§ 1101. Definitions. (a) When used in this article the term "person"
includes an individual, partnership, limited liability company, society,
association, joint stock company, corporation, estate, receiver,
trustee, assignee, referee, and any other person acting in a fiduciary
or representative capacity, whether appointed by a court or otherwise,
and any combination of the foregoing.

(b) When used in this article for the purposes of the taxes imposed by
subdivisions (a), (b), (c) and (d) of section eleven hundred five and by
section eleven hundred ten, the following terms shall mean:

(1) Purchase at retail. A purchase by any person for any purpose other
than those set forth in clauses (A) and (B) of subparagraph (i) of
paragraph (4) of this subdivision.

(2) Purchaser. A person who purchases property or to whom are rendered
services, the receipts from which are taxable under this article,
including a mobile telecommunications customer.

(3) Receipt. (i) The amount of the sale price of any property and the
charge for any service taxable under this article, including gas and gas
service and electricity and electric service of whatever nature, valued
in money, whether received in money or otherwise, including any amount
for which credit is allowed by the vendor to the purchaser, without any
deduction for expenses or early payment discounts and also including any
charges by the vendor to the purchaser for shipping or delivery, and,
with respect to gas and gas service and electricity and electric
service, any charges by the vendor for transportation, transmission or
distribution, regardless of whether such charges are separately stated
in the written contract, if any, or on the bill rendered to such
purchaser and regardless of whether such shipping or delivery or
transportation, transmission, or distribution is provided by such vendor
or a third party, but excluding any credit for tangible personal
property accepted in part payment and intended for resale. For special
rules governing computation of receipts, see section eleven hundred
eleven of this article.

(ii) Receipt shall include consideration received by the vendor from
third parties if:

(A) The vendor receives consideration from a third party and the
consideration is directly related to a rebate, discount or similar price
reduction on the sale;

(B) The vendor has an obligation to pass such consideration through to
the purchaser in the form of a rebate, discount or similar price
reduction;

(C) The amount of the consideration to be paid by the third party is
fixed and determinable by the vendor at the time of the sale of the
property or service to the purchaser; and

(D) One of the following criteria is met:

(I) the purchaser presents a coupon, certificate or other
documentation to the vendor to claim a rebate, discount or similar price
reduction where the coupon, certificate or documentation is authorized,
distributed or granted by a third party with the understanding that the
third party shall reimburse any vendor to whom the coupon, certificate
or documentation is presented;

(II) the purchaser presents identification as a member of a group or
organization entitled to a rebate, discount or similar price reduction;
or

(III) the rebate, discount or similar price reduction is identified as
a third party rebate, discount or similar price reduction on the invoice
received by the purchaser or on a coupon, certificate or other
documentation presented by the purchaser.

(iii) Subparagraph (ii) of this paragraph shall not apply to rebates,
discounts or similar price reductions that are reimbursed by a third
party on sales of motor vehicles.

(iv) For the purposes of subclause (II) of clause (D) of subparagraph
(ii) of this paragraph, "identification as a member of a group or
organization entitled to a rebate, discount or similar price reduction"
shall not include the presentation of a customer loyalty or related
rewards program card.

(4) Retail sale. (i) A sale of tangible personal property to any
person for any purpose, other than (A) for resale as such or as a
physical component part of tangible personal property, or (B) for use by
that person in performing the services subject to tax under paragraphs
(1), (2), (3), (5), (7) and (8) of subdivision (c) of section eleven
hundred five where the property so sold becomes a physical component
part of the property upon which the services are performed or where the
property so sold is later actually transferred to the purchaser of the
service in conjunction with the performance of the service subject to
tax. Notwithstanding the preceding provisions of this subparagraph, a
sale of any tangible personal property to a contractor, subcontractor or
repairman for use or consumption in erecting structures or buildings, or
building on, or otherwise adding to, altering, improving, maintaining,
servicing or repairing real property, property or land, as the terms
real property, property or land are defined in the real property tax
law, is deemed to be a retail sale regardless of whether the tangible
personal property is to be resold as such before it is so used or
consumed, except that a sale of a new mobile home to a contractor,
subcontractor or repairman who, in such capacity, installs such property
is not a retail sale. Notwithstanding the preceding provisions of this
subparagraph, the purchase of a truck, trailer or tractor-trailer
combination for rental or lease to an authorized carrier, as described
in paragraph twenty-two of subdivision (a) of section eleven hundred
fifteen, shall be deemed a retail sale.

(ii) Notwithstanding the provisions of subparagraph (i) of this
paragraph, no motor fuel or diesel motor fuel shall be sold or used in
this state without payment, and inclusion in the sales price of such
motor fuel, of the tax on motor fuel required to be prepaid pursuant to
the provisions of section eleven hundred two of this article except
where a provision of this article relating to motor fuel or diesel motor
fuel specifically provides otherwise and except in the case of a sale or
use subject to tax under section eleven hundred five or eleven hundred
ten, respectively, of this article. Provided, however, except for such
requirement of prepayment of tax required by section eleven hundred two
of this article, the provisions of this subparagraph shall not otherwise
modify the meaning of the term "retail sale" as used in this article.
For purposes of this subparagraph and sections eleven hundred two,
eleven hundred eleven, eleven hundred twenty, eleven hundred thirty-two,
eleven hundred thirty-four, eleven hundred thirty-five, eleven hundred
thirty-six, eleven hundred forty-two, eleven hundred forty-five and
eighteen hundred seventeen of this chapter, the following terms shall
have the following meanings:

(A) "Petroleum products" means diesel motor fuel as defined in
subdivision fourteen of section two hundred eighty-two of this chapter,
other than kerosene or propane used for residential purposes, or motor
fuel as defined in subdivision two of section two hundred eighty-two of
this chapter. The phrase "used for residential purposes" shall have the
same meaning as it has for purposes of section eleven hundred five-A of
this article.

