Bill Text: NY A05103 | 2023-2024 | General Assembly | Introduced
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 16-0)
Status: (Introduced - Dead) 2024-01-03 - referred to ways and means [A05103 Detail]
Download: New_York-2023-A05103-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5103 2023-2024 Regular Sessions IN ASSEMBLY March 2, 2023 ___________ Introduced by M. of A. BARCLAY, J. M. GIGLIO, BLANKENBUSH, DiPIETRO, FRIEND, BRABENEC, WALSH, MILLER, MANKTELOW, GALLAHAN, LEMONDES, NORRIS, SIMPSON, TAGUE -- Multi-Sponsored by -- M. of A. GOODELL, 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 home17service 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 telecommunicationsEXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03799-01-3A. 5103 2 1customer's place of primary use is within a taxing jurisdiction outside2this 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. [Gross12receipt from the sale of mobile telecommunications service provided by a13home service provider shall include "charges for mobile telecommuni-14cations service" as described in paragraph one of subdivision (l) of15section eleven hundred eleven of this chapter, regardless of where the16mobile telecommunications service originates, terminates or passes17through.] 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 a30mobile telecommunications customer's home service provider shall be31deemed to be provided by such mobile telecommunications customer's home32service provider.33(B) Charges for mobile telecommunications service that are provided or34deemed to be provided by a mobile telecommunications customer's home35service provider shall be sourced to the taxing jurisdiction where the36mobile telecommunications customer's place of primary use is located,37regardless of where the mobile telecommunications service originates,38terminates or passes through.] 39 [(h) For the purpose of applying the provisions of this section to40mobile telecommunications service, the following terms when used in41relation to mobile telecommunications service shall be defined as such42terms are defined in section eleven hundred one of this chapter: "mobile43telecommunications service," "mobile telecommunications customer," "home44service provider," "licensed service area," "reseller," "serving carri-45er," "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 telecommunication48services that are subject to tax under subparagraph two of this para-49graph, 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 thanA. 5103 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-9communication services, by any person which is a provider of telecommu-10nication services, to be paid by such person, at the rate of two and11nine-tenths percent on and after May first, two thousand fifteen of12gross receipts from any mobile telecommunications service provided by a13home service provider where the mobile telecommunications customer's14place 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 receipts27from mobile telecommunication services that are subject to tax under28subparagraph 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 this48subdivision, there is hereby imposed a surcharge on the gross receipts49from mobile telecommunication services relating to the metropolitan50commuter transportation district at the rate of seven-tenths and two-51hundredths and one-thousandth percent on and after May first, two thou-52sand fifteen. All the definitions and other provisions of section one53hundred eighty-six-e of this article shall apply to the tax imposed by54this subparagraph with such modification and limitation as may be neces-55sary (including substituting the words "metropolitan commuter transpor-56tation district" for "state" where appropriate) in order to adapt theA. 5103 4 1language of such section one hundred eighty-six-e of this article to the2surcharge imposed by this subparagraph within such metropolitan commuter3transportation district so as to include any mobile telecommunications4service provided by a home service provider where the mobile telecommu-5nications customer's place of primary use is within such metropolitan6commuter 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 5 of part J of chapter 59 of the laws of 2021, is 26 amended to read as follows: 27 (1) Either, all of the taxes described in article twenty-eight of this 28 chapter, at the same uniform rate, as to which taxes all provisions of 29 the local laws, ordinances or resolutions imposing such taxes shall be 30 identical, except as to rate and except as otherwise provided, with the 31 corresponding provisions in such article twenty-eight, including the 32 definition and exemption provisions of such article, so far as the 33 provisions of such article twenty-eight can be made applicable to the 34 taxes imposed by such city or county and with such limitations and 35 special provisions as are set forth in this article. The taxes author- 36 ized under this subdivision may not be imposed by a city or county 37 unless the local law, ordinance or resolution imposes such taxes so as 38 to include all portions and all types of receipts, charges or rents, 39 subject to state tax under sections eleven hundred five and eleven 40 hundred ten of this chapter, except as otherwise provided. Notwith- 41 standing the foregoing, a tax imposed by a city or county authorized 42 under this subdivision shall not include the tax imposed on charges for 43 admission to race tracks and simulcast facilities under subdivision (f) 44 of section eleven hundred