNDRED THIRTY-SIX OF THIS PART. 50 (4) IF THE COMMISSIONER DETERMINES THAT ANY OF THE FAILURES THAT ARE 51 SUBJECT TO PENALTY UNDER THIS SUBDIVISION WAS ENTIRELY DUE TO REASONABLE 52 CAUSE AND NOT DUE TO WILLFUL NEGLECT, THE COMMISSIONER MUST REMIT THE 53 PENALTY IMPOSED UNDER THIS SUBDIVISION. THESE PENALTIES WILL BE DETER- 54 MINED, ASSESSED, COLLECTED, PAID, DISPOSED OF AND ENFORCED IN THE SAME 55 MANNER AS TAXES IMPOSED BY THIS ARTICLE AND ALL THE PROVISIONS OF THIS S. 60--A 248 A. 160--A 1 ARTICLE RELATING THERETO WILL BE DEEMED ALSO TO REFER TO THESE PENAL- 2 TIES. 3 S 3. This act shall take effect immediately, provided that the first 4 return required by subdivision (i) of section 1136 of the tax law, as 5 added by section one of this act, shall be due on or before September 6 20, 2009 and shall cover the period March 1, 2009 through August 31, 7 2009; provided, further, that the returns required to be filed by such 8 subdivision on or before March 20, 2010, shall cover the period from 9 September 1, 2009 to February 28, 2010. 10 SUBPART O 11 Section 1. Section 6 of the tax law is REPEALED and a new section 6 is 12 added to read as follows: 13 S 6. FILING OF TAX WARRANTS AND RELATED RECORDS IN THE DEPARTMENT OF 14 STATE. (A) DEFINITIONS. AS USED IN THIS SECTION: 15 (1) "DATE OF FILING" MEANS THE DATE ON WHICH THE DEPARTMENT OF STATE 16 ENTERS THE COMPLETE DATA RECEIVED FROM THE DEPARTMENT REGARDING A 17 WARRANT OR RELATED RECORD INTO THE DEPARTMENT OF STATE DATABASE FOR TAX 18 WARRANTS AND RELATED RECORDS FOR FILING; 19 (2) "ELECTRONIC" HAS THE SAME MEANING GIVEN SUCH TERM BY SUBDIVISION 20 ONE OF SECTION THREE HUNDRED TWO OF THE STATE TECHNOLOGY LAW; 21 (3) "RELATED RECORDS" MEANS ONE OR MORE OF THE FOLLOWING: SATISFAC- 22 TION-PIECE, VACATUR OF A WARRANT, AMENDED WARRANT, RELEASE OF LIEN, OR 23 OTHER DOCUMENT AUTHORIZED BY APPLICABLE LAW, RELATED TO A WARRANT, OTHER 24 THAN A WARRANT; 25 (4) "RELATED STATUTE" MEANS ANY LAW, ORDINANCE OR RESOLUTION ENACTED 26 PURSUANT TO THE AUTHORITY OF THIS CHAPTER, THE ENVIRONMENTAL CONSERVA- 27 TION LAW, THE RACING, PARI-MUTUEL WAGERING AND BREEDING LAW, OR ANY 28 OTHER LAW, THAT IMPOSES A TAX; 29 (5) "TAX" MEANS ANY TAX, SPECIAL ASSESSMENT, FEE, ADDITION TO TAX, 30 PENALTY, INTEREST, OR OTHER IMPOSITION THAT IS ADMINISTERED BY THE 31 COMMISSIONER, AS WELL AS CHILD SUPPORT AND COMBINED CHILD AND SPOUSAL 32 SUPPORT ARREARS COLLECTED BY THE COMMISSIONER PURSUANT TO THE PROVISIONS 33 OF SECTION ONE HUNDRED SEVENTY ONE-I OF THIS CHAPTER; AND 34 (6) "WARRANT" MEANS A WARRANT ISSUED BY THE COMMISSIONER TO COLLECT 35 ANY TAX. 36 (B) FILING IN THE DEPARTMENT OF STATE. (1) FILING OF TAX WARRANTS. 37 NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER OR A RELATED STATUTE TO 38 THE CONTRARY, ALL WARRANTS MUST BE FILED BY THE DEPARTMENT SOLELY IN THE 39 DEPARTMENT OF STATE. NO FEE WILL BE REQUIRED TO BE PAID FOR THESE 40 FILINGS. ON THE DATE OF FILING OF A WARRANT: 41 (1) THE AMOUNT OF THE TAX STATED IN THE WARRANT WILL BECOME A LIEN 42 UPON THE TITLE TO AND INTEREST IN ALL REAL, PERSONAL OR OTHER PROPERTY 43 LOCATED IN THE STATE, OWNED BY THE PERSON OR PERSONS NAMED IN THE 44 WARRANT. THE LIEN SO CREATED WILL 45 (A) ATTACH TO ALL REAL PROPERTY AND RIGHTS TO REAL PROPERTY LOCATED IN 46 THE STATE THAT IS OWNED BY THE PERSON OR PERSONS NAMED IN THE WARRANT AT 47 ANY TIME DURING THE PERIOD OF THE LIEN, INCLUDING ANY REAL PROPERTY OR 48 RIGHTS TO REAL PROPERTY LOCATED IN THE STATE THAT IS ACQUIRED BY THE 49 PERSON OR PERSONS AFTER THE LIEN ARISES; AND 50 (B) APPLY TO ALL PERSONAL OR OTHER PROPERTY AND RIGHTS TO PERSONAL OR 51 OTHER PROPERTY LOCATED IN THE STATE THAT IS OWNED BY THE PERSON OR 52 PERSONS NAMED IN THE WARRANT AT ANY TIME DURING THE PERIOD OF THE LIEN, 53 INCLUDING ANY PERSONAL OR OTHER PROPERTY OR RIGHTS TO PERSONAL OR OTHER S. 60--A 249 A. 160--A 1 PROPERTY LOCATED IN THE STATE THAT IS ACQUIRED BY THE PERSON OR PERSONS 2 AFTER THE LIEN ARISES. 