1119. (a) Subject to the conditions and limitations provided for herein, a refund or credit shall be allowed for a tax paid pursuant to subdivision (a) of section eleven hundred five or section eleven hundred ten (1) on the sale or use of tangible personal property if the purchaser or user, in the performance of a contract, later incorporates that tangible personal property into real property located outside this state, (2) on the sale or use of tangible personal property purchased in bulk, or any portion thereof, which is stored and not used by the purchaser or user within this state if that property is subsequently reshipped by such purchaser or user to a point outside this state for use outside this state, (3) on the sale to or use by a contractor or subcontractor of tangible personal property if that property is used by him solely in the performance of a pre-existing lump sum or unit price construction contract, (4) on the sale or use within this state of tangible personal property, not purchased for resale, if the use of such property in this state is restricted to fabricating such property (including incorporating it into or assembling it with other tangible personal property), processing, printing or imprinting such property and such property is then shipped to a point outside this state for use outside this state, (5) on the sale to or use by a veterinarian of drugs or medicine if such drugs or medicine are used by such veterinarian in rendering services, which are exempt pursuant to subdivision (f) of section eleven hundred fifteen of this chapter, to livestock or poultry used in the production for sale of tangible personal property by farming or if such drugs or medicine are sold to a person qualifying for the exemption provided for in paragraph (6) of subdivision (a) of section eleven hundred fifteen of this chapter for use by such person on such livestock or poultry, or (6) on the sale of tangible personal property purchased for use in constructing, expanding or rehabilitating industrial or commercial real property (other than property used or to be used exclusively by one or more registered vendors primarily engaged in the retail sale of tangible personal property) located in an area designated as an empire zone pursuant to article eighteen-B of the general municipal law, but only to the extent that such property becomes an integral component part of the real property. (For the purpose of clause (3) of the preceding sentence, the term "pre-existing lump sum or unit price construction contract" shall mean a contract for the construction of improvements to real property under which the amount payable to the contractor or subcontractor is fixed without regard to the costs incurred by him in the performance thereof, and which (i) was irrevocably entered into prior to the date of the enactment of this article or the enactment of a law increasing the rate of tax imposed under this article, or (ii) resulted from the acceptance by a governmental agency of a bid accompanied by a bond or other performance guaranty which was irrevocably submitted prior to such date.) Where the tax on the sale or use of such tangible personal property has been paid to the vendor, to qualify for such refund or credit, such tangible personal property must be incorporated into real property as required in clause (1) above, reshipped as required in clause (2) above, used in the manner described in clauses (3), (4), (5) and (6) above within three years after the date such tax was payable to the tax commission by the vendor pursuant to section eleven hundred thirty-seven. Where the tax on the sale or use of such tangible personal property was paid by the applicant for the credit or refund directly to the tax commission, to qualify for such refund or credit, such tangible personal property must be incorporated into real property as required in clause (1) above, reshipped as required in clause (2) above, used in the manner described in clauses (3), (4), (5) and (6) above within three years after the date such tax was payable to the tax commission by such applicant pursuant to this article. An application for a refund or credit pursuant to this section must be filed with such commission within the time provided by subdivision (a) of section eleven hundred thirty-nine. Such application shall be in such form as the tax commission may prescribe. Where an application for credit has been filed, the applicant may immediately take such credit on the return which is due coincident with or immediately subsequent to the time that he files his application for credit. However, the taking of the credit on the return shall be deemed to be part of the application for credit and shall be subject to the provisions in respect to applications for credit in section eleven hundred thirty-nine as provided in subdivision (e) of such section. With respect to a sale or use described in clause (3) above where a pre-existing lump sum or unit price construction contract was irrevocably entered into prior to the date of the enactment of this article or the bid accompanied by the performance guaranty was irrevocably submitted to the governmental agency prior to such date, the purchaser or user shall be entitled to a refund or credit only of the amount by which the tax on such sale or use imposed under this article plus any tax imposed under the authority of article twenty-nine exceeds the amount computed by applying against such sale or use the local rate of tax, if any, in effect at the time such contract was entered into or such bid was submitted.
In the case of the enactment of a law increasing the rate of tax imposed by this article, the purchaser or user shall be entitled only to a refund or credit of the amount by which the increased tax on such sale or use imposed under this article plus any tax imposed under the authority of article twenty-nine exceeds the amount computed by applying against such sale or use the state and local rates of tax in effect at the time such contract was entered into or such bid was submitted.
