Current through Register Vol. 46, No. 12, March 20, 2024
Tax Law, § 1105-A
(a)
Reduction in rate.
(1) Section
1105-A of the Tax Law provides for a
reduction in the four-percent statewide sales tax rate imposed under sections
1105(a) and 1105(b) of the Tax Law and in the four-percent statewide
compensating use tax rate imposed under section
1110(a) of the Tax Law, as
set forth in subdivision (c) of this section, on the receipts from every sale,
other than for resale, used for residential purposes of:
(i) fuel oil (except diesel motor
fuel);
(ii) coal;
(iii) wood (for heating purposes
only);
(iv) propane (except when
sold in containers of less than 100 pounds);
(v) natural gas;
(vi) electricity;
(vii) steam; and
(viii) gas, electric and steam services.
For purposes of this regulation, the term energy
sources is used to describe the above- mentioned tangible personal
property and services.
(2) The reduction in the sales and
compensating use tax rates does not apply to those tax rates imposed by
localities, pursuant to article 29 of the Tax Law, nor to the four-percent
sales and compensating use tax rate in New York City which is imposed by
section
1107 of the Tax Law. The applicable tax
rates imposed by localities may be obtained from the Taxpayer's Assistance
Bureau at the State Campus in Albany or from any district tax office.
(3) Nothing in this section shall be deemed
to exempt from the tax imposed under section
1105 of the Tax Law any transaction which
may not be subject to the reduced tax rates set forth in this section and under
section
1105-A of the Tax Law.
(b)
Transitional
provisions.
(1) All sales of energy
sources shall be subject to tax at the rate in effect on the date of delivery
or transfer of possession, even if made or rendered under a contract entered
into prior to the effective date of the tax rate reduction.
(2) Where energy sources are sold on a
monthly, quarterly or other term basis and the bills for such sales are based
on meter readings, the tax rate reduction shall not apply unless more than one
half of the days included in the billing period are for days on and after the
effective date of the tax rate reduction.
(c)
Tax rates and effective
dates.
The reduced State tax rates and effective dates are:
(1) 0 percent commencing on and after October
1, 1980;
(2) 21/2 percent
commencing January 1, 1980 and ending September 30, 1980; and
(3) 3 percent commencing January 1, 1979 and
ending December 31, 1979.
(d)
Definitions.
(1) The term residential
purposes means any use of a structure or part of a structure as a
place of abode, maintained by or for a person, whether or not owned by such
person, on other than a temporary or transient basis with the exclusion of
accommodations subject to tax under subdivision (e) of section
1105 of the Tax Law.
(2) The term nonresidential
purposes means any use other than for residential purposes, as defined
in paragraph (1) of this subdivision, including any use in the conduct of a
trade, business or profession, whether such trade, business or profession is
carried on by the owner of the structure or some other person.
(3) The term common area
means any area of the premises of a structure used without distinction for both
residential and nonresidential purposes.
(e)
Certification and
allocation.
(1) Purchases of energy
sources used exclusively for residential purposes shall receive the reduced tax
rate without the necessity of certification.
(2) Where energy sources billed on a single
meter or in a lump sum are used for both residential and nonresidential
purposes, and the residential purposes constitute 75 percent or more of the
usage, the entire amount billed shall be taxed at the reduced sales tax rate
without certification. See paragraph (5) of this subdivision to determine the
percentage of residential use.
(3)
Where energy sources billed on a single meter or in a lump sum are used for
both residential and nonresidential and less than 75 percent of the usage is
for residential purposes, the purchaser is entitled to the reduced tax rate on
only the percentage of energy sources used for residential purposes. This
percentage shall be determined in accordance with paragraph (5) of this
subdivision and shall be rounded off to the nearest 10 percent. A certificate
shall be filed in the form provided and shall be given by the purchaser to the
supplier of the energy sources. In the absence of such a certificate, the
supplier of energy sources shall collect the full tax on the entire
usage.
(4) Where a structure is
exclusively used for nonresidential purposes, no certification or statement is
required, since no eligibility for a reduced sales tax rate shall exist for
purchases of energy sources and services.
(5) To determine the percentage of the area
of a structure used for residential purposes, the following formula shall be
used by the purchaser of the energy sources and services: total area of space
used for residential purposes, excluding common areas, divided by the total
area (residential and nonresidential), excluding common areas, equals the
percentage rounded off to the nearest 10 percent applicable to use for
residential purposes. Thus, if the percentage before rounding is 74.9 percent,
the percentage when rounded is 70 percent.
(6) Certifications, when needed, may be
obtained from the Taxpayer's Assistance Bureau at the State Campus in Albany,
from any district tax office or from the supplier of the energy sources and
services.
(f)
Customer classification.
(1) Vendors of
energy sources which are regulated by the New York State Public Service
Commission and which have on file therewith a tariff or rate schedule which
classifies its customer either as residential or nonresidential, may request
from the Department of Taxation and Finance approval to use such
classifications for determining the eligibility of its customer for a reduced
sales tax rate without certification.
(2) All other vendors of energy sources may
use from their records any classifications presently in use which classifies a
customer as either a residential or nonresidential customer. If there is no
such classification, the vendor is required to make a visual inspection of the
structure to determine his customer's classification in accordance with
subdivision (e) of this section for eligibility for a reduced sales tax rate
without certification.
(3) Every
supplier of energy sources who has received from his customer a certification
claiming eligibility for a reduced sales tax rate shall not be held liable,
except in the case of his fraud, for any misrepresentations made by the
customer on the certification or for any tax not collected by granting the
sales tax rate reduction based on such certification.
(4) Where a customer is eligible for the
reduced tax rate, as a residential customer described in paragraph (1) or (2)
of subdivision (e) of this section, but the supplier of energy sources has not
classified him as a residential user, the customer should furnish the supplier
with a certification.
(g)
Collection of tax.
(1) Every vendor, making a sale of energy
sources to a customer who is classified as a residential customer, shall
collect the sales tax at the reduced sales tax rate on such customer's total
purchase.
(2) Every supplier of
energy sources who has received from his customer a certification shall collect
the sales tax at the reduced rate on the portion of the purchase shown as being
used for residential purposes and shall collect the tax at the full rate on the
remainder which is used for nonresidential purposes.
(3) Every vendor making sales of energy
sources which are used for nonresidential purposes shall collect the sales tax
at the full rate.
(h)
Reporting and remitting.
Every vendor making sales of energy sources which are taxed
at a reduced rate shall, in addition to the usual reporting form, complete and
file a Schedule B as part of its sales tax report and remit the appropriate tax
therewith.