There is a newer version of the New York Consolidated Laws
2006 New York Code - Tax On The Furnishing Of Utility Services.
§ 186-a. Tax on the furnishing of utility services. 1. Notwithstanding
any other provision of this chapter, or of any other law, (a) a tax
equal to three and one-quarter percent through December thirty-first,
nineteen hundred ninety-nine, and two and one-half percent on and after
January first, two thousand of its gross income is hereby imposed upon
every provider of telecommunication services doing business in this
state which is subject to the supervision of the state department of
public service which has a gross income for the year ending December
thirty-first in excess of five hundred dollars;
(b) a tax equal to (1) two and five-tenths percent on and after
January first, two thousand through December thirty-first, two thousand,
two and forty-five one hundredths percent from January first, two
thousand one through December thirty-first, two thousand one, two and
four-tenths percent from January first, two thousand two through
December thirty-first, two thousand two, two and twenty-five one
hundredths percent from January first, two thousand three through
December thirty-first, two thousand three, two and one hundred
twenty-five one thousandths percent from January first, two thousand
four through December thirty-first, two thousand four and two percent
commencing January first, two thousand five and thereafter of that
portion of its gross income derived from the transportation,
transmission or distribution of gas or electricity by means of conduits,
mains, pipes, wires, lines or the like and (2) two and one-tenth percent
from January first, two thousand through December thirty-first, two
thousand, two percent from January first, two thousand one through
December thirty-first, two thousand one, one and nine-tenths percent
from January first, two thousand two through December thirty-first, two
thousand two, eighty-five one hundredths of one percent from January
first, two thousand three through December thirty-first, two thousand
three, four-tenths of one percent from January first, two thousand four
through December thirty-first, two thousand four and zero percent
commencing January first, two thousand five of all of its other gross
income, is hereby imposed upon every utility not taxed under paragraph
(a) of this subdivision doing business in this state which is subject to
the supervision of the state department of public service which has a
gross income for the year ending December thirty-first in excess of five
hundred dollars, except motor carriers or brokers subject to such
supervision under the public service law; and
(c) a tax equal to three and one-quarter percent through December
thirty-first, nineteen hundred ninety-nine, two and one-tenth percent
from January first, two thousand through December thirty-first, two
thousand, two percent from January first, two thousand one through
December thirty-first, two thousand one, one and nine-tenths percent
from January first, two thousand two through December thirty-first, two
thousand two, eighty-five one hundredths of one percent from January
first, two thousand three through December thirty-first, two thousand
three, four-tenths of one percent from January first, two thousand four
through December thirty-first, two thousand four and zero percent
commencing January first, two thousand five of its gross operating
income is hereby imposed upon every other utility doing business in this
state which has a gross operating income for the year ending December
thirty-first in excess of five hundred dollars, which taxes shall be in
addition to any and all other taxes and fees imposed by any other
provision of law for the same period.
2. As used in this section, (a) the word "utility" includes every
person (including every provider of telecommunication services) subject
to the supervision of the state department of public service, except
persons engaged in the business of operating on the public highways of
this state one or more omnibuses, having a seating capacity of more than
seven persons, and persons engaged in the business of operating or
leasing sleeping and parlor railroad cars or of operating railroads
other than street surface, rapid transit, subway and elevated railroads,
and also includes every person (whether or not such person is subject to
such supervision) who sells gas, electricity, steam, water or
refrigeration, delivered through mains, pipes or wires, or furnishes
gas, electric, steam, water or refrigerator service, by means of mains,
pipes, or wires; regardless of whether such activities are the main
business of such person or are only incidental thereto, or of whether
use is made of the public streets;
(b) the word "person" means persons, corporations, companies,
associations, joint-stock companies or associations, partnerships and
limited liability companies, estates, assignee of rents, any person
acting in a fiduciary capacity, or any other entity, and persons, their
assignees, lessees, trustees or receivers, appointed by any court
whatsoever, or by any other means, except the state; municipalities,
political and civil subdivisions of the state or municipality and public
districts (provided, however, that with respect to gas, electricity and
gas or electric service, including the sale of the transportation,
transmission or distribution of gas or electricity, such municipalities,
political and civil subdivisions and public districts shall be excluded
from the definition of "person" if they own and operate facilities which
are used to generate or distribute electricity or distribute gas and
they distribute and sell such gas or electricity solely at retail,
solely within their respective jurisdiction; or provided, further, with
respect to the sale of electricity or the transportation, transmission
or distribution of electricity, a municipality shall be excluded from
the definition of "person" if it sells electricity at retail where all
such electricity (excluding temporary substitution power during outages
or periods of reduced output) has been generated solely by and purchased
solely from the state or a public authority of the state); corporations
and associations which are organized and operated exclusively for
religious, charitable or educational purposes, no part of the net
earnings of which inures to the benefit of any private shareholder or
individual, and which are described in paragraph four of subdivision (a)
of section eleven hundred sixteen of this chapter where such
organization resells such gas or electricity or gas or electric service
as landlord to its tenants in buildings owned by such organization; and
excepting a corporation organized and operated exclusively for the
purpose of leasing from a city in this state a water-works system
designed to supply water at cost to users thereof for discharge, either
before or after industrial use, into a river within such city in order
to improve the flow and condition of such river and thereby to provide a
means to relieve such river from pollution;
(c) the words "gross income" mean and include receipts received in or
by reason of any sale, conditional or otherwise, (except sales
hereinafter referred to with respect to which it is provided that
profits from the sale shall be included in gross income) made or service
rendered for ultimate consumption or use by the purchaser in this state,
including cash, credits and property of any kind or nature (whether or
not such sale is made or such service is rendered for profit), without
any deduction therefrom on account of the cost of the property sold, the
cost of materials used, labor or services or other costs, interest or
discount paid, or any other expense whatsoever.