(b) Subject to the conditions and limitations provided for in this subdivision, a refund or credit shall be allowed for a tax paid pursuant to subdivision (a) and paragraph three of subdivision (c) of section eleven hundred five, or section eleven hundred ten of this article and any tax imposed pursuant to the authority of article twenty-nine of this chapter on the sale to or use by an omnibus carrier described in this subdivision of any omnibus, and of parts, equipment, lubricants, motor fuel, diesel motor fuel, maintenance, servicing or repair purchased and used in the operation of any such omnibus by such carrier or on the sale to or use by a vessel operator described in this subdivision of a vessel with a seating capacity of more than twenty passengers used for the transportation on water of passengers for hire, and of parts, equipment, lubricants, diesel motor fuel, maintenance, servicing or repair purchased and used in the operation of any such vessel by such operator. Any such omnibus carrier or vessel operator must provide local transit service in this state and operate pursuant to a certificate of public convenience and necessity issued by the commissioner of transportation of this state or by a like officer or agency of the United States or pursuant to the contract, franchise or consent between such carrier or operator and a city having a population of more than one million inhabitants, or any agency of such city. The amount of such refund or credit shall be determined by first computing the local transit service percentage which shall be the proportion that, in the case of such a carrier, such carrier's vehicle mileage or, in the case of such an operator, such operator's vessel hours in local transit service in this state in the calendar year immediately preceding the end of the quarterly return period, prescribed by section eleven hundred thirty-six of this article, to which such refund or credit relates bears to such carrier's total mileage operated in this state in such year or such operator's total hours operated in this state in such year, as the case may be. An omnibus carrier or vessel operator which was not engaged in local transit service in the preceding calendar year shall determine such percentage with respect to its first four quarterly returns filed pursuant to section eleven hundred thirty-six of this article, by using the proportion that such carrier's vehicle mileage or such operator's vessel hours in local transit service in this state in the first three months of such operation bears to such carrier's total mileage or such operator's total hours operated in this state in such period. The amount of the refund or credit allowable on the combined state and local tax paid on such purchases or uses then shall be determined in accordance with the following table: If the local transit service The refund or credit is:
percentage is: Less than 10 percent None 10 percent 10 percent of such combined tax Greater than 10 percent but less 10 percent plus (the product of
than 70 percent 1.5 times each whole percent
in excess of 10 percent) of
such combined tax 70 percent or more 100 percent of such combined tax For purposes of this subdivision, local transit service, vehicle mileage, vessel hours, total mileage operated and total hours operated shall be defined by rule or regulation of the commissioner and records satisfactory to the commissioner shall be maintained by the carrier or operator. An application for a refund or credit pursuant to this subdivision must be filed with the commissioner within the time provided by subdivision (a) of section eleven hundred thirty-nine of this article. Such application shall be in such form as the commissioner may prescribe. Where an application for credit has been filed, the applicant may immediately take such credit on the return which is due coincident with or immediately subsequent to the time that the applicant files the application for credit. However, the taking of the credit on the return shall be deemed to be part of the application for credit and shall be subject to the provisions in respect to applications for credit in section eleven hundred thirty-nine of this article as provided in subdivision (e) of such section.
(c) A refund or credit equal to the amount of sales or compensating use tax imposed by this article and pursuant to the authority of article twenty-nine, and paid on the sale or use of tangible personal property, shall be allowed the purchaser where such property is later used by the purchaser in performing a service subject to tax under paragraph (1), (2), (3), (5), (7) or (8) of subdivision (c) of section eleven hundred five or under section eleven hundred ten and such property has become a physical component part of the property upon which the service is performed or has been transferred to the purchaser of the service in conjunction with the performance of the service subject to tax or if a contractor, subcontractor or repairman purchases tangible personal property and later makes a retail sale of such tangible personal property, the acquisition of which would not have been a sale at retail to him but for the second to last sentence of subparagraph (i) of paragraph (4) of subdivision (b) of section eleven hundred one. An application for the refund or credit provided for herein must be filed with the commissioner of taxation and finance within the time provided by subdivision (a) of section eleven hundred thirty-nine. Such application shall be in such form as the commissioner may prescribe. Where an application for credit has been filed, the applicant may immediately take such credit on the return which is due coincident with or immediately subsequent to the time that he files his application for credit. However, the taking of the credit on the return shall be deemed to be part of the application for credit. The procedure for granting or denying such applications for refund or credit and review of such determinations shall be as provided in subdivision (e) of section eleven hundred thirty-nine.
