A11156
STATE OF NEW YORK
________________________________________________________________________
11156
IN ASSEMBLY
April 18, 2002
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Eve, Greene)
-- read once and referred to the Committee on Ways and Means
AN ACT to amend the tax law, in relation to imposing a sales and compen-
sating use tax on legal, accounting, architectural, engineering, lawn
care, landscaping, and photographic services and equipment rental
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Subdivision (c) of section 1105 of the tax law is amended
2 by adding eight new paragraphs 10, 11, 12, 13, 14, 15, 16 and 17 to read
3 as follows:
4 (10) Professional legal services rendered by persons duly admitted to
5 the practice of law pursuant to article fifteen of the judiciary law;
6 provided that this paragraph shall not apply to such services when
7 rendered to a natural person in a capacity other than as a proprietor or
8 partner in a business enterprise.
9 (11) Professional accounting services rendered by persons licensed to
10 practice accounting, as defined by section seventy-four hundred one of
11 the education law.
12 (12) Architectural services rendered by persons licensed or permitted
13 to practice architecture, as defined in section seventy-three hundred
14 one of the education law, to the extent that paragraph seven of this
15 subdivision is not applicable thereto.
16 (13) Engineering services rendered by persons licensed or permitted to
17 practice engineering, as defined in section seventy-two hundred one of
18 the education law, to the extent that paragraph seven of this subdivi-
19 sion is not applicable thereto.
20 (14) Lawn care maintenance services.
21 (15) Landscaping services, to the extent that paragraphs seven,
22 twelve, and thirteen of this subdivision are not applicable thereto.
23 (16) Photography, where the consideration is paid either for the oper-
24 ation of the camera or for the resulting images therefrom; provided that
25 this paragraph shall not apply to any photography performed by an
26 employee for his employer in the regular course and scope of the employ-
27 er's business.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15592-01-2
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1 (17) The rental of all manner of equipment, other than fixtures appur-
2 tenant to real property or furniture furnished with real property, where
3 the party renting or leasing such fixtures or furnishings is also rent-
4 ing or leasing the real property, not otherwise subject to tax under
5 this article.
6 § 2. The closing paragraph of subdivision (c) of section 1105 of the
7 tax law, as amended by chapter 190 of the laws of 1990, is amended to
8 read as follows:
9 Wages, salaries and other compensation paid by an employer to an
10 employee for performing as an employee the services described in para-
11 graphs (1) through [(9)] (17) of this subdivision (c) are not receipts
12 subject to the taxes imposed under such subdivision.
13 § 3. Subdivision (a) of section 1110 of the tax law, as amended by
14 section 28 of part Y of chapter 63 of the laws of 2000, is amended to
15 read as follows:
16 (a) Except to the extent that property or services have already been
17 or will be subject to the sales tax under this article, there is hereby
18 imposed on every person a use tax for the use within this state on and
19 after June first, nineteen hundred seventy-one except as otherwise
20 exempted under this article, (A) of any tangible personal property
21 purchased at retail, (B) of any tangible personal property (other than
22 computer software used by the author or other creator) manufactured,
23 processed or assembled by the user, (i) if items of the same kind of
24 tangible personal property are offered for sale by him in the regular
25 course of business or (ii) if items are used as such or incorporated
26 into a structure, building or real property by a contractor, subcontrac-
27 tor or repairman in erecting structures or buildings, or building on, or
28 otherwise adding to, altering, improving, maintaining, servicing or
29 repairing real property, property or land, as the terms real property,
30 property or land are defined in the real property tax law, if items of
31 the same kind are not offered for sale as such by such contractor,
32 subcontractor or repairman or other user in the regular course of busi-
33 ness, (C) of any of the services described in paragraphs (1), (7) [and],
34 (8), (10), (11), (12), (13), (14), (15), (16), and (17) of subdivision
35 (c) of section eleven hundred five of this part, (D) of any tangible
36 personal property, however acquired, where not acquired for purposes of
37 resale, upon which any of the services described in paragraphs (2), [(3)
38 and] (7), (13), (15), (16), and (17) of subdivision (c) of section elev-
39 en hundred five of this part have been performed, (E) of any telephone
40 answering service described in subdivision (b) of section eleven hundred
41 five of this part, (F) of any computer software written or otherwise
42 created by the user if the user offers software of a similar kind for
43 sale as such or as a component part of other property in the regular
44 course of business, (G) of any prepaid telephone calling service, and
45 (H) of any gas or electricity described in subdivision (b) of section
46 eleven hundred five of this part.
47 § 4. Subdivision (d) of section 1115 of the tax law, as amended by
48 chapter 190 of the laws of 1990, is amended to read as follows:
49 (d) Services otherwise taxable under paragraph (1), (2), (3), (7)
50 [or], (8), (13), (15), (16), or (17) of subdivision (c) of section elev-
51 en hundred five shall be exempt from tax under this article if the
52 tangible property upon which the services were performed is delivered to
53 the purchaser outside this state for use outside this state.