five of this chapter. (i) Any local law, ordi- 45 nance or resolution enacted by any city of less than one million or by 46 any county or school district, imposing the taxes authorized by this 47 subdivision, shall, notwithstanding any provision of law to the contra- 48 ry, exclude from the operation of such local taxes all sales of tangible 49 personal property for use or consumption directly and predominantly in 50 the production of tangible personal property, gas, electricity, refrig- 51 eration or steam, for sale, by manufacturing, processing, generating, 52 assembly, refining, mining or extracting; and all sales of tangible 53 personal property for use or consumption predominantly either in the 54 production of tangible personal property, for sale, by farming or in aA. 5103 5 1 commercial horse boarding operation, or in both; and all sales of fuel 2 sold for use in commercial aircraft and general aviation aircraft; and, 3 unless such city, county or school district elects otherwise, shall omit 4 the provision for credit or refund contained in clause six of subdivi- 5 sion (a) or subdivision (d) of section eleven hundred nineteen of this 6 chapter. (ii) Any local law, ordinance or resolution enacted by any 7 city, county or school district, imposing the taxes authorized by this 8 subdivision, shall omit the residential solar energy systems equipment 9 and electricity exemption provided for in subdivision (ee), the commer- 10 cial solar energy systems equipment and electricity exemption provided 11 for in subdivision (ii), the commercial fuel cell electricity generating 12 systems equipment and electricity generated by such equipment exemption 13 provided for in subdivision (kk) and the clothing and footwear exemption 14 provided for in paragraph thirty of subdivision (a) of section eleven 15 hundred fifteen of this chapter, unless such city, county or school 16 district elects otherwise as to such residential solar energy systems 17 equipment and electricity exemption, such commercial solar energy 18 systems equipment and electricity exemption, commercial fuel cell elec- 19 tricity generating systems equipment and electricity generated by such 20 equipment exemption or such clothing and footwear exemption. Any local 21 law, ordinance or resolution enacted by any city, county or school 22 district, imposing the taxes authorized by this subdivision, shall omit 23 the mobile telecommunication services exemption provided for in subdivi- 24 sion (cc) of section eleven hundred fifteen of this chapter, unless such 25 city, county or school district elects otherwise; provided that if such 26 a city having a population of one million or more enacts the resolution 27 described in subdivision (p) of this section or repeals such resolution, 28 such resolution or repeal shall also be deemed to amend any local law, 29 ordinance or resolution enacted by such a city imposing such taxes 30 pursuant to the authority of this subdivision, whether or not such taxes 31 are suspended at the time such city enacts its resolution pursuant to 32 subdivision (p) of this section or at the time of such repeal; provided, 33 further, that any such local law, ordinance or resolution and section 34 eleven hundred seven of this chapter, as deemed to be amended in the 35 event a city of one million or more enacts a resolution pursuant to the 36 authority of subdivision (p) of this section, shall be further amended, 37 as provided in section twelve hundred eighteen of this subpart, so that 38 the wireless telecommunications services exemption in any such local 39 law, ordinance or resolution or in such section eleven hundred seven of 40 this chapter is the same as the mobile telecommunication services 41 exemption in subdivision (cc) of section eleven hundred fifteen of this 42 chapter. (iii) Any local law, ordinance or resolution enacted by any 43 city, county or school district, imposing the taxes authorized by this 44 subdivision, shall omit the residential solar energy systems equipment 45 and electricity exemption provided for in subdivision (ee), the commer- 46 cial solar energy systems equipment and electricity exemption provided 47 for in subdivision (ii) and the clothing and footwear exemption provided 48 for in paragraph thirty of subdivision (a) of section eleven hundred 49 fifteen of this chapter, unless such city, county or school district 50 elects otherwise as to either such residential solar energy systems 51 equipment and electricity exemption, such commercial solar energy 52 systems equipment and electricity exemption or such clothing and foot- 53 wear exemption. 54 § 3. Subdivision (d) of section 1210 of the tax law, as amended by 55 section 4 of part WW of chapter 60 of the laws of 2016, is amended to 56 read as follows:A. 5103 6 1 (d) A local law, ordinance or resolution imposing any tax pursuant to 2 this section, increasing or decreasing the rate of such tax, repealing 3 or suspending such tax, exempting from such tax the energy sources and 4 services described in paragraph three of subdivision (a) or of subdivi- 5 sion (b) of this section or changing the rate of tax imposed on such 6 energy sources and services or providing for the credit or refund 7 described in clause six of subdivision (a) of section eleven hundred 8 nineteen of this chapter, or electing or repealing the exemption for 9 residential solar equipment and electricity in subdivision (ee) of 10 section eleven hundred fifteen of this [article] chapter, or the 11 exemption for commercial solar equipment and electricity in subdivision 