(1) Provided, however, that all receipts from sales of the
transportation, transmission or distribution of gas or electricity by
means of conduits, mains, pipes, wires, lines or the like, rendered or
performed in this state, shall be included in gross income except
receipts from (i) sales of the transportation, transmission or
distribution of gas or electricity to (A) a utility (excluding a public
authority) which is supervised by this state or another jurisdiction
(where an element of such supervision includes rate regulation and, for
a utility supervised by another jurisdiction, such supervision includes
rate regulation and such gas or electricity is delivered for ultimate
consumption or use outside this state), (B) a municipality which owns
and operates facilities which are used to generate or distribute
electricity or distribute gas and which distributes and sells such
electricity or gas solely at retail, solely within its respective
jurisdiction, or (C) a public authority of this state where such public
authority is primarily engaged in the generation and transmission or
distribution of electricity or the distribution of electricity or gas
and at least ninety-five percent of the assets of which are so devoted,
provided, that, if the service area or district of the authority is less
than the entire state, the excluded receipt shall be limited to receipts
derived from the sale of transportation, transmission or distribution of
gas or electricity, which electricity or gas will be sold by such
authority at retail within its service area or district; where, as the
case may be, such utility or authority purchasing such transportation,
transmission or distribution sells the gas or electricity being so
transported, transmitted or distributed, (ii) sales of the
transportation, transmission or distribution of electricity to a
municipality where the electricity being transported has been purchased
by such municipality and has been generated solely by and purchased
solely from the state or a public authority of the state (except where
the electricity being transported constitutes temporary substitution
power being supplied during outages or periods of reduced output) and
where such municipality purchasing such transportation, transmission or
distribution, sells solely at retail, solely within its respective
jurisdiction, the electricity being so transported, transmitted or
distributed, (iii) sales of the transportation, transmission or
distribution of gas or electricity to corporations and associations
which are organized and operated exclusively for religious, charitable
or educational purposes, no part of the net earnings of which inures to
the benefit of any private shareholder or individual, and which are
described in paragraph four of subdivision (a) of section eleven hundred
sixteen of this chapter where such organization resells such
transportation, transmission or distribution as part of a bundled gas or
electric service as landlord to its tenants in buildings owned by such
organization, or (iv) sales of the transportation, transmission or
distribution of gas or electricity, not otherwise excluded, to
nonresidential customers, but only in accordance with the following
schedule: for the sales during the calendar years two thousand and two
thousand one, zero percent of the receipts from such sales shall be
excluded; for the sales during the calendar year two thousand two,
twenty-five percent of the receipts from such sales shall be excluded;
for sales during the calendar year two thousand three, fifty percent of
the receipts from such sales shall be excluded; for sales during the
calendar year two thousand four, seventy-five percent of the receipts
from such sales shall be excluded; and for sales thereafter, one hundred
percent of such sales shall be excluded. For the purposes of this
clause, the term "nonresidential customers" means those customers whose
use of gas or electricity, or gas or electric service does not qualify
for the reduced rate of sales and compensating use tax on gas,
electricity, or gas or electric service under section eleven hundred
five-A of article twenty-eight of this chapter.
