Bill Text: NY A04442 | 2019-2020 | General Assembly | Introduced

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Bill Title: Relates to excise tax on telecommunication services (Part A); relates to temporary municipal assistance sales and compensating use taxes for cities of one million or more on telecommunication services (Part B).

Spectrum: Partisan Bill (Republican 15-0)

Status: (Introduced - Dead) 2020-07-17 - held for consideration in ways and means [A04442 Detail]

Download: New_York-2019-A04442-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          4442
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 4, 2019
                                       ___________
        Introduced  by  M.  of  A.  KOLB,  MONTESANO, RAIA, BLANKENBUSH, GIGLIO,
          DiPIETRO, FRIEND, BRABENEC -- Multi-Sponsored by -- M. of  A.  CROUCH,
          HAWLEY -- read once and referred to the Committee on Ways and Means
        AN  ACT  to amend the tax law, in relation to excise tax on telecommuni-
          cations services (Part A); and to amend the tax law,  in  relation  to
          temporary  municipal  assistance  sales and compensating use taxes for
          cities of one million or more on telecommunications services (Part B)
          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 components of legislation relating
     2  to  the  "mobile  tax  freedom  act". Each component is wholly contained
     3  within a Part identified as Parts A through B. The  effective  date  for
     4  each particular provision contained within such Part is set forth in the
     5  last section of such Part. Any provision in any section contained within
     6  a  Part,  including the effective date of the Part, which makes a refer-
     7  ence to a section "of this act",  when  used  in  connection  with  that
     8  particular  component,  shall  be deemed to mean and refer to the corre-
     9  sponding section of the Part in which it is found. Section three of this
    10  act sets forth the general effective date of this act.
    11                                   PART A
    12    Section 1. Subdivision (cc) of section 1115 of the tax law,  as  added
    13  by section 11 of part S of chapter 85 of the laws of 2002, is amended to
    14  read as follows:
    15    (cc)  Notwithstanding  any  other  provision  of  law to the contrary,
    16  receipts from the sale of mobile telecommunications service [by  a  home
    17  service provider] shall be exempt from the taxes imposed by subparagraph
    18  (B)  of  paragraph  one  and paragraph two of subdivision (b) of section
    19  eleven hundred five of this article [if  the  mobile  telecommunications

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04184-01-9
        A. 4442                             2

     1  customer's  place of primary use is within a taxing jurisdiction outside
     2  this state].
     3    §  2.    Paragraphs  (a) and (h) of subdivision 1 and paragraph (a) of
     4  subdivision 2 of section 186-e of the tax law, paragraph (a) of subdivi-
     5  sion 1 as amended by section 2 and paragraph (h)  of  subdivision  1  as
     6  added  by  section  3  of  part S of chapter 85 of the laws of 2002, and
     7  paragraph (a) of subdivision 2 as amended by section  2  of  part  P  of
     8  chapter 59 of the laws of 2015, are amended to read as follows:
     9    (a) [(1)] "Gross receipt" means the amount received in or by reason of
    10  any  sale, conditional or otherwise, of telecommunication services or in
    11  or by reason of the furnishing  of  telecommunication  services.  [Gross
    12  receipt from the sale of mobile telecommunications service provided by a
    13  home  service  provider  shall  include "charges for mobile telecommuni-
    14  cations service" as described in paragraph one  of  subdivision  (l)  of
    15  section  eleven  hundred eleven of this chapter, regardless of where the
    16  mobile  telecommunications  service  originates,  terminates  or  passes
    17  through.]  Gross  receipt  is  expressed in money, whether paid in cash,
    18  credit or property of any kind or nature, and shall be determined  with-
    19  out  any  deduction therefrom on account of the cost of the service sold
    20  or the cost of materials, labor or services used or other costs,  inter-
    21  est or discount paid, or any other expenses whatsoever except that there
    22  shall,  however,  be  allowed  a deduction for bad debts with respect to
    23  charges previously subjected to the tax  hereunder  when  the  debt  has
    24  become  worthless in accordance with generally accepted accounting prin-
    25  ciples consistently applied by the taxpayer. "Amount received"  for  the
    26  purpose of the definition of gross receipt, as the term gross receipt is
    27  used throughout this article, means the amount charged for the provision
    28  of a telecommunication service.