3 (2) THE COMMISSIONER WILL, IN THE RIGHT OF THE PEOPLE OF THE STATE OF 4 NEW YORK, BE DEEMED TO HAVE OBTAINED A JUDGMENT AGAINST THE PERSON OR 5 PERSONS NAMED IN THE WARRANT FOR THE AMOUNT OF THE TAX STATED IN THE 6 WARRANT. 7 (C) IF THE DEPARTMENT FILED A WARRANT IN A COUNTY CLERK'S OFFICE 8 BEFORE OCTOBER FIRST, TWO THOUSAND NINE, THEN, AS OF OCTOBER FIRST, TWO 9 THOUSAND NINE AND THEREAFTER, THE DEPARTMENT WILL BE DEEMED TO HAVE 10 FILED THAT WARRANT IN THE COUNTY CLERK'S OFFICE IN EVERY OTHER COUNTY OF 11 THE STATE, AND THE COMMISSIONER WILL BE DEEMED TO HAVE OBTAINED A JUDG- 12 MENT IN EVERY OTHER COUNTY OF THE STATE AGAINST THE PERSON OR PERSONS 13 NAMED IN THAT WARRANT FOR THE AMOUNT OF THE TAX STATED IN THAT WARRANT. 14 BY OCTOBER FIRST, TWO THOUSAND NINE, THE COMMISSIONER MUST PROVIDE 15 NOTICE, IN A FORM PRESCRIBED BY THE COMMISSIONER, TO ALL PERSONS 16 AFFECTED BY THIS SUBDIVISION. 17 (D) ENFORCEMENT OF A JUDGMENT OBTAINED PURSUANT TO THE PROVISIONS OF 18 SUBDIVISION (B) OR (C) OF THIS SECTION WILL BE AS PRESCRIBED IN ARTICLE 19 FIFTY-TWO OF THE CIVIL PRACTICE LAW AND RULES. 20 (E) FILING OF RELATED RECORDS. (1) NOTWITHSTANDING ANY PROVISION OF 21 THIS CHAPTER OR A RELATED STATUTE TO THE CONTRARY, IF THE DEPARTMENT IS 22 FILING ANY RELATED RECORD, THE RECORD MUST BE FILED SOLELY IN THE 23 DEPARTMENT OF STATE; PROVIDED, HOWEVER, THAT ANY RELATED RECORD FILED ON 24 OR AFTER OCTOBER FIRST, TWO THOUSAND NINE THAT PERTAINS TO A WARRANT 25 FILED PRIOR TO OCTOBER FIRST, TWO THOUSAND NINE, MUST BE FILED IN THE 26 DEPARTMENT OF STATE. 27 (2) NO FEE WILL BE REQUIRED TO BE PAID FOR THE FILINGS DESCRIBED IN 28 PARAGRAPH ONE OF THIS SUBDIVISION. 29 (F) MANNER OF FILING WITH THE DEPARTMENT OF STATE AND PUBLIC NOTICE OF 30 FILINGS. THE DEPARTMENT MUST FILE WARRANTS AND RELATED RECORDS ELECTRON- 31 ICALLY WITH THE DEPARTMENT OF STATE. THE DEPARTMENT OF STATE WILL 32 PROVIDE ACKNOWLEDGEMENT TO THE DEPARTMENT OF THE DATE OF FILING OF THE 33 WARRANTS AND RELATED RECORDS. THE DEPARTMENT OF STATE MUST ALSO MAKE 34 INFORMATION REGARDING THE WARRANTS AND RELATED RECORDS, INCLUDING THE 35 DATE OF FILING, AVAILABLE TO THE PUBLIC. THIS INFORMATION MUST BE 36 SEARCHABLE ELECTRONICALLY BY THE NAME OF THE PERSON OR PERSONS LISTED IN 37 THE TAX WARRANT. WARRANT AND RELATED RECORD INFORMATION MUST BE MADE 38 AVAILABLE TO THE PUBLIC ELECTRONICALLY. 39 S 2. Subdivision 1 of section 174-a of the tax law, as added by chap- 40 ter 176 of the laws of 1997, is amended to read as follows: 41 1. General rule. Notwithstanding any provision of law to the contrary, 42 the provisions of the civil practice law and rules relating to the dura- 43 tion of a lien of a docketed judgment in and upon real property of a 44 judgment debtor, and the extension of [any such] THAT lien, [shall] WILL 45 apply to any warrant filed on behalf of the commissioner against a 46 taxpayer with [the clerk of a county wherein such taxpayer owns or has 47 an interest in real property] ANY RECORDING OR FILING OFFICER, INCLUDING 48 A COUNTY CLERK OR THE DEPARTMENT OF STATE, whether [such] THE warrant is 49 being enforced by a sheriff or an officer or employee of the department. 50 S 3. Section 279-b of the tax law is amended by adding a new closing 51 paragraph to read as follows: 52 NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE OF 53 FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND JUDG- 54 MENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN THESE 55 MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE. S. 60--A 250 A. 160--A 1 S 4. Section 289 of the tax law is amended by adding a new closing 2 paragraph to read as follows: 3 NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE OF 4 FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND JUDG- 5 MENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN THESE 6 MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE. 7 S 5. Section 431 of the tax law is amended by adding a new subdivision 8 4 to read as follows: 9 4. NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE 10 OF FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND 11 JUDGMENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN 12 THESE MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE. 13 S 6. Section 479 of the tax law is amended by adding a new closing 14 paragraph to read as follows: 15 NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE OF 16 FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND JUDG- 17 MENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN THESE 18 MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE. 19 S 7. Subdivisions 3, 4 and 5 of section 511 of the tax law are renum- 20 bered subdivisions 4, 5 and 6, and a new subdivision 3 is added to read 21 as follows: 22 3. NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE 23 OF FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND 24 JUDGMENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN 25 THESE MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE. 26 S 8. Section 692 of the tax law is amended by adding a new subsection 27 (j) to read as follows: 28 (J) NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE 29 OF FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND 30 JUDGMENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN 31 THESE MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE. 32 S 9. Subsection (j) of section 1092 of the tax law is relettered 33 subsection (k), and a new subsection (j) is added to read as follows: 34 (J) NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE 35 OF FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND 36 JUDGMENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN 37 THESE MATTERS FOR PURPOSES OF ANY TAX TO WHICH THIS ARTICLE APPLIES. 38 S 10. Subdivision (c) of section 1141 of the tax law is relettered 39 subdivision (d), and a new subdivision (c) is added to read as follows: 40 (C) NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE 41 OF FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND 42 JUDGMENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN 43 THESE MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE. 44 S 11. Section 1414 of the tax law is amended by adding a new subdivi- 45 sion (c) to read as follows: 46 (C) NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE 47 OF FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND 48 JUDGMENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN 49 THESE MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE. 50 S 12. This act shall take effect October 1, 2009; provided, however, 51 that: 52 (a) effective immediately, the department of taxation and finance and 53 the department of state are authorized to take any steps necessary to 54 implement the provisions of this act on its effective date on or before 55 such date; and S. 60--A 251 A. 160--A 1 (b) the provisions of this act shall apply to warrants and related 2 records pertaining to those warrants filed, or deemed to have been 3 filed, on or after October 1, 2009. 4 SUBPART P 5 Section 1. Subdivision (c) of section 1141 of the tax law, as amended 6 by chapter 27 of the laws of 1977, the third undesignated paragraph as 7 added by chapter 706 of the laws of 1980, is amended to read as follows: 8 (c) Whenever a person required to collect tax shall make a sale, 9 transfer, or assignment in bulk of any part or the whole of his OR HER 10 business assets, otherwise than in the ordinary course of business, the 11 purchaser, transferee or assignee shall at least ten days before taking 12 possession of the subject of said sale, transfer or assignment, or 13 paying therefor, notify the [tax commission] COMMISSIONER by registered 14 mail of the proposed sale and of the price, terms and conditions thereof 15 whether or not the seller, transferrer or assignor, has represented to, 16 or informed the purchaser, transferee or assignee that he OR SHE owes 17 any tax, PENALTY, OR INTEREST pursuant to this article, and whether or 18 not the purchaser, transferee, or assignee has knowledge that such 19 taxes, PENALTY, OR INTEREST are owing, and whether any such taxes, 20 PENALTY, OR INTEREST are in fact owing. 