(d) (1) Subject to the conditions and limitations provided for in this section, a refund or credit will be allowed for taxes imposed on the retail sale of tangible personal property described in subdivision (a) of section eleven hundred five of this article, and on every sale of services described in subdivisions (b) and (c) of such section, and consideration given or contracted to be given for, or for the use of, such tangible personal property or services, where such tangible personal property or services are sold to a qualified empire zone enterprise or to a qualified entity that is also a tenant in or part of a New York state innovation hot spot as provided in section thirty-eight of this chapter or to a business located in a tax-free NY area approved pursuant to article twenty-one of the economic development law, provided that (A) such tangible personal property or tangible personal property upon which such a service has been performed or such service (other than a service described in subdivision (b) of section eleven hundred five of this article) is directly and predominantly, or such a service described in clause (A) or (D) of paragraph one of such subdivision (b) of section eleven hundred five of this article is directly and exclusively, used or consumed by (i) such qualified empire zone enterprise in an area designated as an empire zone pursuant to article eighteen-B of the general municipal law with respect to which such enterprise is certified pursuant to such article eighteen-B, or (ii) such qualified entity at its location in or as part of a New York state innovation hot spot, or (iii) such business at its location in such tax-free NY area, or (B) such a service described in clause (B) or (C) of paragraph one of subdivision (b) of section eleven hundred five of this article is delivered and billed to (i) such enterprise at an address in such empire zone or (ii) such qualified entity at its location in or as part of the New York state innovation hot spot, or (iii) such business at its location in such tax-free NY area, or (C) the enterprise's place of primary use of the service described in paragraph two of such subdivision (b) of section eleven hundred five is at an address in such empire zone or at its location in or as part of a New York state innovation hot spot, or at its location in such tax-free NY area; provided, further, that, in order for a motor vehicle, as defined in subdivision (c) of section eleven hundred seventeen of this article, or tangible personal property related to such a motor vehicle to be found to be used predominantly in such a zone, at least fifty percent of such motor vehicle's use shall be exclusively within such zone or at least fifty percent of such motor vehicle's use shall be in activities originating or terminating in such zone, or both; and either or both such usages shall be computed either on the basis of mileage or hours of use, at the discretion of such enterprise. For purposes of this subdivision, tangible personal property related to such a motor vehicle shall include a battery, diesel motor fuel, an engine, engine components, motor fuel, a muffler, tires and similar tangible personal property used in or on such a motor vehicle.
(2) Subject to the conditions and limitations provided for in this section, a refund or credit will be allowed for taxes imposed on the retail sale of, and consideration given or contracted to be given for, or for the use of, tangible personal property sold to a contractor, subcontractor or repairman for use in (A) erecting a structure or building of a qualified empire zone enterprise or a business located in a tax-free NY area approved pursuant to article twenty-one of the economic development law, (B) adding to, altering or improving real property, property or land of such an enterprise or such business, or (C) maintaining, servicing or repairing real property, property or land of such an enterprise or of such business, as the terms real property, property or land are defined in the real property tax law; provided, however, no credit or refund will be allowed under this paragraph unless such tangible personal property is to become an integral component part of such structure, building, real property, property or land located in an area designated as an empire zone pursuant to article eighteen-B of the general municipal law in, and with respect to which such enterprise is certified pursuant to such article eighteen-B, or in an area approved as a tax-free NY area pursuant to article twenty-one of the economic development law where such business is located.
(3) Except as otherwise provided by law, the refund or credit provided for in this subdivision will not apply to taxes imposed by paragraph ten of subdivision (c) of section eleven hundred five and eleven hundred seven of this article or to taxes imposed pursuant to the authority of article twenty-nine of this chapter.
(4) In those instances when the provisions of subdivision (w) of section nine hundred fifty-nine of the general municipal law are applicable, no refund or credit will be allowed under this subdivision unless the qualified empire zone enterprise has been issued an empire zone retention certificate.
(5) A taxpayer may not apply for a credit or refund under this subdivision more frequently than once a sales tax quarter, pursuant to subdivision (b) of section eleven hundred thirty-six of this article.
(6) Any reference in this chapter or in any local law, ordinance or resolution enacted pursuant to the authority of article twenty-nine of this chapter to former subdivision (z) of section eleven hundred fifteen of this article will be deemed to be a reference to this subdivision, and any such local law, ordinance or resolution which provides the exemptions described in former subdivision (z) of such section eleven hundred fifteen shall be deemed instead to provide the refunds and credits described in this subdivision.
(7) Notwithstanding any other provision in this article, article twenty-nine of this chapter, or any other law to the contrary, a credit or refund for any sale or use under this section shall not be allowed to a person that is first certified under article eighteen-B of the general municipal law on or after April first, two thousand nine, unless that sale or use is eligible for a credit or refund of the county or city sales and compensating use taxes imposed pursuant to the authority of subpart b of part I of article twenty-nine of this chapter.