12 (ii) of section eleven hundred fifteen of this [article] chapter, or 13 electing or repealing the exemption for commercial fuel cell electricity 14 generating systems equipment and electricity generated by such equipment 15 in subdivision (kk) of section eleven hundred fifteen of this article 16 must go into effect only on one of the following dates: March first, 17 June first, September first or December first; provided, that a local 18 law, ordinance or resolution providing for the exemption described in 19 paragraph thirty of subdivision (a) of section eleven hundred fifteen of 20 this chapter or repealing any such exemption or a local law, ordinance 21 or resolution providing for a refund or credit described in subdivision 22 (d) of section eleven hundred nineteen of this chapter or repealing such 23 provision so provided must go into effect only on March first; provided, 24 further, that a local law, ordinance or resolution providing for the 25 exemption described in subdivision (cc) of section eleven hundred 26 fifteen of this chapter or repealing any such exemption so provided and 27 a resolution enacted pursuant to the authority of subdivision (p) of 28 this section providing such exemption or repealing such exemption so 29 provided may go into effect immediately. No such local law, ordinance 30 or resolution shall be effective unless a certified copy of such law, 31 ordinance or resolution is mailed by registered or certified mail to the 32 commissioner at the commissioner's office in Albany at least ninety days 33 prior to the date it is to become effective. However, the commissioner 34 may waive and reduce such ninety-day minimum notice requirement to a 35 mailing of such certified copy by registered or certified mail within a 36 period of not less than thirty days prior to such effective date if the 37 commissioner deems such action to be consistent with the commissioner's 38 duties under section twelve hundred fifty of this article and the 39 commissioner acts by resolution. Where the restriction provided for in 40 section twelve hundred twenty-three of this article as to the effective 41 date of a tax and the notice requirement provided for therein are appli- 42 cable and have not been waived, the restriction and notice requirement 43 in section twelve hundred twenty-three of this article shall also apply. 44 § 4. Section 1210 of the tax law is amended by adding a new subdivi- 45 sion (p) to read as follows: 46 (p) Notwithstanding any other provision of state or local law, ordi- 47 nance or resolution to the contrary: (1) Any city having a population of 48 one million or more in which the taxes imposed by section eleven hundred 49 seven of this chapter are in effect, acting through its local legisla- 50 tive body, is hereby authorized and empowered to elect to provide the 51 exemption from such taxes for the same mobile communications services 52 exempt from state sales and compensating use taxes described in subdivi- 53 sion (cc) of section eleven hundred fifteen of this chapter by enacting 54 a resolution in the form set forth in paragraph two of this subdivision; 55 whereupon, upon compliance with the provisions of subdivisions (d) and 56 (e) of this section, such enactment of such resolution shall be deemedA. 5103 7 1 to be an amendment to such section eleven hundred seven and such section 2 eleven hundred seven shall be deemed to incorporate such exemption as if 3 it had been duly enacted by the state legislature and approved by the 4 governor. 5 (2) Form of resolution: Be it enacted by the (insert proper title of 6 local legislative body) as follows: 7 Section one. Receipts from sales of and consideration given or 8 contracted to be given for purchases of mobile telecommunications 9 services exempt from state sales and compensating use taxes pursuant to 10 subdivision (cc) of section eleven hundred fifteen of the tax law shall 11 also be exempt from sales and compensating use taxes imposed in this 12 jurisdiction. 13 Section two. This resolution shall take effect, (insert the date) and 14 shall apply to sales made and uses occurring on and after that date 15 although made or occurring under a prior contract. 16 § 5. The commissioner of taxation and finance is hereby authorized to 17 implement the provisions of this act with respect to the elimination of 18 the imposition of sales tax, additional taxes, and supplemental taxes on 19 wireless telecommunications services and all other taxes so addressed by 20 this act. 21 § 6. This act shall take effect on the first day of the sales tax 22 quarterly period, as described in subdivision (b) of section 1136 of the 23 tax law, beginning at least ninety days after the date this act shall 24 have become a law and shall apply in accordance with the applicable 25 transitional provisions of sections 1106 and 1217 of the tax law. 26 § 2. Severability. If any clause, sentence, paragraph, section or part 27 of this act shall be adjudged by any court of competent jurisdiction to 28 be invalid and after exhaustion of all further judicial review, the 29 judgment shall not affect, impair, or invalidate the remainder thereof, 30 but shall be confined in its operation to the clause, sentence, para- 31 graph, section or part of this act directly involved in the controversy 32 in which the judgment shall have been rendered. 33 § 3. This act shall take effect immediately provided, however, that 34 the applicable effective date of Parts A through B of this act shall be 35 as specifically set forth in the last section of such Parts.