21 Whenever the purchaser, transferee or assignee shall fail to give 22 notice to the [tax commission] COMMISSIONER as required by the preceding 23 paragraph, or whenever the [tax commission] COMMISSIONER shall inform 24 the purchaser, transferee or assignee that a possible claim for such tax 25 or taxes, PENALTY, OR INTEREST exists, any sums of money, property or 26 choses in action, or other consideration, which the purchaser, transfer- 27 ee or assignee is required to transfer over to the seller, transferrer 28 or assignor shall be subject to a first priority right and lien for any 29 such taxes, PENALTY, OR INTEREST theretofore or thereafter determined to 30 be due from the seller, transferrer or assignor to the state, and the 31 purchaser, transferee or assignee is forbidden to transfer to the sell- 32 er, transferrer or assignor any such sums of money, property or choses 33 in action to the extent of the amount of the state's claim. Within nine- 34 ty days of receipt of the notice of the sale, transfer, or assignment 35 from the purchaser, transferee or assignee, the [tax commission] COMMIS- 36 SIONER shall give notice to the purchaser, transferee or assignee and to 37 the seller, transferrer, or assignor of the total amount of any tax or 38 taxes, PENALTY, OR INTEREST which the state claims to be due from the 39 seller, transferrer, or assignor to the state, and whenever the [tax 40 commission] COMMISSIONER shall fail to give such notice to the purchas- 41 er, transferee, or assignee and the seller, transferrer, or assignor 42 within ninety days from receipt of notice of the sale, transfer, or 43 assignment, such failure will release the purchaser, transferee or 44 assignee from any further obligation to withhold any sums of money, 45 property or choses in action, or other consideration, which the purchas- 46 er, transferee or assignee is required to transfer over to the seller, 47 transferrer or assignor[, except that with respect to pending matters 48 such ninety day periods shall not begin to run until ninety days after 49 the effective date of this provision]. For failure to comply with the 50 provisions of this subdivision the purchaser, transferee or assignee[, 51 in addition to being subject to the liabilities and remedies imposed 52 under the provisions of article six of the uniform commercial code,] 53 shall be personally liable for the payment to the state of any such 54 taxes, PENALTY, OR INTEREST theretofore or thereafter determined to be S. 60--A 252 A. 160--A 1 due to the state from the seller, transferrer or assignor, except that 2 the liability of the purchaser, transferee or assignee shall be limited 3 to an amount not in excess of the purchase price or fair market value of 4 the business assets sold, transferred or assigned to such purchaser, 5 transferee, or assignee, whichever is higher, and such liability may be 6 assessed and enforced in the same manner as the liability for tax under 7 this article. Upon receipt within the ninety days as aforesaid of the 8 notice of the total amount of the state's claim from the [tax commis- 9 sion] COMMISSIONER, and demand for payment thereof, the purchaser, 10 transferee or assignee may make payment of such claim to the state from 11 any sums of money, property, or choses in action withheld in accord with 12 the provisions