(B) The term "distributor" shall have the same meaning as it has for
purposes of article twelve-A of this chapter, excluding persons who are
not required pursuant to section two hundred eighty-two-a to pay the tax
imposed thereby.

(C) The term "motor fuel" means motor fuel as defined in subdivision
two of section two hundred eighty-two of this chapter.

(D) The terms "filling station", "terminal" and "owner" shall have the
same meaning as they have for the purposes of article twelve-A of this
chapter.

(E) The term "diesel motor fuel" means diesel motor fuel as defined in
subdivision fourteen of section two hundred eighty-two of this chapter.

(F) The terms "highway diesel motor fuel" and "non-highway diesel
motor fuel" shall have the same meaning as they have for purposes of
article twelve-A of this chapter.

(iii) Notwithstanding the provisions of subparagraph (i) of this
paragraph, no cigarettes shall be sold or used in this state without
payment, and inclusion in the sales price of such cigarettes, of the tax
on cigarettes required to be prepaid pursuant to the provisions of
section eleven hundred three of this article except where a provision of
this article relating to cigarettes specifically provides otherwise and
except in the case of a sale or use subject to tax under section eleven
hundred five or eleven hundred ten, respectively, of this article.
Provided, however, except for such requirement of prepayment of tax
required by section eleven hundred three of this article, the provisions
of this subparagraph shall not otherwise modify the meaning of the term
"retail sale" as used in this article. For purposes of this subparagraph
and sections eleven hundred three, eleven hundred eleven, eleven hundred
fifteen, eleven hundred sixteen, eleven hundred twenty-one, eleven
hundred thirty-two, eleven hundred thirty-four, eleven hundred
thirty-five, eleven hundred thirty-six, eleven hundred thirty-eight,
eleven hundred forty-two and eleven hundred forty-five of this article
and eighteen hundred seventeen of this chapter, the terms "cigarette,"
"agent" and "package" shall have the same meaning that they have for
purposes of article twenty of this chapter.

(iv) (A) The term retail sale does not include:

(I) The transfer of tangible personal property to a corporation,
solely in consideration for the issuance of its stock, pursuant to a
merger or consolidation effected under the law of New York or any other
jurisdiction.

(II) The distribution of property by a corporation to its stockholders
as a liquidating dividend.

(III) The distribution of property by a partnership to its partners in
whole or partial liquidation.

(IV) The transfer of property to a corporation upon its organization
in consideration for the issuance of its stock.

(V) The contribution of property to a partnership in consideration for
a partnership interest therein.

(B) For an exception applicable to this subparagraph, see subdivision
(q) of section eleven hundred eleven of this article.

(v) Notwithstanding the provisions of subparagraph (i) of this
paragraph, the following sales of tangible personal property shall be
deemed to be retail sales: (A) a sale to a single member limited
liability company or a subsidiary for resale to its member or owner,
where such single member limited liability company or subsidiary is
disregarded as an entity separate from its owner for federal income tax
purposes (without reference to any special rules related to the
imposition of certain federal taxes), including but not limited to
certain employment and excise taxes; (B) a sale to a partnership for
resale to one or more of its partners; or (C) a sale to a trustee of a
trust for resale to one or more beneficiaries of such trust.

(5) Sale, selling or purchase. Any transfer of title or possession or
both, exchange or barter, rental, lease or license to use or consume
(including, with respect to computer software, merely the right to
reproduce), conditional or otherwise, in any manner or by any means
whatsoever for a consideration, or any agreement therefor, including the
rendering of any service, taxable under this article, for a
consideration or any agreement therefor.

(6) Tangible personal property. Corporeal personal property of any
nature. However, except for purposes of the tax imposed by subdivision
(b) of section eleven hundred five of this article, such term shall not
include gas, electricity, refrigeration and steam. Such term shall also
include pre-written computer software, whether sold as part of a
package, as a separate component, or otherwise, and regardless of the
medium by means of which such software is conveyed to a purchaser. Such
term shall also include newspapers and periodicals where the vendor
ships or delivers the entire edition or issue of the newspaper or
periodical, with or without the advertising included in the paper
edition or issue, but not including anything, other than advertising,
not in such paper edition or issue, to the purchaser by means of
telephony or telegraphy or other electronic media, but only where the
amount of the sale price to such purchaser of such newspaper or magazine
or the subscription price, in the case of a subscription to a newspaper
or periodical, including any charge by such vendor for shipping or
delivery to the purchaser, is separately stated to such purchaser.
However, such term shall not include a modular home that is permanently
affixed to real property, provided that, if a modular home is to be
removed from the realty, whether as a whole or disassembled, it and its
component parts shall be tangible personal property whether it is to be
sold as a whole or as pieces.

(7) Use. The exercise of any right or power over tangible personal
property or over any of the services which are subject to tax under
section eleven hundred ten of this article or pursuant to the authority
of article twenty-nine of this chapter, by the purchaser thereof, and
includes, but is not limited to, the receiving, storage or any keeping
or retention for any length of time, withdrawal from storage, any
installation, any affixation to real or personal property, or any
consumption of such property or of any such service subject to tax under
such section eleven hundred ten or pursuant to the authority of such
article twenty-nine. Without limiting the foregoing, use also shall
include the distribution of only tangible personal property, such as
promotional materials, or of any such service subject to tax under such
section eleven hundred ten or pursuant to the authority of such article
twenty-nine.