54 § 5. Subdivision (c) of section 1119 of the tax law, as amended by
55 chapter 760 of the laws of 1992, is amended to read as follows:
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1 (c) A refund or credit equal to the amount of sales or compensating
2 use tax imposed by this article and pursuant to the authority of article
3 twenty-nine of this chapter, and paid on the sale or use of tangible
4 personal property, shall be allowed the purchaser where such property is
5 later used by the purchaser in performing a service subject to tax under
6 paragraph (1), (2), (3), (5), (7) [or], (8), (13), (15), (16), or (17)
7 of subdivision (c) of section eleven hundred five or under section elev-
8 en hundred ten of this article and such property has become a physical
9 component part of the property upon which the service is performed or
10 has been transferred to the purchaser of the service in conjunction with
11 the performance of the service subject to tax or if a contractor,
12 subcontractor or repairman purchases tangible personal property and
13 later makes a retail sale of such tangible personal property, the acqui-
14 sition of which would not have been a sale at retail to him but for the
15 second to last sentence of subparagraph (i) of paragraph (4) of subdivi-
16 sion (b) of section eleven hundred one of this article. An application
17 for the refund or credit provided for herein must be filed with the
18 commissioner [of taxation and finance] within the time provided by
19 subdivision (a) of section eleven hundred thirty-nine of this article.
20 Such application shall be in such form as the commissioner may
21 prescribe. Where an application for credit has been filed, the applicant
22 may immediately take such credit on the return which is due coincident
23 with or immediately subsequent to the time that he files his application
24 for credit. However, the taking of the credit on the return shall be
25 deemed to be part of the application for credit. The procedure for
26 granting or denying such applications for refund or credit and review of
27 such determinations shall be as provided in subdivision (e) of section
28 eleven hundred thirty-nine of this article.
29 § 6. Subdivision 4 of section 1131 of the tax law, as amended by
30 section 34 of part Y of chapter 63 of the laws of 2000, is amended to
31 read as follows:
32 (4) "Property and services the use of which is subject to tax" shall
33 include: (a) all property sold to a person within the state, whether or
34 not the sale is made within the state, the use of which property is
35 subject to tax under section eleven hundred ten of this article or will
36 become subject to tax when such property is received by or comes into
37 the possession or control of such person within the state; (b) all
38 information services, protective and detective services [and], interior
39 decorating and design services, legal services, accounting services,
40 architectural services, engineering services, lawn care services, land-
41 scaping services, photography services, and equipment rental services as
42 such services are described in subdivision (c) of section eleven hundred
43 five of this article, rendered to a person within the state, whether or
44 not such services are rendered from or at a location within the state;
45 (c) all services rendered to a person within the state, whether or not
46 such services are performed within the state, upon tangible personal
47 property the use of which is subject to tax under section eleven hundred
48 ten of this article or will become subject to tax when such property is
49 received by or comes into possession or control of such person within
50 the state; (d) all property sold by a person making sales described in
51 clause (F) of subparagraph (i) of paragraph eight of subdivision (b) of
52 section eleven hundred one of this article to a person described in such
53 clause (F) who purchases such property at retail, whether or not the
54 sale is made within the state; (e) all telephone answering service
55 rendered to a person within the state, whether or not such services are
56 performed within the state, the use of which is subject to tax under
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1 section eleven hundred ten of this article or will become subject to tax
2 when such service is received by or comes into possession or control of
3 such person within the state; (f) all prepaid telephone calling services
4 sold to a person within the state, whether or not the sale is made with-
5 in the state, the use of which services are subject to tax under section
6 eleven hundred ten of this article or will become subject to tax when
7 such services are received by or come into the possession or control of
8 such person within the state, and whether or not such services are
9 rendered from or at a location within the state; and (g) all gas or
10 electricity sold to a person within the state, whether or not the sale
11 is made within the state, the use of which is subject to tax under
12 section eleven hundred ten of this article or will become subject to tax
13 when it is received by or comes into the possession or control of such
14 person within the state, and whether or not it is rendered from or at a
15 location within the state.
16 § 7. This act shall take effect on October 1, 2002; provided that on
17 or before the effective date of this act, the commissioner of taxation
18 and finance is authorized to propose and adopt rules and regulations and
19 take any other steps necessary to implement this act on its effective
20 date; and provided further that the provisions of sections one through
21 six of this act shall first be implemented on the first day of a sales
22 tax quarterly period, as such period is described in subdivision (b) of
23 section 1136 of the tax law, beginning at least 60 days after the date
24 this act shall have become a law, or rules and regulations shall have
25 been adopted and other necessary steps shall have been taken, whichever
26 is later, and shall apply to services rendered and sales made on or
27 after that date although rendered or made under a prior contract.