S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3959
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 8, 2023
                                ___________
 
 Introduced  by  M.  of  A.  BRAUNSTEIN  -- read once and referred to the
   Committee on Ways and Means
 
 AN ACT to amend the tax law, in relation to creating an  excise  tax  on
   the collection of consumer data by commercial data collectors
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The tax law is amended by adding a  new  section  186-h  to
 read as follows:
   §  186-H.  EXCISE TAX ON THE COLLECTION OF CONSUMER DATA BY COMMERCIAL
 DATA COLLECTORS. 1. IMPOSITION OF TAX. THERE IS HEREBY IMPOSED A MONTHLY
 EXCISE TAX ON THE COLLECTION OF THE CONSUMER DATA OF INDIVIDUAL NEW YORK
 CONSUMERS BY COMMERCIAL DATA COLLECTORS. THE TAX SHALL APPLY  REGARDLESS
 OF  THE  FORMAT,  ELECTRONIC OR OTHERWISE, IN WHICH THE CONSUMER DATA IS
 COLLECTED BY THE COMMERCIAL DATA COLLECTOR.
   2. DEFINITIONS. AS USED IN THIS SECTION:
   (A) THE WORDS "COMMERCIAL DATA COLLECTOR"  MEAN  A  FOR-PROFIT  ENTITY
 THAT:
   (I)  COLLECTS,  MAINTAINS,  USES,  PROCESSES, SELLS OR SHARES CONSUMER
 DATA IN SUPPORT OF ITS BUSINESS ACTIVITIES; AND
   (II) COLLECTS CONSUMER DATA, OTHER THAN CONSUMER CONTACT  INFORMATION,
 ON MORE THAN ONE MILLION INDIVIDUAL NEW YORK CONSUMERS IN A MONTH WITHIN
 THE CALENDAR YEAR.
   (B)  THE  WORD  "CONSUMER"  MEANS AN INDIVIDUAL WHO PURCHASES GOODS OR
 SERVICES FROM A COMMERCIAL DATA COLLECTOR OR  USES  THE  SERVICES  OF  A
 COMMERCIAL DATA COLLECTOR, WHETHER CHARGED FOR THOSE SERVICES OR NOT.
   (C)  THE  WORDS  "CONSUMER  CONTACT INFORMATION" MEAN (I) A CONSUMER'S
 EMAIL ADDRESS, TELEPHONE NUMBER, TELEFAX NUMBER, HOME  ADDRESS,  MAILING
 ADDRESS; AND (II) CREDIT CARD INFORMATION NECESSARY TO ENGAGE IN A SALES
 TRANSACTION.
   (D)  THE  WORDS  "CONSUMER DATA" MEAN ANY INFORMATION THAT IDENTIFIES,
 RELATES TO, DESCRIBES, IS CAPABLE OF BEING  ASSOCIATED  WITH,  OR  COULD
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04825-01-3
              