(8) Vendor. (i) The term "vendor" includes:

(A) A person making sales of tangible personal property or services,
the receipts from which are taxed by this article;

(B) A person maintaining a place of business in the state and making
sales, whether at such place of business or elsewhere, to persons within
the state of tangible personal property or services, the use of which is
taxed by this article;

(C) A person who solicits business either:

(I) by employees, independent contractors, agents or other
representatives; or

(II) by distribution of catalogs or other advertising matter, without
regard to whether such distribution is the result of regular or
systematic solicitation, if such person has some additional connection
with the state which satisfies the nexus requirement of the United
States constitution;
and by reason thereof makes sales to persons within the state of
tangible personal property or services, the use of which is taxed by
this article;

(D) A person who makes sales of tangible personal property or
services, the use of which is taxed by this article, and who regularly
or systematically delivers such property or services in this state by
means other than the United States mail or common carrier;

(E) A person who regularly or systematically solicits business in this
state by the distribution, without regard to the location from which
such distribution originated, of catalogs, advertising flyers or
letters, or by any other means of solicitation of business, to persons
in this state and by reason thereof makes sales to persons within the
state of tangible personal property, the use of which is taxed by this
article, if such solicitation satisfies the nexus requirement of the
United States constitution;

(F) A person making sales of tangible personal property, the use of
which is taxed by this article, where such person retains an ownership
interest in such property and where such property is brought into this
state by the person to whom such property is sold and the person to whom
such property is sold becomes or is a resident or uses such property in
any manner in carrying on in this state any employment, trade, business
or profession;

(G) Any other person making sales to persons within the state of
tangible personal property or services, the use of which is taxed by
this article, who may be authorized by the commissioner of taxation and
finance to collect such tax by part IV of this article;

(H) The state of New York, any of its agencies, instrumentalities,
public corporations (including a public corporation created pursuant to
agreement or compact with another state or Canada) or political
subdivisions when such entity sells services or property of a kind
ordinarily sold by private persons; and

(I) A seller of tangible personal property or services, the use of
which is taxed by this article if either (I) an affiliated person that
is a vendor as otherwise defined in this paragraph uses in the state
trademarks, service marks, or trade names that are the same as those the
seller uses; or (II) an affiliated person engages in activities in the
state that inure to the benefit of the seller, in its development or
maintenance of a market for its goods or services in the state, to the
extent that those activities of the affiliate are sufficient to satisfy
the nexus requirement of the United States constitution. For purposes of
this clause, "affiliated person" has the same meaning as in clause (B)
of subparagraph (v) of this paragraph. Nothing in this clause shall be
construed to narrow the scope of any other provision in this paragraph.
Notwithstanding the provisions of this clause, the activities in the
state of an affiliated person in providing accounting or legal services
or advice to a seller, or in directing the activities of a seller,
including, but not limited to, making decisions about (a) strategic
planning, (b) marketing, (c) inventory, (d) staffing, (e) distribution,
or (f) cash management, will not result in making the seller a vendor
under this paragraph.

(ii) (A) In addition, when in the opinion of the commissioner it is
necessary for the efficient administration of this article to treat any
salesman, representative, peddler or canvasser as the agent of the
vendor, distributor, supervisor or employer under whom he operates or
from whom he obtains tangible personal property sold by him, or for whom
he solicits business, the commissioner may, in his discretion, treat
such agent as the vendor jointly responsible with his principal,
distributor, supervisor or employer for the collection and payment over
of the tax. An unaffiliated person providing fulfillment services to a
purchaser shall not be treated as a vendor by the commissioner under
this paragraph with respect to such activity. For purposes of this
clause, persons are affiliated persons with respect to each other where
one of such persons has an ownership interest of more than five percent,
whether direct or indirect, in the other, or where an ownership interest
of more than five percent, whether direct or indirect, is held in each
of such persons by another person or by a group of other persons which
are affiliated persons with respect to each other.

(B) A person shall be deemed a vendor of the services enumerated in
paragraph nine of subdivision (c) of section eleven hundred five of this
article, liable for all the obligations of a vendor, including the
collection, reporting and remittance of the tax imposed under this
article and possessing all the rights of a vendor including the right to
an exclusion or a credit or refund of tax as provided in subdivision (e)
of section eleven hundred thirty-two of this article, with respect to
such services which are provided by a vendor thereof and are subject to
taxation under this article, where such person, its affiliate or agent
bills, on behalf of such vendor, either (I) as part of, or as a schedule
to, the statement of such person to its purchasers or (II) separately
(without regard to whether or not such person has customers of its own),
such enumerated services provided by such vendor. For the purpose of
this paragraph, "affiliate" means an entity which directly, indirectly
or constructively controls a vendor of such enumerated services or is
controlled by such vendor or is under the control of, along with such
vendor, a common parent. Provided, however, the provisions of this
clause shall not in any way be construed to otherwise limit or remove
the obligations and liabilities of any person with respect to the tax
imposed by this article.

(iii) For purposes of clause (D) of subparagraph (i) of this
paragraph, a person shall be presumed to be regularly or systematically
delivering property or services in this state if the cumulative total
number of occasions such person or his agent came into the state to
deliver property or services exceeded twelve during the preceding four
quarterly periods ending on the last day of February, May, August and
November, unless such person can demonstrate, to the satisfaction of the
commissioner, that he cannot reasonably be expected to come into the
state for such purposes on more than twelve occasions during the next
succeeding four quarterly periods ending on the last day of February,
May, August and November.

