2012 New York Consolidated Laws
TAX - Tax
Article 1 - (1 - 37) SHORT TITLE; DEFINITIONS; MISCELLANEOUS
5-A - Certification of registration to collect sales and compensating use taxes by certain contractors, affiliates and subcontractors.

 
    § 5-a. Certification of registration to collect sales and compensating
  use  taxes by certain contractors, affiliates and subcontractors. 1. For
  purposes of this section, the following terms shall have  the  specified
  meanings:
    (a)   "Affiliate"   means  a  person  which  directly,  indirectly  or
  constructively
    (1) controls another person;
    (2) is controlled by another person; or
    (3) is, along with another person,  under  the  control  of  a  common
  parent.
    "Control"  means  possession  of  the  power  to  direct, or cause the
  direction of, the management and policies of another person.
    (b) "Commodities" means commodities as defined in  article  eleven  of
  the state finance law.
    (c)  (1)  "Contract"  means  an  agreement  between a contractor and a
  covered agency for the purchase  by  the  covered  agency,  pursuant  to
  article  eleven  of  the  state  finance law, of commodities or services
  having a value in excess of one hundred thousand dollars.
    The term "contract" shall also  include  a  centralized  contract,  as
  defined  in  article  eleven  of  the state finance law, with a value in
  excess of one hundred thousand dollars.
    (2) The term "contract" shall not include:
    (A) a purchase by a covered agency of commodities or services  with  a
  value  in  excess  of  one  hundred thousand dollars based upon a formal
  mini-bid solicitation pursuant to a centralized contract;
    (B) a grant or an intergovernmental agreement; or
    (C) a purchase of commodities or services from a  "preferred  source,"
  as such term is defined in article eleven of the state finance law.
    (3)  Multiple purchases of commodities or services by a covered agency
  from the same contractor  during  a  state  fiscal  year  shall  not  be
  aggregated  for  purposes  of  determining  whether the greater than one
  hundred thousand dollar threshold described in this subdivision has been
  met.
    (d) "Contractor" means a person awarded a contract.
    (e) "Covered agency" means a "state agency" for  purposes  of  article
  eleven  of  the  state finance law, the legislature, the judiciary, or a
  public authority or public benefit corporation at  least  one  of  whose
  members is appointed by the governor.
    (f) "Department" means the department of taxation and finance.
    (g)  "Person"  means  an  individual,  partnership,  limited liability
  company, society, association,  joint  stock  company,  or  corporation;
  provided,   however,  that  a  "person"  shall  not  include  a  "public
  corporation" or an "education corporation," as such terms are defined in
  section sixty-six of the  general  construction  law,  a  not-for-profit
  corporation  whose  contracts are subject to approval in accordance with
  article eleven-B of the  state  finance  law,  a  board  of  cooperative
  educational  services created pursuant to article forty of the education
  law, or a soil and  water  conservation  district  created  pursuant  to
  section five of the soil and water conservation districts law.
    (h) "Sales and compensating use taxes" means state and local sales and
  compensating  use  taxes imposed by article twenty-eight and pursuant to
  the  authority  of  article  twenty-nine  of  this  chapter,  which  are
  administered by the commissioner.
    (i)  "Sales  tax  quarter" means a quarterly period ending on the last
  day of February, May, August or November.
    (j) "Services" means services as defined  in  article  eleven  of  the
  state finance law.

    (k)  "Subcontractor" means a person engaged by a contractor or another
  subcontractor to perform a portion of the contractor's obligations under
  a contract.
    (l) "State" means the state of New York.
    (m)  "Taxable  services" means services, the receipts from the sale of
  which are taxable by article twenty-eight or article twenty-nine of this
  chapter.
    (n) The terms "receipts," "sale,"  "tangible  personal  property"  and
  "vendor"  have  the  meanings  given  in  article  twenty-eight  of this
  chapter.
    2. (a) Notwithstanding any provision of law to the contrary, before  a
  contract   may   take  effect,  the  contractor  must  comply  with  the
  requirements of subparagraphs one and two of this paragraph.
    (1)  The  contractor  must  file  a  written  certification  with  the
  department, made under penalty of perjury, stating that:
    (A)  if  the contractor made sales delivered by any means to locations
  within the state of  tangible  personal  property  or  taxable  services
  having  a  value  in excess of three hundred thousand dollars during the
  immediately  preceding  consecutive  four  sales   tax   quarters,   the
  contractor  is  registered  for  sales and compensating use tax purposes
  with the department under sections eleven hundred thirty-four and twelve
  hundred fifty-three of this chapter. If  the  contractor  did  not  make
  sales  delivered  by any means to locations within the state of tangible
  personal property or taxable services having a value in excess of  three
  hundred  thousand  dollars during such four sales tax quarters, then the
  contractor shall so certify;
    (B) if any affiliate of the contractor made  sales  delivered  by  any
  means  to  locations  within  the state of tangible personal property or
  taxable services having a value in  excess  of  three  hundred  thousand
  dollars  during  the  immediately  preceding  consecutive four sales tax
  quarters, to the best of the contractor's knowledge, each such affiliate
  is registered for sales and  compensating  use  tax  purposes  with  the
  department  under sections eleven hundred thirty-four and twelve hundred
  fifty-three of this  chapter.  If  the  contractor  does  not  have  any
  affiliates,  or  does not have any affiliates which made sales delivered
  by any means to locations within the state of tangible personal property
  or taxable services having a value in excess of three  hundred  thousand
  dollars  during  such four sales tax quarters, then the contractor shall
  so certify; and
    (C) if  any  subcontractor  made  sales  delivered  by  any  means  to
  locations  within  the  state  of  tangible personal property or taxable
  services having a value in excess  of  three  hundred  thousand  dollars
  during the immediately preceding consecutive four sales tax quarters, to
  the  best  of  the  contractor's  knowledge,  each such subcontractor is
  registered  for  sales  and  compensating  use  tax  purposes  with  the
  department  under sections eleven hundred thirty-four and twelve hundred
  fifty-three of this  chapter.  If  the  contractor  does  not  have  any
  subcontractors,   or  there  are  no  subcontractors  which  made  sales
  delivered by any  means  to  locations  within  the  state  of  tangible
  personal  property or taxable services having a value in excess of three
  hundred thousand dollars during such four sales tax quarters,  then  the
  contractor shall so certify.
    (D) The certification required by this subparagraph shall include such
  additional  information as the department deems necessary for the proper
  administration of this section.
    (E) The certification required by this subparagraph need only be filed
  with the department once and, once filed, shall be deemed to satisfy the
  requirements  of  this  subparagraph  for  purposes  of  any  subsequent