    29    [(2)  (A)  Any  charge  for  a  service or property billed by or for a
    30  mobile telecommunications customer's  home  service  provider  shall  be
    31  deemed  to be provided by such mobile telecommunications customer's home
    32  service provider.
    33    (B) Charges for mobile telecommunications service that are provided or
    34  deemed to be provided by a  mobile  telecommunications  customer's  home
    35  service  provider  shall be sourced to the taxing jurisdiction where the
    36  mobile telecommunications customer's place of primary  use  is  located,
    37  regardless  of  where  the mobile telecommunications service originates,
    38  terminates or passes through.]
    39    [(h) For the purpose of applying the provisions  of  this  section  to
    40  mobile  telecommunications  service,  the  following  terms when used in
    41  relation to mobile telecommunications service shall be defined  as  such
    42  terms are defined in section eleven hundred one of this chapter: "mobile
    43  telecommunications service," "mobile telecommunications customer," "home
    44  service  provider," "licensed service area," "reseller," "serving carri-
    45  er," "place of primary use" and "taxing jurisdiction".]
    46    (a) [(1)] There is hereby imposed an excise tax on the sale  of  tele-
    47  communication services[, except for the sale of mobile telecommunication
    48  services  that  are  subject to tax under subparagraph two of this para-
    49  graph, by any person which is a provider of telecommunication services,]
    50  to be paid by such person, at the rate of  three  and  one-half  percent
    51  prior  to  October  first, nineteen hundred ninety-eight, three and one-
    52  quarter  percent  from  October  first,  nineteen  hundred  ninety-eight
    53  through December thirty-first, nineteen hundred ninety-nine, and two and
    54  one-half  percent  on  and  after  January  first, two thousand of gross
    55  receipt from: (i) any intrastate telecommunication  services;  (ii)  any
    56  interstate  and  international  telecommunication  services  (other than
        A. 4442                             3
     1  interstate and international private telecommunication  services)  which
     2  originate  or  terminate  in  this  state  and  which  telecommunication
     3  services are charged to a service address in this state,  regardless  of
     4  where  the  amounts  charged  for such services are billed or ultimately
     5  paid; and (iii) interstate and international  private  telecommunication
     6  services, the gross receipt to which the tax shall apply shall be deter-
     7  mined as prescribed in subdivision three of this section.
     8    [(2) There is hereby imposed an excise tax on the sale of mobile tele-
     9  communication  services, by any person which is a provider of telecommu-
    10  nication services, to be paid by such person, at the  rate  of  two  and
    11  nine-tenths  percent  on  and  after  May first, two thousand fifteen of
    12  gross receipts from any mobile telecommunications service provided by  a
    13  home  service  provider  where  the mobile telecommunications customer's
    14  place of primary use is within this state.]
    15    § 3. Paragraph (b) of subdivision 2 of section 186-e of the tax law is
    16  amended by adding a new subparagraph 5 to read as follows:
    17    (5) Mobile telecommunications exclusion. The sale of mobile telecommu-
    18  nication service shall  in  no  event  constitute  a  telecommunications
    19  service,  and the receipts from the sale of such service are without the
    20  scope of the tax imposed by this section.
    21    § 4. Paragraph (b) of subdivision 1 of section 186-c of the  tax  law,
    22  as  amended by section 1 of part P of chapter 59 of the laws of 2015, is
    23  amended to read as follows:
    24    (b) [(1)] In addition to the surcharge imposed  by  paragraph  (a)  of
    25  this  subdivision,  there  is  hereby  imposed  a surcharge on the gross
    26  receipts from telecommunication services[, except for the gross receipts
    27  from mobile telecommunication services that are  subject  to  tax  under
    28  subparagraph two of this paragraph,] relating to the metropolitan commu-
    29  ter  transportation  district  at  the  rate of seventeen percent of the
    30  state tax rate under section one hundred eighty-six-e of  this  article.