(2) Provided, further, receipts received from the sale of the
transportation, transmission or distribution of gas or electricity shall
mean the receipts received from customers representing the noncommodity
charges for gas or electric service.
(3) Provided, further, gross income with respect to a provider of
telecommunication services shall not include receipts from the sale of
telecommunication services as such services are defined in section one
hundred eighty-six-e of this article.
(4) Provided, further, sales of gas, electricity, steam, water or
refrigeration or gas, electric, steam, water or refrigerator service to
a landlord that is a person as defined in this subdivision for resale by
such landlord to a tenant, for consumption by such tenant as an incident
to such landlord's activity of renting premises to such tenant, shall be
subject to the tax imposed under this section even though such sales are
not for ultimate consumption by such landlord. Provided, further,
receipts derived by a landlord from the resale for such gas,
electricity, steam, water or refrigeration or furnishing gas, electric,
steam, water or refrigerator service to such tenant shall be
conclusively presumed to be equal to such landlord's cost of the same,
and, if the tax under this section was imposed on the sale to such
landlord, no additional tax under this section shall be owing on the
sale by such landlord to such tenant. If, however, the tax under this
section was not imposed on such sale to the landlord, then such landlord
on the sale to its tenant shall file a return hereunder based on such
landlord's cost (including any associated transportation cost) of such
gas, electricity, steam, water or refrigeration or gas, electric, steam,
water or refrigerator service.
(5) "Gross income" also includes profits from the sale of securities;
also profits from the sale of real property growing out of the ownership
or use of or interest in such property; also profit from the sale of
personal property (other than property of a kind which would properly be
included in the inventory of the taxpayer if on hand at the close of the
period for which a return is made); also receipts from interest,
dividends, and royalties, derived from sources within this state other
than such as are received from a corporation a majority of whose voting
stock is owned by the taxpaying utility, without any deduction therefrom
for any expenses whatsoever incurred in connection with the receipt
thereof, also profits from any transaction (except sales for resale and
rentals) within this state whatsoever;
(d) the words "gross operating income" mean and include receipts
received in or by reason of any sale, conditional or otherwise, made for
ultimate consumption or use by the purchaser of gas, electricity, steam,
water or refrigeration, or in or by reason of the furnishing for such
consumption or use of gas, electric, steam, water or refrigerator
service in this state, including cash, credits and property of any kind
or nature, without any deduction therefrom on account of the cost of the
property sold, the cost of materials used, labor or services or other
costs, interest or discount paid, or any other expenses whatsoever.
Provided, however, there shall be excluded from gross operating income
receipts representing the amount received from the resale of the
transportation, transmission or distribution of gas or electricity in
this state where such transportation, transmission or distribution being
resold is provided by a utility subject to tax under paragraph (b) of
subdivision one of this section; the receipts representing the amount
received from resale of such transportation, transmission or
distribution shall be the amount received for such transportation,
transmission or distribution by such utility which initially provided
such transportation, transmission or distributions. Provided, further,
sales of gas, electricity, steam, water or refrigeration or gas,
electric, steam, water or refrigerator service to a landlord that is a
person as defined in this subdivision for resale by such landlord to a
tenant, for consumption by such tenant as an incident to such landlord's
activity of renting premises to such tenant, shall be subject to the tax
imposed under this section even though such sales are not for ultimate
consumption by such landlord. Provided, further, receipts derived by a
landlord from the resale of such gas, electricity, steam, water or
refrigeration or furnishing gas, electric, steam, water or refrigerator
service to such tenant shall be conclusively presumed to be equal to
such landlord's cost of the same, and, if the tax under this section was
imposed on the sale to such landlord, no additional tax under this
section shall be owing on the sale by such landlord to such tenant. If
the tax under this section was not imposed on such sale to the landlord,
then such landlord on the sale to its tenant shall file a return
hereunder based on such landlord's cost (including any associated
transportation cost) of such gas, electricity, steam, water or
refrigeration or gas, electric, steam, water or refrigerator service;
(e) the term "telecommunication services" shall have the same meaning
as such term is defined in section one hundred eighty-six-e of this
article;
(f) The word "premises" means and includes any real property or part
thereof, and any structure thereon or space therein; and
(g) the word "tenant" means and includes a person paying, or required
to pay, rent for premises as a lessee, sublessee, licensee or
concessionaire.