of this paragraph, except that such payment shall be 13 limited to an amount not in excess of the purchase price or fair market 14 value of the business assets sold, transferred, or assigned to such 15 purchaser, transferee, or assignee, whichever is higher, and upon making 16 the payment, such purchaser, transferee, or assignee shall be relieved 17 of all liability for such amounts to the seller, transferrer, or assig- 18 nor, and such amounts paid to the state shall be deemed satisfaction of 19 the tax liability of the seller, transferrer, or assignor to the extent 20 of the amount of such payment. ANY REFERENCE IN ANY PROVISION OF LAW TO 21 THE LIABILITY OF A PURCHASER, TRANSFEREE, OR ASSIGNEE FOR TAX UNDER THIS 22 SUBDIVISION SHALL INCLUDE THE LIABILITY OF THE PURCHASER, TRANSFEREE OR 23 ASSIGNEE FOR PENALTY OR INTEREST UNDER THIS SUBDIVISION. 24 Where the liability of a purchaser, transferee or assignee, for the 25 payment to the state of any such taxes, PENALTY, OR INTEREST determined 26 to be due from the seller, transferrer or assignor, has been wholly paid 27 or satisfied or no longer exists, the [tax commission] COMMISSIONER 28 shall mail to such purchaser, transferee or assignee a notice, addressed 29 to his last known address, setting forth that such liability has been 30 wholly paid or satisfied or no longer exists. The [tax commission] 31 COMMISSIONER shall include in such notice the following additional 32 information: 33 (1) the name and last known address of the purchaser, transferee or 34 assignee; 35 (2) the amount of the lien paid, satisfied or vacated; and 36 (3) a statement to the effect that consumer reporting agencies must 37 delete from a credit file any reference to the particular tax lien with- 38 in thirty days of receipt from the purchaser, transferee or assignee of 39 such notice. Provided, however, no order or decree in a bankruptcy 40 proceeding shall be construed as giving rise to the requirement that the 41 notice provided for in this paragraph be given. 42 S 2. This act shall take effect June 1, 2009 and shall apply to sales, 43 transfers, or assignments in bulk occurring on or after that date. 44 S 2. Severability clause. If any clause, sentence, paragraph, subdivi- 45 sion, section or part of this act shall be adjudged by any court of 46 competent jurisdiction to be invalid, such judgment shall not affect, 47 impair, or invalidate the remainder thereof, but shall be confined in 48 its operation to the clause, sentence, paragraph, subdivision, section 49 or part thereof directly involved in the controversy in which such judg- 50 ment shall have been rendered. It is hereby declared to be the intent of 51 the legislature that this act would have been enacted even if such 52 invalid provisions had not been included herein. 53 S 3. This act shall take effect immediately provided, however, that 54 the applicable effective date of Subparts A through P of this act shall 55 be as specifically set forth in the last section of such Subparts. S. 60--A 253 A. 160--A 1 S 2. Severability clause. If any clause, sentence, paragraph, subdivi- 2 sion, section or part of this act shall be adjudged by any court of 3 competent jurisdiction to be invalid, such judgment shall not affect, 4 impair, or invalidate the remainder thereof, but shall be confined in 5 its operation to the clause, sentence, paragraph, subdivision, section 6 or part thereof directly involved in the controversy in which such judg- 7 ment shall have been rendered. It is hereby declared to be the intent of 8 the legislature that this act would have been enacted even if such 9 invalid provisions had not been included herein. 10 S 3. This act shall take effect immediately provided, however, that 11 the applicable effective date of Parts A through SS of this act shall be 12 as specifically set forth in the last section of such Parts.