(iv) For purposes of clause (E) of subparagraph (i) of this paragraph,
a person shall be presumed to be regularly or systematically soliciting
business in this state if, for the immediately preceding four quarterly
periods ending on the last day of February, May, August and November,
the cumulative total of such person's gross receipts from sales of
property delivered in this state exceeds five hundred thousand dollars
and such person made more than one hundred sales of property delivered
in this state, unless such person can demonstrate, to the satisfaction
of the commissioner, that he cannot reasonably be expected to have gross
receipts in excess of five hundred thousand dollars or more than one
hundred sales of property delivered in this state for the next
succeeding four quarterly periods ending on the last day of February,
May, August and November.

(v) Notwithstanding any other provision of law, the term vendor shall
not include:

(A) a person who is not otherwise a vendor who purchases fulfillment
services carried on in New York by a person other than an affiliated
person; or

(B) a person who is not otherwise a vendor who owns tangible personal
property located on the premises of an unaffiliated person performing
fulfillment services for such person.

For purposes of this subparagraph, persons are affiliated persons with
respect to each other where one of such persons has an ownership
interest of more than five percent, whether direct or indirect, in the
other, or where an ownership interest of more than five percent, whether
direct or indirect, is held in each of such persons by another person or
by a group of other persons which are affiliated persons with respect to
each other.

(vi) For purposes of subclause (I) of clause (C) of subparagraph (i)
of this paragraph, a person making sales of tangible personal property
or services taxable under this article ("seller") shall be presumed to
be soliciting business through an independent contractor or other
representative if the seller enters into an agreement with a resident of
this state under which the resident, for a commission or other
consideration, directly or indirectly refers potential customers,
whether by a link on an internet website or otherwise, to the seller, if
the cumulative gross receipts from sales by the seller to customers in
the state who are referred to the seller by all residents with this type
of an agreement with the seller is in excess of ten thousand dollars
during the preceding four quarterly periods ending on the last day of
February, May, August, and November. This presumption may be rebutted by
proof that the resident with whom the seller has an agreement did not
engage in any solicitation in the state on behalf of the seller that
would satisfy the nexus requirement of the United States constitution
during the four quarterly periods in question. Nothing in this
subparagraph shall be construed to narrow the scope of the terms
independent contractor or other representative for purposes of subclause
(I) of clause (C) of subparagraph (i) of this paragraph.

(9) Capital improvement. (i) An addition or alteration to real
property which:

(A) Substantially adds to the value of the real property, or
appreciably prolongs the useful life of the real property; and

(B) Becomes part of the real property or is permanently affixed to the
real property so that removal would cause material damage to the
property or article itself; and

(C) Is intended to become a permanent installation.

(ii) A mobile home shall not constitute an addition or capital
improvement to real property, property or land, regardless of the nature
of its installation.

(iii) Notwithstanding the provisions of subparagraph (i) of this
paragraph: (A) Floor covering, such as carpet, carpet padding, linoleum
and vinyl roll flooring, carpet tile, linoleum tile and vinyl tile,
installed as the initial finished floor covering in new construction or
a new addition to or total reconstruction of existing construction shall
constitute an addition or capital improvement to real property, property
or land; and

(B) Floor covering, such as carpet, carpet padding, linoleum and vinyl
roll flooring, carpet tile, linoleum tile and vinyl tile, installed
other than as described in clause (A) of this subparagraph shall not
constitute an addition or capital improvement to real property, property
or land.

(10) Mobile home. (i) A structure which is:

(A) A type of manufactured housing; and

(B) Not self-propelled; and

(C) Transportable in one or more sections:

(I) that may be folded, collapsed or telescoped when being towed and
expanded later to provide additional cubic capacity, or

(II) that may be separately towable and designed to be joined into one
integral structure capable of being again separated into the sections
for repeated towing; and

(D) Built on a permanent chassis, comprised of frame and wheels, that
is to be connected to utilities; and

(E) Designed to be used as a permanent dwelling, with or without
permanent foundation; and

(F) Used for residential or commercial purposes.

(ii) The term "mobile home" shall also include structures commonly
called "double wides".

(iii) The term "mobile home" shall not include:

(A) Structures designed and constructed primarily for temporary living
quarters, recreations, camping or travel; or

(B) Furniture, fixtures, furnishings, appliances, attachments or
similar tangible personal property not incorporated as component parts
of a mobile home at the time of manufacture.

(11) New mobile home. A mobile home which is sold for the first time
at retail including all components incorporated into such mobile home at
the time of manufacture and remaining unchanged at the time of the first
retail sale thereof.

(12) Promotional materials. Any advertising literature, other related
tangible personal property (whether or not personalized by the
recipient's name or other information uniquely related to such person)
and envelopes used exclusively to deliver the same. Such other related
tangible personal property includes, but is not limited to, free gifts,
complimentary maps or other items given to travel club members,
applications, order forms and return envelopes with respect to such
advertising literature, annual reports, prospectuses, promotional
displays and Cheshire labels but does not include invoices, statements
and the like. Promotional materials shall also include paper or ink
furnished to a printer for use in providing the services of producing,
printing or imprinting promotional materials or in producing, printing
or imprinting promotional materials, where such paper and ink become a
physical component part of the promotional materials and such printer
sells such services or such promotional materials to the person who
furnished the paper and ink to such printer.

(13) Telephone answering service. A service that consists of taking
messages by telephone and transmitting such messages to the purchaser of
the service or at the purchaser's direction, but not including such
service if it is merely an incidental element of a different or other
service purchased by the customer.