    31  All  the definitions and other provisions of section one hundred eighty-
    32  six-e of this article shall apply to the tax imposed  by  this  subpara-
    33  graph with such modification and limitation as may be necessary (includ-
    34  ing   substituting   the  words  "metropolitan  commuter  transportation
    35  district" for "state" where appropriate) in order to adapt the  language
    36  of  such  section  one  hundred  eighty-six-e  of  this  article  to the
    37  surcharge imposed by this subparagraph within such metropolitan commuter
    38  transportation district so as to include (i) any intra-district telecom-
    39  munication services, (ii) any inter-district telecommunication  services
    40  which  originate  or  terminate  in  such  district and are charged to a
    41  service address therein regardless of where the amounts charged for such
    42  services are billed or ultimately paid, and (iii) as apportioned to such
    43  district, private telecommunication services. Provided however, such tax
    44  surcharge shall be calculated as if the tax imposed  under  section  one
    45  hundred eighty-six-e of this article were imposed at a rate of three and
    46  one-half percent.
    47    [(2)  In  addition  to  the surcharge imposed by paragraph (a) of this
    48  subdivision, there is hereby imposed a surcharge on the  gross  receipts
    49  from  mobile  telecommunication  services  relating  to the metropolitan
    50  commuter transportation district at the rate of  seven-tenths  and  two-
    51  hundredths  and one-thousandth percent on and after May first, two thou-
    52  sand fifteen. All the definitions and other provisions  of  section  one
    53  hundred  eighty-six-e  of this article shall apply to the tax imposed by
    54  this subparagraph with such modification and limitation as may be neces-
    55  sary (including substituting the words "metropolitan commuter  transpor-
    56  tation  district"  for  "state" where appropriate) in order to adapt the
        A. 4442                             4

     1  language of such section one hundred eighty-six-e of this article to the
     2  surcharge imposed by this subparagraph within such metropolitan commuter
     3  transportation district so as to include any  mobile  telecommunications
     4  service  provided by a home service provider where the mobile telecommu-
     5  nications customer's place of primary use is  within  such  metropolitan
     6  commuter transportation district.]
     7    §  5.  This  act  shall  take effect on the first day of the sales tax
     8  quarterly period, as described in subdivision (b) of section 1136 of the
     9  tax law, beginning at least ninety days after the date  this  act  shall
    10  have  become  a  law  and  shall apply in accordance with the applicable
    11  transitional provisions of sections 1106 and 1217 of the tax law.
    12                                   PART B
    13    Section 1. Subdivision (b) of section 1107 of the tax law  is  amended
    14  by adding a new clause 12 to read as follows:
    15    (12)  Except  as  otherwise provided by law, the exemption provided in
    16  subdivision (cc) of section  eleven  hundred  fifteen  of  this  article
    17  relating to mobile telecommunication services shall be applicable pursu-
    18  ant to a local law, ordinance or resolution adopted by a city subject to
    19  the  provisions  of  this  section.  Such  city is empowered to adopt or
    20  repeal such a local law,  ordinance  or  resolution.  Such  adoption  or
    21  repeal  shall also be deemed to amend any local law, ordinance or resol-
    22  ution enacted by such a city imposing taxes pursuant to the authority of
    23  subdivision (a) of section twelve hundred ten of this chapter.