  contract  to which the contractor is a party; provided, however, that if
  the contractor, or an affiliate or subcontractor, is  not  certified  as
  registered  with  the  department  for  sales  and  compensating use tax
  purposes   on   the   contractor's   original  certification,  and  such
  contractor, affiliate or subcontractor  makes  sales  delivered  by  any
  means  to  locations  within  the state of tangible personal property or
  taxable services having a value in  excess  of  three  hundred  thousand
  dollars  during any consecutive four sales tax quarters which follow the
  sales tax quarter in which the contractor's original  certification  was
  made,  then  the  contractor  shall,  as  soon  as  possible  after such
  occurrence, file an amended written certification with  the  department,
  made   under  penalty  of  perjury,  indicating  that  such  contractor,
  affiliate or  subcontractor,  as  applicable,  is  registered  with  the
  department for sales and compensating use tax purposes.
    (2)  The  contractor  shall  also provide the procuring covered agency
  with a written certification, made under  penalty  of  perjury,  stating
  that:
    (A)  the  contractor  has  filed  the certification prescribed by this
  section with the department, and that such certification is correct  and
  complete, or
    (B)   such  certification  is  not  required  to  be  filed  with  the
  department, and explaining the reasons for such determination.
    (C) the certification required by this subparagraph shall be  included
  in  the procurement record (as such term is defined in article eleven of
  the  state  finance  law),  or  similar  documentation  if   the   state
  comptroller is not required by law to approve the contract.
    (D)  any  question  as to the accuracy of the contractor certification
  described in clause (B) of this subparagraph shall be  resolved  by  the
  contracting  covered  agency,  in  consultation,  as necessary, with the
  state comptroller and the department.
    (b) A contractor, affiliate of the contractor, or subcontractor  which
  registers  for  sales  and  compensating use tax purposes under sections
  eleven hundred  thirty-four  and  twelve  hundred  fifty-three  of  this
  chapter in order to comply with the provisions of this subdivision shall
  be  a  vendor  and shall comply with and be subject to the provisions of
  articles twenty-eight and twenty-nine of this chapter.
    (c) The certification requirements prescribed by this  subdivision  in
  order  for  a  contract to take effect shall be in addition to any other
  requirements prescribed by law relating to the formation of contracts to
  which a covered agency is a party.
    3. (a) If a contract has taken effect, and the terms of such  contract
  provide  that  it  may  be  renewed  upon  expiration  of  an initial or
  subsequent term, then the contractor shall, no later than the day  prior
  to  the commencement date of the applicable renewal term, certify to the
  contracting covered agency in writing, and  under  penalty  of  perjury,
  that:
    (1)  the  contractor  has  filed  the certification prescribed by this
  section with the department, and that such certification is correct  and
  complete, or
    (2)  that  such  certification  is  not  required to be filed with the
  department, and explains the reasons for such determination.
    (3) Any question as to the accuracy of  the  contractor  certification
  described in subparagraph two of this paragraph shall be resolved by the
  contracting  covered  agency,  in  consultation,  as necessary, with the
  state comptroller and the department.
    (b) The certification required by paragraph (a)  of  this  subdivision
  shall  be made a part of the procurement record (as such term is defined

  in article eleven of the state finance law), or similar documentation if
  the state comptroller is not required by law to approve the contract.
    (c)  If  the  contractor  fails  to make the certification required by
  paragraph (a) of this  subdivision,  or  if,  during  the  term  of  the
  contract,  the  department  or  the  covered  agency discovers that such
  certification is false, then such failure or false  certification  shall
  be  a material breach of the contract, and the contract shall be subject
  to termination if the covered agency determines that such action  is  in
  the best interests of the state.
    (d)  A contractor, affiliate of the contractor, or subcontractor which
  registers for sales and compensating use  tax  purposes  under  sections
  eleven  hundred  thirty-four  and  twelve  hundred  fifty-three  of this
  chapter in order to comply with the provisions of paragraph (a) of  this
  subdivision  shall  be  a vendor and shall comply with and be subject to
  the provisions of articles twenty-eight and twenty-nine of this chapter.
    4. The provisions of this section shall not apply to a contract if the
  procuring covered agency and the state comptroller, or  other  approving
  authority  if  the  state  comptroller  is  not  required to approve the
  contract, find in writing that the contract is necessary to  address  an
  "emergency,"  within  the meaning of article eleven of the state finance
  law, or to ensure the public health, safety  or  welfare.  Such  written
  finding shall explain the reasons supporting such determination.