 A. 3959                             2
 
 REASONABLY  BE LINKED WITH A CONSUMER, WHETHER DIRECTLY SUBMITTED TO THE
 COMMERCIAL DATA COLLECTOR BY THE CONSUMER OR DERIVED FROM OTHER SOURCES.
   (E)  THE WORDS "NEW YORK CONSUMER" MEAN A CONSUMER WHOSE PRIMARY RESI-
 DENCE, AS DEFINED IN ARTICLE TWENTY-TWO OF THIS CHAPTER, IS IN NEW  YORK
 STATE.
   3.  RATE  OF  TAX. THE TAX IS IMPOSED ON COMMERCIAL DATA COLLECTORS AT
 THE FOLLOWING RATES BASED ON THE NUMBER OF NEW YORK CONSUMERS A  COMMER-
 CIAL DATA COLLECTOR COLLECTS DATA ON WITHIN THE MONTH.
 NEW YORK CONSUMERS                  TAX
 LESS THAN OR EQUAL TO ONE MILLION   0
 OVER ONE MILLION TO TWO MILLION     FIVE CENTS PER MONTH ON THE NUMBER
                                     OF NEW YORK CONSUMERS OVER
                                     ONE MILLION BUT NOT MORE
                                     THAN TWO MILLION
 OVER TWO MILLION TO THREE MILLION   FIFTY THOUSAND DOLLARS PER MONTH PLUS
                                     TEN CENTS PER MONTH ON THE NUMBER
                                     OF NEW YORK CONSUMERS OVER
                                     TWO MILLION BUT NOT MORE THAN
                                     THREE MILLION
 OVER THREE MILLION TO FOUR MILLION  ONE HUNDRED FIFTY THOUSAND DOLLARS
                                     PER MONTH PLUS FIFTEEN CENTS PER
                                     MONTH ON THE NUMBER OF NEW YORK
                                     CONSUMERS OVER THREE MILLION
                                     BUT NOT MORE THAN FOUR MILLION
 OVER FOUR MILLION TO FIVE MILLION   THREE HUNDRED THOUSAND DOLLARS PER
                                     MONTH PLUS TWENTY CENTS PER MONTH
                                     ON THE NUMBER OF NEW YORK
                                     CONSUMERS OVER FOUR MILLION BUT
                                     NOT MORE THAN FIVE MILLION
 OVER FIVE MILLION TO SIX MILLION    FIVE HUNDRED THOUSAND DOLLARS PER
                                     MONTH PLUS TWENTY-FIVE CENTS PER
                                     MONTH ON THE NUMBER OF
                                     NEW YORK CONSUMERS OVER FIVE
                                     MILLION BUT NOT MORE THAN
                                     SIX MILLION
 OVER SIX MILLION TO SEVEN MILLION   SEVEN HUNDRED FIFTY THOUSAND DOLLARS
                                     PLUS THIRTY CENTS PER MONTH ON THE
                                     NUMBER OF NEW YORK CONSUMERS
                                     OVER SIX MILLION BUT NOT MORE
                                     THAN SEVEN MILLION
 OVER SEVEN MILLION TO EIGHT MILLION ONE MILLION, FIFTY THOUSAND DOLLARS
                                     PER MONTH PLUS THIRTY-FIVE CENTS PER
                                     MONTH ON THE NUMBER OF NEW YORK
                                     CONSUMERS OVER SEVEN
                                     MILLION BUT NOT MORE THAN EIGHT
                                     MILLION
 OVER EIGHT MILLION TO NINE MILLION  ONE MILLION, FOUR HUNDRED THOUSAND
                                     DOLLARS PER MONTH PLUS FORTY CENTS
                                     PER MONTH ON THE NUMBER OF NEW
                                     YORK CONSUMERS OVER EIGHT
                                     MILLION BUT NOT MORE THAN NINE
                                     MILLION
 OVER NINE MILLION TO TEN MILLION    ONE MILLION, EIGHT HUNDRED THOUSAND
                                     DOLLARS PER MONTH PLUS FORTY-FIVE
                                     CENTS PER MONTH ON THE NUMBER
                                     OF NEW YORK CONSUMERS OVER
 A. 3959                             3
 