    24    § 2. Paragraph 1 of subdivision (a) of section 1210 of the tax law, as
    25  amended by section 2 of part WW of chapter 60 of the laws  of  2016  and
    26  subparagraph (i) as separately amended by section 5 of part Z of chapter
    27  60 of the laws of 2016, is amended to read as follows:
    28    (1) Either, all of the taxes described in article twenty-eight of this
    29  chapter,  at  the same uniform rate, as to which taxes all provisions of
    30  the local laws, ordinances or resolutions imposing such taxes  shall  be
    31  identical,  except as to rate and except as otherwise provided, with the
    32  corresponding provisions in such  article  twenty-eight,  including  the
    33  definition  and  exemption  provisions  of  such  article, so far as the
    34  provisions of such article twenty-eight can be made  applicable  to  the
    35  taxes  imposed  by  such  city  or  county and with such limitations and
    36  special provisions as are set forth in this article. The  taxes  author-
    37  ized  under  this  subdivision  may  not  be imposed by a city or county
    38  unless the local law, ordinance or resolution imposes such taxes  so  as
    39  to  include  all  portions  and all types of receipts, charges or rents,
    40  subject to state tax under  sections  eleven  hundred  five  and  eleven
    41  hundred  ten  of  this  chapter, except as otherwise provided.   (i) Any
    42  local law, ordinance or resolution enacted by any city of less than  one
    43  million  or by any county or school district, imposing the taxes author-
    44  ized by this subdivision, shall, notwithstanding any provision of law to
    45  the contrary, exclude from the operation of such local taxes  all  sales
    46  of  tangible  personal  property  for  use  or  consumption directly and
    47  predominantly in the production  of  tangible  personal  property,  gas,
    48  electricity,  refrigeration  or steam, for sale, by manufacturing, proc-
    49  essing, generating, assembly, refining, mining or  extracting;  and  all
    50  sales of tangible personal property for use or consumption predominantly
    51  either  in  the  production  of tangible personal property, for sale, by
    52  farming or in a commercial horse boarding operation, or in both; and all
    53  sales of fuel sold for use in commercial aircraft and  general  aviation
    54  aircraft; and, unless such city, county or school district elects other-
        A. 4442                             5
     1  wise,  shall omit the provision for credit or refund contained in clause
     2  six of subdivision (a) or subdivision  (d)  of  section  eleven  hundred
     3  nineteen  of  this chapter.  (ii) Any local law, ordinance or resolution
     4  enacted  by  any  city,  county  or  school district, imposing the taxes
     5  authorized by this subdivision, shall omit the residential solar  energy
     6  systems  equipment and electricity exemption provided for in subdivision
     7  (ee), the commercial solar  energy  systems  equipment  and  electricity
     8  exemption  provided  for  in  subdivision (ii), the commercial fuel cell
     9  electricity generating systems equipment and  electricity  generated  by
    10  such equipment exemption provided for in subdivision (kk) and the cloth-
    11  ing  and footwear exemption provided for in paragraph thirty of subdivi-
    12  sion (a) of section eleven hundred fifteen of this chapter, unless  such
    13  city,  county or school district elects otherwise as to such residential
    14  solar energy systems equipment and electricity exemption,  such  commer-
    15  cial  solar  energy systems equipment and electricity exemption, commer-
    16  cial fuel cell electricity generating systems equipment and  electricity
    17  generated  by  such  equipment  exemption  or such clothing and footwear
    18  exemption.  Any local law, ordinance or resolution enacted by any  city,
    19  county  or school district, imposing the taxes authorized by this subdi-
    20  vision, shall  omit  the  mobile  telecommunication  services  exemption
    21  provided  for  in  subdivision (cc) of section eleven hundred fifteen of
    22  this chapter, unless such city, county or school district elects  other-
    23  wise; provided that if such a city having a population of one million or
    24  more  enacts the resolution described in subdivision (q) of this section
    25  or repeals such resolution, such resolution  or  repeal  shall  also  be
    26  deemed to amend any local law, ordinance or resolution enacted by such a
    27  city  imposing such taxes pursuant to the authority of this subdivision,
    28  whether or not such taxes are suspended at the time such city enacts its
    29  resolution pursuant to subdivision (q) of this section or at the time of
    30  such repeal; provided, further, that any such local  law,  ordinance  or
    31  resolution  and  section eleven hundred seven of this chapter, as deemed
    32  to be amended in the event a city of one million or more enacts a resol-