(14) Pre-written computer software. Computer software (including
pre-written upgrades thereof) which is not software designed and
developed by the author or other creator to the specifications of a
specific purchaser. The combining of two or more pre-written computer
software programs or pre-written portions thereof does not cause the
combination to be other than pre-written computer software. Pre-written
software also includes software designed and developed by the author or
other creator to the specifications of a specific purchaser when it is
sold to a person other than such purchaser. Where a person modifies or
enhances computer software of which such person is not the author or
creator, such person shall be deemed to be the author or creator only of
such person's modifications or enhancements. Pre-written software or a
pre-written portion thereof that is modified or enhanced to any degree,
where such modification or enhancement is designed and developed to the
specifications of a specific purchaser, remains pre-written software;
provided, however, that where there is a reasonable, separately stated
charge or an invoice or other statement of the price given to the
purchaser for such modification or enhancement, such modification or
enhancement shall not constitute pre-written computer software.

(15) Clothing and footwear. (i) Clothing and footwear to be worn by
human beings, but not including costumes or rented formal wear, and (ii)
fabric, thread, yarn, buttons, snaps, hooks, zippers and like items
which are used or consumed to make or repair such clothing (other than
such costumes or rented formal wear) and which become a physical
component part of such clothing, but not including such items made from
pearls, precious or semi-precious stones, jewels or metals, or
imitations thereof.

(16) Commercial vessel. A vessel used primarily (i) to transport
persons or property, for hire, (ii) by the purchaser of the vessel to
transport such person's tangible personal property in the conduct of
such person's business, or (iii) for both such purposes.

(17) Commercial aircraft. Aircraft used primarily (i) to transport
persons or property, for hire, (ii) by the purchaser of the aircraft to
transport such person's tangible personal property in the conduct of
such person's business, or (iii) for both such purposes. Transporting
persons for hire does not include transporting agents, employees,
officers, members, partners, managers or directors of affiliated
persons. Persons are affiliated persons with respect to each other where
one of the persons has an ownership interest of more than five percent,
whether direct or indirect, in the other, or where an ownership interest
of more than five percent, whether direct or indirect, is held in each
of the persons by another person or by a group of other persons that are
affiliated persons with respect to each other. For an exception to the
exclusions from the definition of "retail sale" applicable to aircraft,
see subdivision (q) of section eleven hundred eleven of this article.

18. Fulfillment services. Any of the following services performed by
an entity on its premises on behalf of a purchaser:

(i) the acceptance of orders electronically or by mail, telephone,
telefax or internet;

(ii) responses to consumer correspondence and inquiries electronically
or by mail, telephone, telefax or internet;

(iii) billing and collection activities; or

(iv) the shipment of orders from an inventory of products offered for
sale by the purchaser.

(19) Farming. The term "farming" includes agriculture, floriculture,
horticulture, aquaculture and silviculture; stock, dairy, poultry,
fruit, fur bearing animal, graping, truck and tree farming; ranching;
operating nurseries, greenhouses, vineyard trellises or other similar
structures used primarily for the raising of agricultural,
horticultural, vinicultural, viticultural, floricultural or
silvicultural commodities; operating orchards; raising, growing and
harvesting crops, livestock and livestock products, as defined in
subdivision two of section three hundred one of the agriculture and
markets law; and raising, growing and harvesting woodland products,
including, but not limited to, timber, logs, lumber, pulpwood, posts and
firewood.

(20) Commercial horse boarding operation. "Commercial horse boarding
operation" shall have the same meaning that such term has in subdivision
thirteen of section three hundred one of the agriculture and markets
law.

(22) (A) "Prepaid telephone calling service" means the right to
exclusively purchase telecommunication services, that must be paid for
in advance and enable the origination of one or more intrastate,
interstate or international telephone calls using an access number (such
as a toll free network access number) and/or authorization code, whether
manually or electronically dialed, for which payment to a vendor must be
made in advance, whether or not that right is represented by the
transfer by the vendor to the purchaser of an item of tangible personal
property. Such term, except with respect to the tax imposed by section
one hundred eighty-six-e of article nine of this chapter, includes a
prepaid mobile calling service. In no event shall a credit card
constitute a prepaid telephone calling service. If the sale or recharge
of a prepaid telephone calling service does not take place at the
vendor's place of business, it shall be conclusively determined to take
place at the purchaser's shipping address or, if there is no item
shipped, at the purchaser's billing address or the location associated
with the purchaser's mobile telephone number, or, if the vendor does not
have the address or the location associated with the customer's mobile
telephone number, at such address, as approved by the commissioner, that
reasonably reflects the customer's location at the time of the sale or
recharge.

(B) "Prepaid mobile calling service" means the right to use a
commercial mobile radio service, whether or not sold with other property
or services, that must be paid for in advance and is sold for use over a
specified period of time or in predetermined units or dollars that
decline with use in a known amount, whether or not that right is
represented by or includes the transfer to the purchaser of an item of
tangible personal property.

(23) Qualified empire zone enterprise. The term "qualified empire zone
enterprise" shall have the same meaning that such term has in section
fourteen of this chapter for purposes of this article and article
twenty-nine of this chapter.

(24) "Mobile telecommunications service" shall mean commercial mobile
radio service. "Mobile telecommunications service" does not include
prepaid telephone calling service or air-ground radio telephone service
as defined in section 22.99 of title 47 of the code of federal
regulations as in effect on June first, nineteen hundred ninety-nine.