                                     NINE MILLION BUT NOT MORE THAN TEN
                                     MILLION
 OVER TEN MILLION                    TWO MILLION, TWO HUNDRED FIFTY
                                     THOUSAND DOLLARS PER MONTH PLUS
                                     FIFTY CENTS PER MONTH ON THE NUMBER
                                     OF NEW YORK CONSUMERS OVER
                                     TEN MILLION.
   4.  TAXPAYERS.    (A)  THERE  SHALL BE A REBUTTABLE PRESUMPTION THAT A
 CONSUMER WHOSE INFORMATION ON RECORD WITH OR AVAILABLE TO  A  COMMERCIAL
 DATA  COLLECTOR  INDICATES  A  NEW YORK HOME ADDRESS, A NEW YORK MAILING
 ADDRESS, OR AN INTERNET PROTOCOL  ADDRESS  CONNECTED  WITH  A  NEW  YORK
 LOCATION  IS  A  NEW  YORK  CONSUMER  FOR  PURPOSES OF THIS SECTION. THE
 PRESUMPTION MAY BE REBUTTED BY EVIDENCE THAT A CONSUMER'S PRIMARY  RESI-
 DENCE,  AS DEFINED IN ARTICLE TWENTY-TWO OF THIS CHAPTER, IS OUTSIDE NEW
 YORK.
   (B) A NEW YORK CONSUMER SHALL BE COUNTED ONLY ONCE IN THE  CALCULATION
 OF THE MONTHLY EXCISE TAX IMPOSED ON A COMMERCIAL DATA COLLECTOR.
   (C)  BUSINESS  ENTITIES  HAVING COMMON OWNERSHIP AS DEFINED IN SECTION
 1563(A) OF THE INTERNAL REVENUE  CODE  SHALL  BE  TREATED  AS  A  SINGLE
 TAXPAYER  FOR  PURPOSES  OF  MEETING  THE  DEFINITION OF COMMERCIAL DATA
 COLLECTOR UNDER THIS  SECTION.  THE  ENTITIES  CONSTITUTING  THE  SINGLE
 TAXPAYER ARE JOINTLY AND SEVERALLY LIABLE FOR ANY TAX DUE.
   (D)  THE  SINGLE  MEMBER  OF A SINGLE MEMBER LIMITED LIABILITY COMPANY
 SHALL BE TREATED AS A CONSUMER UNDER THIS SECTION.
   5. ALTERNATIVE METHODS FOR CALCULATING TAX LIABILITY.    A  COMMERCIAL
 DATA  COLLECTOR AND THE DEPARTMENT MAY AGREE ON A METHODOLOGY FOR DETER-
 MINING THE NUMBER OF NEW YORK CONSUMERS FOR THE PURPOSE  OF  CALCULATING
 THE TAX.
   6.  CREDIT AGAINST TAX PAID TO ANOTHER JURISDICTION. A COMMERCIAL DATA
 COLLECTOR THAT HAS PAID TAX  UNDER  THIS  SECTION  MAY  CLAIM  A  CREDIT
 AGAINST  THE  TAX  PAID WITH RESPECT TO A NEW YORK CONSUMER WHEN ANOTHER
 STATE IMPOSES AN EXCISE TAX IDENTICAL TO  THE  TAX  IMPOSED  UNDER  THIS
 SECTION WITH RESPECT TO THE SAME CONSUMER.
   7.  RECORDKEEPING.  A COMMERCIAL DATA COLLECTOR SHALL MAINTAIN RECORDS
 AS REQUIRED BY THE COMMISSIONER.
   8. RETURNS. (A) A COMMERCIAL  DATA  COLLECTOR  SHALL  FILE  A  MONTHLY
 RETURN AS PRESCRIBED BY THE COMMISSIONER.
   (B)  A  COMMERCIAL DATA COLLECTOR THAT PAYS THE TAX IMPOSED UNDER THIS
 SECTION IN A GIVEN MONTH MUST FILE A RETURN IN SUBSEQUENT  MONTHS  UNTIL
 IT REPORTS NO TAX LIABILITY FOR TWELVE CONSECUTIVE MONTHS.
   9.  ADMINISTRATIVE PROCEDURES. THE ADMINISTRATIVE PROCEDURES SET FORTH
 IN ARTICLE TWENTY-SEVEN OF THIS  CHAPTER  SHALL  APPLY  UNLESS  SPECIFIC
 PROVISIONS TO THE CONTRARY ARE SET FORTH IN THIS SECTION.
   10.  THE  DEPARTMENT  OF TAXATION AND FINANCE MAY PRESCRIBE SUCH RULES
 AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THIS SECTION.
   § 2. This act shall take effect immediately and shall apply to all tax
 years commencing on or after the first  day  of  the  first  month  that
 begins more than six months after the law takes effect.