    33  ution pursuant to the authority of  subdivision  (q)  of  this  section,
    34  shall be further amended, as provided in section twelve hundred eighteen
    35  of  this  subpart,  so  that  the  wireless  telecommunications services
    36  exemption in any such local law, ordinance  or  resolution  or  in  such
    37  section  eleven  hundred seven of this chapter is the same as the mobile
    38  telecommunication services exemption  in  subdivision  (cc)  of  section
    39  eleven  hundred  fifteen of this chapter. (iii) Any local law, ordinance
    40  or resolution enacted by any city, county or school  district,  imposing
    41  the  taxes  authorized  by  this subdivision, shall omit the residential
    42  solar energy systems equipment and electricity exemption provided for in
    43  subdivision (ee), the commercial  solar  energy  systems  equipment  and
    44  electricity  exemption provided for in subdivision (ii) and the clothing
    45  and footwear exemption provided for in paragraph thirty  of  subdivision
    46  (a) of section eleven hundred fifteen of this chapter, unless such city,
    47  county or school district elects otherwise as to either such residential
    48  solar  energy  systems equipment and electricity exemption, such commer-
    49  cial solar energy systems equipment and electricity  exemption  or  such
    50  clothing and footwear exemption.
    51    §  3.  Subdivision  (d)  of section 1210 of the tax law, as amended by
    52  section 4 of part WW of chapter 60 of the laws of 2016,  is  amended  to
    53  read as follows:
    54    (d)  A local law, ordinance or resolution imposing any tax pursuant to
    55  this section, increasing or decreasing the rate of such  tax,  repealing
    56  or  suspending  such tax, exempting from such tax the energy sources and
        A. 4442                             6
     1  services described in paragraph three of subdivision (a) or of  subdivi-
     2  sion  (b)  of  this  section or changing the rate of tax imposed on such
     3  energy sources and services  or  providing  for  the  credit  or  refund
     4  described  in  clause  six  of subdivision (a) of section eleven hundred
     5  nineteen of this chapter, or electing or  repealing  the  exemption  for
     6  residential  solar  equipment  and  electricity  in  subdivision (ee) of
     7  section eleven  hundred  fifteen  of  this  [article]  chapter,  or  the
     8  exemption  for commercial solar equipment and electricity in subdivision
     9  (ii) of section eleven hundred fifteen of  this  [article]  chapter,  or
    10  electing or repealing the exemption for commercial fuel cell electricity
    11  generating systems equipment and electricity generated by such equipment
    12  in  subdivision  (kk)  of section eleven hundred fifteen of this article
    13  must go into effect only on one of the  following  dates:  March  first,
    14  June  first,  September  first or December first; provided, that a local
    15  law, ordinance or resolution providing for the  exemption  described  in
    16  paragraph thirty of subdivision (a) of section eleven hundred fifteen of
    17  this  chapter  or repealing any such exemption or a local law, ordinance
    18  or resolution providing for a refund or credit described in  subdivision
    19  (d) of section eleven hundred nineteen of this chapter or repealing such
    20  provision so provided must go into effect only on March first; provided,
    21  further,  that  a  local  law, ordinance or resolution providing for the
    22  exemption described  in  subdivision  (cc)  of  section  eleven  hundred
    23  fifteen  of this chapter or repealing any such exemption so provided and
    24  a resolution enacted pursuant to the authority  of  subdivision  (q)  of
    25  this  section  providing  such  exemption or repealing such exemption so
    26  provided may go into effect immediately.  No such local  law,  ordinance
    27  or  resolution  shall  be effective unless a certified copy of such law,
    28  ordinance or resolution is mailed by registered or certified mail to the
    29  commissioner at the commissioner's office in Albany at least ninety days
    30  prior to the date it is to become effective. However,  the  commissioner
    31  may  waive  and  reduce  such ninety-day minimum notice requirement to a
    32  mailing of such certified copy by registered or certified mail within  a
    33  period  of not less than thirty days prior to such effective date if the
    34  commissioner deems such action to be consistent with the  commissioner's
    35  duties  under  section  twelve  hundred  fifty  of  this article and the
    36  commissioner acts by resolution. Where the restriction provided  for  in
    37  section  twelve hundred twenty-three of this article as to the effective
    38  date of a tax and the notice requirement provided for therein are appli-
    39  cable and have not been waived, the restriction and  notice  requirement
    40  in section twelve hundred twenty-three of this article shall also apply.