(25) "Commercial mobile radio service" and "mobile service" shall have
the same meanings as in section 20.3 of title 47 of the code of federal
regulations in effect on June first, nineteen hundred ninety-nine, to
wit:

(i) "Commercial mobile radio service." A mobile service that is:
(A)(I) provided for profit, i.e., with the intent of receiving
compensation or monetary gain; (II) an interconnected service; and (III)
available to the public, or to such classes of eligible users as to be
effectively available to a substantial portion of the public; or (B) the
functional equivalent of such a mobile service described in clause (A)
of this subparagraph.

(ii) "Mobile service." A radio communications service carried on
between mobile stations or receivers and land stations, and by mobile
stations communicating among themselves, and includes: (A) both one-way
and two-way radio communications services; (B) a mobile service which
provides a regularly interacting group of base, mobile, portable, and
associated control and relay stations (whether licensed on an
individual, cooperative, or multiple basis) for private one-way or
two-way land mobile radio communications by eligible users over
designated areas of operation; and (C) any service for which a license
is required in a personal communications service under part 24 of title
47 of the code of federal regulations in effect on June first, nineteen
hundred ninety-nine.

(26) "Place of primary use" shall mean the street address
representative of where a mobile telecommunications customer's use of
the mobile telecommunications service primarily occurs, and must be: (i)
the residential street address or the primary business street address of
the mobile telecommunications customer and (ii) within the licensed
service area of the home service provider.

(27)(i) "Mobile telecommunications customer" shall mean either (A) a
person or entity that contracts with a home service provider for mobile
telecommunications services; or (B) if the end user of mobile
telecommunications services is not the contracting party, the end user
of the mobile telecommunications service, but this clause (B) applies
only for the purpose of determining the place of primary use. "Mobile
telecommunications customer" does not include either (A) a reseller of
mobile telecommunications service; or (B) a serving carrier under an
arrangement to serve a mobile telecommunications customer outside the
home service provider's licensed service area.

(ii) "Home service provider" shall mean a facilities-based carrier or
reseller as defined in subparagraph (iv) of this paragraph, with which
the mobile telecommunications customer contracts for the provision of
mobile telecommunications service.

(iii) "Licensed service area" shall mean the geographic area in which
a home service provider is authorized by law or contract to provide
mobile telecommunications service to a mobile telecommunications
customer.

(iv) "Reseller" shall mean a provider who purchases telecommunications
service from another telecommunications service provider and then
resells, uses as a component part of, or integrates the purchased
services into a mobile telecommunications service. "Reseller" does not
include a serving carrier with which a home service provider arranges
for the services to its mobile telecommunications customers outside the
home service provider's licensed service area.

(v) "Serving carrier" shall mean a facilities-based carrier providing
mobile telecommunications service to a mobile telecommunications
customer outside the home service provider's or reseller's licensed
service area.

(28) "Taxing jurisdiction" shall mean any of the several states, the
District of Columbia, or any territory or possession of the United
States, any municipality, city, county, township, parish, transportation
district, or assessment jurisdiction, or any other political subdivision
within the territorial limits of the United States with the authority to
impose a tax, charge, or fee.

* (29) "E85" shall have the same meaning as in subdivision twenty-two
of section two hundred eighty-two of this chapter.

* NB Repealed September 1, 2026

* (30) "B20" shall have the same meaning as in subdivision
twenty-three of section two hundred eighty-two of this chapter.

* NB Repealed September 1, 2026

* (31) "CNG" shall have the same meaning as in subdivision twenty-four
of section two hundred eighty-two of this chapter.

* NB Repealed September 1, 2026

* (32) "Hydrogen" shall have the same meaning as in subdivision
twenty-five of section two hundred eighty-two of this chapter.

* NB Repealed September 1, 2026

(33) Modular home. A one- to three-family residential structure
constructed at the building site from modular home modules, where the
modules are connected and such structure is finished using building
materials or other tangible personal property at the building site, such
modular home conforms to the building and other codes applicable to one-
to three-family site-built homes in the jurisdiction where such building
site is located, and such finished modular home constitutes a capital
improvement. "Modular home" shall not include (i) a structure or portion
of a structure built on-site, whether built by the modular home
installer or another person, using building materials delivered to the
site, even if some of such materials were manufactured, produced, or
assembled off-site, such as, by way of example and not by way of
limitation, concrete blocks, windows, door units, wall or roof panels,
trusses and dormers; (ii) a shed, gazebo, any unattached garage or the
like (even if made or built by a manufacturer of modular home modules);
or (iii) a mobile home.

(34) Transportation service. The service of transporting, carrying or
conveying a person or persons by livery service; whether to a single
destination or to multiple destinations; and whether the compensation
paid by or on behalf of the passenger is based on mileage, trip, time
consumed or any other basis. A service that begins and ends in this
state is deemed intra-state even if it passes outside this state during
a portion of the trip. However, transportation service does not include
transportation of persons in connection with funerals. Transportation
service includes transporting, carrying, or conveying property of the
person being transported, whether owned by or in the care of such
person. Notwithstanding the foregoing, transportation service shall not
include a TNC prearranged trip, as that term is defined in article
forty-four-B of the vehicle and traffic law, that is subject to tax
under article twenty-nine-B of this chapter. In addition to what is
included in the definition of "receipt" in paragraph three of this
subdivision, receipts from the sale of transportation service subject to
tax include any handling, carrying, baggage, booking service,
administrative, mark-up, additional, or other charge, of any nature,
made in conjunction with the transportation service. Livery service
means service provided by limousine, black car or other motor vehicle,
with a driver, but excluding (i) a taxicab, (ii) a bus, and (iii), in a
city of one million or more in this state, an affiliated livery vehicle,
and excluding any scheduled public service. Limousine means any vehicle
with a seating capacity of up to fourteen persons, excluding the driver,
and any vehicle with a seating capacity of between fifteen and twenty
persons, excluding the driver, that has only two axles and four tires.
"Bus" means any motor vehicle with a seating capacity of at least
fifteen persons, excluding the driver, that does not otherwise qualify
as a limousine. Black car means a for-hire vehicle dispatched from a
central facility. "Affiliated livery vehicle" means a for-hire motor
vehicle with a seating capacity of up to six persons, including the
driver, other than a black car or luxury limousine, that is authorized
and licensed by the taxi and limousine commission of a city of one
million or more to be dispatched by a base station located in such a
city and regulated by such taxi and limousine commission; and the
charges for service provided by an affiliated livery vehicle are on the
basis of flat rate, time, mileage, or zones and not on a garage to
garage basis.