2-a. Tax adjustment for utilities with financial resource asset for
taxable years commencing on and after January first, nineteen hundred
ninety-two. Notwithstanding any provision of this section to the
contrary, in the event that a utility which is taxable under this
section is an electric corporation, as defined in subdivision thirteen
of section two of the public service law, which, on or before the
effective date of this subdivision, has been permitted by the public
service commission to establish for ratemaking purposes a financial
resource asset (which asset shall represent, in an amount approved by
the public service commission on or before the effective date of this
subdivision, the present value of a stream of future cash flows, rather
than actual land, land rights, physical structures, improvements or
other physical items, franchises or intangible plant), such an electric
corporation shall be allowed an adjustment by way of the allowance of a
deduction from its gross income subject to tax under subdivision one of
this section equal to the amount by which (a) that portion of gross
income received in any year after nineteen hundred ninety-one which
represents the total return authorized by the public service commission
to be recovered in rates on the financial resource asset, including
amortization, exceeds (b) that portion of gross income received in the
twelve-month period immediately preceding the month in which the
financial resource asset is established pursuant to authorization of the
public service commission and which represents (i) the total revenue
derived from any financial stability adjustment and (ii) the total
return on interest-bearing construction work in progress in the rate
base permitted by the public service commission. No electric corporation
shall be allowed the tax adjustment authorized by this subdivision until
it shall file, together with the return required to be filed pursuant to
subdivision four of this section, a certificate for the period covered
by the return from the department of public service verifying that the
calculation of such tax adjustment complies with this subdivision. The
adjustment to gross income allowed by this subdivision shall not be
applicable in calculating any other tax imposed or authorized to be
imposed by this chapter or any other law, and the amount of tax
surcharge equal to seventeen per centum imposed pursuant to section one
hundred eighty-six-c of this article, and the amount of the tax
surcharge imposed under section one hundred eighty-eight of this
article, shall be calculated and payable as if the adjustment provided
in this subdivision were not allowed.
3. Every utility subject to tax under this section shall keep such
records of its business and in such form as the tax commission may
require, and such records shall be preserved for a period of three
years, except that the tax commission may consent to their destruction
within that period or may require that they be kept longer.
4. Every utility subject to tax hereunder shall file, on or before
March fifteenth of each year, a return for the year ended on the
preceding December thirty-first, except that the year ended on December
thirty-first, nineteen hundred seventy-six shall be deemed, for the
purposes of this subdivision, to have commenced on June first, nineteen
hundred seventy-six, including any period for which the tax imposed
hereby or by any amendment hereof is effective, each of which returns
shall state the gross income or gross operating income for the period
covered by each such return. Returns shall be filed with the
commissioner of taxation and finance on a form to be furnished by the
commissioner for such purpose and shall contain such other data,
information or matter as the commissioner may require to be included
therein. Notwithstanding the foregoing provisions of this subdivision,
the commissioner may require any utility to file an annual return, which
shall contain any data specified by the commissioner, regardless of
whether the utility is subject to tax under this section; and the
commissioner may require a landlord selling to a tenant gas, electric,
steam, water or refrigeration or furnishing gas, electric, steam, water
or refrigerator service, where the same has been subjected to tax under
this section on the sale to such landlord, to file, on or before the
fifteenth day of March of each year, an information return for the year
ended on the preceding December thirty-first, covering such year in such
form and containing such data as the commissioner may specify. Every
return shall have annexed thereto a certification by the head of the
utility making the same, or of the owner or of a co-partner thereof, or
of a principal officer of the corporation, if such business be conducted
by a corporation, to the effect that the statements contained therein
are true.
5. If any provision of this section conflicts with any other provision
contained in this article, the provision of this section shall control,
but the provisions of this article which do not conflict with the
provisions of this section shall apply with respect to the taxes under
this section, so far as they are, or may be made applicable.
6. The tax imposed by this section shall be charged against and be
paid by the utility and may be added as a separate item to bills
rendered by the utility to customers. Upon request the utility shall
furnish a statement of the amount of tax imposed by this section to its
customers for bills rendered on or after January first, two thousand.
7. Notwithstanding any other provision contained in this or any other
law, in the event the city of New York shall enact a local law imposing
a tax on utilities, such as it imposed by this section, except as to the
rate of tax, the tax commission, in its discretion, may arrange with the
chief fiscal officer of said city for the collection by him of the tax
imposed by this section with respect to items that enter into the tax
base for both the tax imposed by said city and that imposed pursuant to
this section, and for the remittance by him of the tax imposed by this
section to the tax commission for disposition as in this article
provided. If such an arrangement be made, all the provisions of the
local law of said city imposing the local tax shall apply with respect
to the tax imposed by this section in the same manner as if the local
tax rate had included the tax imposed by this section.