(e) Subject to conditions and limitations provided in this subdivision, a room remarketer shall be allowed a refund or credit against the amount of tax collected and required to be remitted under section eleven hundred thirty-seven of this article in the amount of the tax it paid to an operator of a hotel under section eleven hundred four of this article, where applicable, and subdivision (e) of section eleven hundred five of this article. Provided, however, that, in order to qualify for a refund or credit under this subdivision for any sales tax quarterly period, the room remarketer must, for that quarter, (1) be registered for sales tax purposes under section eleven hundred thirty-four of this article; (2) collect the taxes imposed by section eleven hundred four of this article, where applicable, and subdivision (e) of section eleven hundred five of this article; and (3) furnish the certificate of authority number of the operator to whom the applicant paid the tax in its application for refund or credit if required on that form or upon request. Provided that if the room remarketer requests the operator's certificate of authority number and is not provided with that number, the room remarketer may satisfy this requirement by providing the operator's name, business address, telephone number, and the address of the hotel where the occupancy took place. An application for refund or credit under this subdivision must be filed with the commissioner within the time provided by subdivision (a) of section eleven hundred thirty-nine of this article. The application must be in the form prescribed by the commissioner. Where an application for credit has been filed, the applicant may immediately take the credit on the return that is due coincident with or immediately subsequent to the time that the applicant files the application for credit. However, the taking of the credit on the return is deemed to be part of the application for credit. The procedure for granting or denying the applications for refund or credit and review of those determinations shall be as provided in subdivision (e) of section eleven hundred thirty-nine of this article. An operator, including a room remarketer, who is paid tax by a room remarketer must upon request provide the remarketer with its certificate of authority number, provided that the operator's failure to do so does not change the requirement set forth in paragraph three of this subdivision.
* (f)(1) Subject to the conditions and limitations provided for in this section, a refund will be allowed for tax paid pursuant to subdivision (a) of section eleven hundred five, or section eleven hundred ten of this article, on the purchase or use of tangible personal property sold to a participant who has received a certificate of eligibility in the economic transformation and facility redevelopment program; provided that such tangible personal property has been used in constructing, expanding or rehabilitating industrial or commercial real property located in an area designated as an economic transformation area pursuant to article eighteen of the economic development law, but only to the extent that such tangible personal property becomes an integral component part of such real property. Such tangible personal property must be purchased, or contracted to be purchased, after the participant receives its certificate of eligibility and before the issuance of a certificate of occupancy and it must be used in a manner consistent with the participant's application for such constructed, expanded, or rehabilitated real property.
(2) Subject to the conditions and limitations provided for in this section, a refund will be allowed for taxes imposed on receipts from the retail sale of, and consideration given or contracted to be given for, or for the use of, tangible personal property sold to a contractor, subcontractor or repairman for use in (A) erecting a structure or building of a participant who has received a certificate of eligibility, or (B) adding to, altering or improving real property, property or land of such a participant, as the terms real property, property or land are defined in the real property tax law; provided, however, no refund will be allowed under this paragraph unless such tangible personal property has become an integral component part of such structure, building, real property, property or land located within an economic transformation area as defined by article eighteen of the economic development law in, and with respect to which such participant has been issued a certificate of eligibility pursuant to such article eighteen and only to the extent that such property is used in a manner consistent with the participant's application. Such tangible personal property must be in the contractor's inventory on or after the day the participant receives its certificate of eligibility, or be purchased or contracted to be purchased after the participant receives its certificate of eligibility, but such property must meet the conditions of the preceding sentence and be used before the issuance of a certificate of occupancy for such constructed, expanded, or rehabilitated real property.
(3) Notwithstanding any other provision of law, the refund provided for in this subdivision shall not apply to the taxes imposed by section eleven hundred seven or eleven hundred nine of this article or to any tax imposed pursuant to the authority of article twenty-nine of this chapter.
(4) Notwithstanding any other provision of law, where the tax on the sale or use of such tangible personal property has been paid to the vendor, to qualify for such refund, such tangible personal property must be incorporated into real property and used as required in paragraphs one and two of this subdivision within three years after the date such tax was payable to the commissioner by the vendor pursuant to section eleven hundred thirty-seven of this article. Where the tax on the sale or use of such tangible personal property was paid by the applicant for the refund directly to the commissioner, to qualify for such refund, such tangible personal property must be incorporated into real property and used in the manner described in paragraphs one and two of this subdivision within three years after the date such tax was payable to the commissioner by such applicant pursuant to this article. An application for a refund pursuant to this section must be filed with the commissioner within the time provided by subdivision (a) of section eleven hundred thirty-nine of this article. Such application shall be in such form as the commissioner may prescribe. This application will be the only means of applying for the refund allowed by this section; the applicant may not take this refund in any other manner, including the taking of a credit on any return due pursuant to section eleven hundred thirty-six of this article. A taxpayer may not apply for a refund under this subdivision more frequently than once a sales tax quarterly period as described in subdivision (b) of section eleven hundred thirty-six of this article.
(5) The terms "participant", "economic transformation area", and "certificate of eligibility" shall have the same meaning as those terms have in section four hundred of the economic development law.
* NB Repealed December 31, 2021
Last modified: February 3, 2019