(35) Modular home modules. The component sections that will be
installed on-site to construct a modular home, each of which sections is
(i) engineered and manufactured in a factory, (ii) shipped or delivered
to the building site on a truck or other vehicle, (iii) installed at the
site, on a permanent foundation, to become part of the modular home and
(iv) not by itself suitable for occupancy. Every group of modules that
will be installed in this state as a modular home, or, if a modular home
is to be built from a single module, that single module, shall, prior to
shipment from the place where it is made, bear the insignia of approval
issued by the department of state pursuant to the authority of article
eighteen of the executive law and regulations thereunder; and the
department of state shall cooperate with the commissioner and furnish
such information as the commissioner requests to carry out this article
and its purposes. A modular home module shall include tangible personal
property shipped or delivered with the module from the factory by the
manufacturer at the same time the module is shipped or delivered, such
as exterior siding, roof shingles, roof vent pipes, interior trim
pieces, paint, and interior doors, and supplies required and used to
install them, but only if that property (i) was engineered or designed
to be an integral component part of the module, (ii) matches, or is
essential to the functioning of, the module, (iii) was not installed in
the module at the time the module was made only because it would be
damaged during, or interfere with, shipping or delivery of the module to
the building site, (iv) will be permanently installed in the module at
the building site by the manufacturer or by the purchaser of the module
or by the contractor of either of them, (v) is listed in full on the
contract, bill of sale, invoice or other memorandum of price given to
the purchaser or buyer, or in an addendum thereto, true copies of which
the manufacturer shall retain as part of the records required to be kept
by this article and make available on request, and (vi) is included in
the sale price of the module, without any additional charge. A modular
home module shall not include (i) furniture, fixtures, furnishings,
appliances, attachments or similar tangible personal property not
incorporated as component parts of the module at the time of its
manufacture or (ii) building materials or other tangible personal
property used to connect the modules or finish the modular home at the
building site.

(36) New modular home module. A modular home module sold for the first
time at retail.

(37) Electronic news service. (i) A service delivered, furnished or
provided to or accessed by the purchaser electronically or digitally
that meets all of the following conditions:

(A) The service's predominant purpose is the presentation of news
content, which it prominently features;

(B) The service's news content (I) includes general news that is
accessible without use of a search function; (II) is newly published or
updated at least daily unless the service specifies some other interval,
provided, however, that the news content must be newly updated or
published within a twenty-four hour period that precedes or immediately
follows a time when the non-news content is newly published or updated;
and (III) is predominantly purchased from contracted wire services or
written or produced by the employees or engaged independent contractors
of the person providing the service, including, but not limited to,
employees or engaged independent contractors of any affiliate of such
person;

(C) The service is available to the public;

(D) The service holds itself out as a "news service," "newspaper,"
"magazine," "periodical," "journal," "post," or words of similar import
and does not hold itself out as something other than one of such terms
or a term of similar import.

(E) The service has continuity as to its title and the general nature
of its content over time;

(F) The service is not, in whole or in substantial part, a listing,
catalog, database, or compilation;

(G) The only search function the service offers without a
separately-stated, reasonable charge is a search of the service's or of
any of its affiliates' present or past news content. Provided, a service
that satisfies all the clauses of this subparagraph except this clause
may still qualify as an electronic news service for purposes of this
paragraph if the provider of the service can show that the non-news
content available through the search function is merely an incidental
part of the service, including, for example, by showing that the cost to
the person providing the service of any non-news content available
through the search function is less than the cost to that person of
providing the news content available through the service. Provided,
further, that a purchaser's access to the service's search function for
which there is a separately-stated, reasonable charge to the purchaser
shall be treated separately and is not relevant as to whether this
clause is satisfied.

(ii) The following definitions apply to subparagraph (i) of this
paragraph and subdivision (gg) of section eleven hundred fifteen of this
article:

(A) "News content" means the articles, photographs, and video and
audio material concerning general news or specialized news and does not
include listings, advertisements, catalogs, compilations, databases, or
the like.

(B) "Non-news content" means any information other than news content.

(C) "Article" means a prose composition, including commentaries,
reviews, editorials, op-eds, letters to the editor, and reader comments
on articles. The term does not include listings, advertisements,
catalogs, compilations, databases, or the like.

(D) "General news" means matters of general interest and reports of
current events.

(E) "Specialized news" means matters of a specialized interest, such
as legal, mercantile, financial, theatrical, entertainment news,
political, religious, or sporting matters.