8. Notwithstanding any other provision of this chapter or any other
law to the contrary, any utility (a) which is subject to tax hereunder,
and (b) which is subject to the supervision of the department of public
service, shall provide, in addition to any other discount, a reduction
of three percent in the rate charged for gas, electricity, steam or
water sold, or gas, electric, steam or water service rendered, prior to
nineteen hundred ninety-four, for ultimate consumption or use within an
area designated as an empire zone pursuant to article eighteen-B of the
general municipal law by a business, whether incorporated or
unincorporated, other than a retail enterprise as defined in paragraph
(k) of subdivision twelve of section two hundred ten of this chapter but
without regard to subparagraph (iii) thereof, which has been certified
pursuant to article eighteen-B of the general municipal law, and which
has claimed a credit under subdivision nineteen of section two hundred
ten, subsection (k) of section six hundred six, subsection (e) of
section fourteen hundred fifty-six or subdivision (g) of section fifteen
hundred eleven of this chapter during the previous fifteen months, as
evidenced by a certificate issued by the commissioner to such business.
Ninety-six and one-half percent of the aggregate of such reductions
during the year may be applied as a credit against the tax imposed
pursuant to this section with respect to such year.
* 9. Notwithstanding any other provision of this chapter or any other
law to the contrary, for taxable periods nineteen hundred ninety-seven
through and including two thousand seven, any utility which delivers
power under the power for jobs program, as established by section one
hundred eighty-nine of the economic development law, shall be allowed a
credit, subject to the limitations thereon contained in this
subdivision, against the tax imposed under this section equal to net
lost revenues from the delivery of power under such power for jobs
program. Net lost revenues means the "net receipts" less "net utility
revenue" from such delivery of power. For purposes of this subdivision,
"net receipts" shall mean the amount that the utility would have
otherwise received from customers receiving power pursuant to
allocations by the New York state economic development power allocation
board in accordance with section one hundred eighty-nine of the economic
development law, or from customers whose allocation has been transferred
to an energy service company, or from energy service companies to which
such allocation has been transferred, pursuant to its tariff supervised
by the public service commission for substantially comparable service
otherwise applicable to such customers or energy service companies in
the absence of such designation, less the utility's annual average
incremental short-term variable and capacity costs of providing such
power in the absence of such purchase. For the purposes of this
subdivision, "net utility revenue" shall mean the revenues the utility
actually receives in accordance with such section one hundred
eighty-nine from such customers so designated by the New York state
economic development power allocation board or from customers whose
allocation has been transferred to an energy service company, or from
the energy service companies to which a power for jobs allocation has
been transferred, less the utility's cost of such power under such
program. Provided, however, that any credit under this section shall be
used only with respect to the same taxable year during which such credit
arose and shall not be capable of being carried forward or backward to
any other taxable period. Nor shall any credit be allowed to any utility
for the total amount of power, expressed in kilowatt hours, purchased by
the customers of such utility under such program during the taxable
period that exceeds the prorated "baseline energy use" by all customers
of that utility purchasing power under such program during the taxable
period. "Baseline energy use" with respect to each customer shall mean
the largest amount of kilowatt hours of energy used by such customer
during any twelve consecutive month period occurring during the
preceding thirty months immediately preceding the New York state
economic development power allocation board's recommendation of such
customer's application, prorated to reflect the length of time of the
customer's participation in such program during the taxable period.
Provided further, however, that in accordance with subdivision (k) of
section one hundred eighty-nine of the economic development law no tax
credit shall be available for any revenue losses when a utility has
declined to purchase power allocated for sale under such program. No
electric corporation shall be allowed the tax credit authorized by this
subdivision until it shall file a certificate from the department of
public service for the period covered by the return verifying that the
calculation of such tax credit complies with this subdivision and the
department of public service has approved such certificate and forwarded
a copy of such approved certificate to the commissioner or any amended
certificate resulting from the need for correction. The credit allowed
by this subdivision shall not be applicable in calculating any other tax
imposed or authorized to be imposed by this chapter or any other law,
and the amount of the tax surcharge imposed under section one hundred
eighty-six-c of this article shall be calculated and payable as if the
credit provided for by this subdivision were not allowed.
* NB Repealed December 31, 2007
* 10. Notwithstanding any other provision contained in this chapter or
any other law, any surcharge collected or any administrative fee
retained by any telephone corporation acting as collection agent for a
municipality pursuant to the provisions of article six of the county law
shall not be considered as nor included in the determination of gross
income or gross operating income of or by such corporation.
* NB Reverts to sub. 9 December 31, 2007
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