2010 New York Code
TAX - Tax
Article 28 - SALES AND COMPENSATING USE TAXES
Part 3 - (1115 - 1123) EXEMPTIONS
1119 - Enacted without section heading.

§  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,  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 such
  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 (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 such enterprise at an address in such empire zone, 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; 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, (B) adding to,  altering
  or  improving  real  property, property or land of such an enterprise or
  (C) maintaining, servicing or repairing real property, property or  land
  of  such an enterprise, 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.
    (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. 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.