    41    §  4.  Section 1210 of the tax law is amended by adding a new subdivi-
    42  sion (q) to read as follows:
    43    (q) Notwithstanding any other provision of state or local  law,  ordi-
    44  nance or resolution to the contrary: (1) Any city having a population of
    45  one million or more in which the taxes imposed by section eleven hundred
    46  seven  of  this chapter are in effect, acting through its local legisla-
    47  tive body, is hereby authorized and empowered to elect  to  provide  the
    48  exemption  from  such  taxes for the same mobile communications services
    49  exempt from state sales and compensating use taxes described in subdivi-
    50  sion (cc) of section eleven hundred fifteen of this chapter by  enacting
    51  a resolution in the form set forth in paragraph two of this subdivision;
    52  whereupon,  upon  compliance with the provisions of subdivisions (d) and
    53  (e) of this section, such enactment of such resolution shall  be  deemed
    54  to be an amendment to such section eleven hundred seven and such section
    55  eleven hundred seven shall be deemed to incorporate such exemption as if
        A. 4442                             7
     1  it  had  been  duly enacted by the state legislature and approved by the
     2  governor.
     3    (2)  Form  of resolution: Be it enacted by the (insert proper title of
     4  local legislative body) as follows:
     5    Section one.  Receipts  from  sales  of  and  consideration  given  or
     6  contracted  to  be  given  for  purchases  of  mobile telecommunications
     7  services exempt from state sales and compensating use taxes pursuant  to
     8  subdivision  (cc) of section eleven hundred fifteen of the tax law shall
     9  also be exempt from sales and compensating use  taxes  imposed  in  this
    10  jurisdiction.
    11    Section  two. This resolution shall take effect, (insert the date) and
    12  shall apply to sales made and uses occurring  on  and  after  that  date
    13  although made or occurring under a prior contract.
    14    §  5. The commissioner of taxation and finance is hereby authorized to
    15  implement the provisions of this act with respect to the elimination  of
    16  the imposition of sales tax, additional taxes, and supplemental taxes on
    17  wireless telecommunications services and all other taxes so addressed by
    18  this act.
    19    §  6.  This  act  shall  take effect on the first day of the sales tax
    20  quarterly period, as described in subdivision (b) of section 1136 of the
    21  tax law, beginning at least ninety days after the date  this  act  shall
    22  have  become  a  law  and  shall apply in accordance with the applicable
    23  transitional provisions of sections 1106 and 1217 of the tax law.
    24    § 2. Severability. If any clause, sentence, paragraph, section or part
    25  of this act shall be adjudged by any court of competent jurisdiction  to
    26  be  invalid  and  after  exhaustion  of all further judicial review, the
    27  judgment shall not affect, impair, or invalidate the remainder  thereof,
    28  but  shall  be  confined in its operation to the clause, sentence, para-
    29  graph, section or part of this act directly involved in the  controversy
    30  in which the judgment shall have been rendered.
    31    §  3.  This  act shall take effect immediately provided, however, that
    32  the applicable effective date of Parts A through B of this act shall  be
    33  as specifically set forth in the last section of such Parts.