(F) "Cap amount" means three hundred percent of the annualized average
daily newsstand price of the three newspapers with the largest total
paid national daily circulation. The commissioner shall determine the
cap amount annually and shall cause it to be published on the
department's website and give other appropriate general notice thereof.
The commissioner shall determine and publish the cap amount annually by
April first based on prices charged during the first week of January of
that year, which cap amount shall apply for the succeeding twelve-month
period commencing June first and ending May thirty-first. The
calculation and publication of the cap amount under this clause shall
not be included within paragraph (a) of subdivision two of section one
hundred two of the state administrative procedure act relating to the
definition of a rule.

(G) "Affiliate" means, with respect to any person, any other person
that, directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such
person, and the term "control" (including the terms "controlled by" and
"under common control with") means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such person, whether through ownership of
voting securities, by contract or otherwise.

(38) Electronic periodical. (i) A publication delivered, furnished or
provided to or accessed by the purchaser electronically or digitally
that meets all of the following conditions:

(A) The publication's predominant purpose is the presentation of news
content, which it prominently features;

(B) The publication is published at stated intervals, at least as
frequently as four times a year but no more frequently than weekly, and
is not updated between issues. However, the incidental provision of
additional news content between issues will not prevent the requirement
in this clause from being satisfied. In determining whether the news
content added between issues is incidental, among the factors the
commissioner is to consider is the amount of the news content added
between issues relative to the news content in preceding issues and the
frequency of the provision of additional news content between issues.
Provided that the display of reader comments or letters to the editor
between issues does not affect whether this clause is satisfied.

(C) The publication's news content is purchased from contracted wire
services or written or produced by multiple employees or engaged
independent contractors of the person providing the publication,
including, but not limited to, employees or engaged independent
contractors of any affiliate of such person;

(D) The publication is available to the public;

(E) The publication holds itself out as a "magazine," "periodical" or
words of similar import and does not hold itself out as something other
than a "magazine," "periodical," or words of similar import;

(F) The publication has continuity as to its title and the general
nature of its content over time;

(G) The publication is not, in whole or in substantial part, a
listing, catalog, database, or compilation; and

(H) The only search function the publication offers without a
separately-stated, reasonable charge is a search of the publication's or
of an affiliate's present or past news content. However: (I) the
publication's provision of access, at no additional charge, to a search
engine that, apart from the service, is otherwise available to the
public for free is not relevant as to whether this clause is satisfied;
and (II) the publication's provision of access to a search function for
which there is a separately-stated, reasonable charge to the purchaser
shall be treated separately and is not relevant as to whether this
clause is satisfied.

(ii) For purposes of subparagraph (i) of this paragraph and the
exemption provided for electronic periodicals in subdivision (gg) of
section eleven hundred fifteen of this article, "articles" has the same
meaning as in subparagraph (ii) of paragraph thirty-seven of subdivision
(b) of this section and "news content" means articles, photographs, and
video and audio material devoted to literature, the sciences, the arts,
news, an industry, profession, sport or other field of endeavor, and
does not include listings, advertisements, catalogs, compilations,
databases, or the like.

(c) When used in this article for the purposes of the tax imposed
under subdivision (e) of section eleven hundred five, the following
terms shall mean:

(1) Hotel. A building or portion of it which is regularly used and
kept open as such for the lodging of guests. The term "hotel" includes
an apartment hotel, a motel, boarding house or club, whether or not
meals are served.

(2) Occupancy. The use or possession, or the right to the use or
possession, of any room in a hotel. "Right to the use or possession"
includes the rights of a room remarketer as described in paragraph eight
of this subdivision.

(3) Occupant. A person who, for a consideration, uses, possesses, or
has the right to use or possess, any room in a hotel under any lease,
concession, permit, right of access, license to use or other agreement,
or otherwise. "Right to use or possess" includes the rights of a room
remarketer as described in paragraph eight of this subdivision.

(4) Operator. Any person operating a hotel. Such term shall include a
room remarketer and such room remarketer shall be deemed to operate a
hotel, or portion thereof, with respect to which such person has the
rights of a room remarketer.

(5) Permanent resident. Any occupant of any room or rooms in a hotel
for at least ninety consecutive days shall be considered a permanent
resident with regard to the period of such occupancy.

(6) Rent. The consideration received for occupancy, including any
service or other charge or amount required to be paid as a condition for
occupancy, valued in money, whether received in money or otherwise and
whether received by the operator or a room remarketer or another person
on behalf of either of them.

(7) Room. Any room or rooms of any kind in any part or portion of a
hotel, which is available for or let out for any purpose other than a
place of assembly.

(8) Room remarketer. A person who reserves, arranges for, conveys, or
furnishes occupancy, whether directly or indirectly, to an occupant for
rent in an amount determined by the room remarketer, directly or
indirectly, whether pursuant to a written or other agreement. Such
person's ability or authority to reserve, arrange for, convey, or
furnish occupancy, directly or indirectly, and to determine rent
therefor, shall be the "rights of a room remarketer". A room remarketer
is not a permanent resident with respect to a room for which such person
has the rights of a room remarketer.

(d) When used in this article for purposes of the tax imposed under
subdivision (f) of section eleven hundred five, the following terms
shall mean:

(1) Active annual member. A member who is not a life member but who
enjoys full club privileges as distinguished from the privileges enjoyed
by a person holding a nonresident membership, an associate membership,
or other partial or restricted membership.

(2) Admission charge. The amount paid for admission, including any
service charge and any charge for entertainment or amusement or for the
use of facilities therefor.

(3) Amusement charge. Any admission charge, dues or charge of roof
garden, cabaret or other similar place.

(4) Charge of a roof garden, cabaret or other similar place. Any
charge made for admission, refreshment, service, or merchandise at a
roof garden, cabaret or other similar place.

(5) Dramatic or musical arts admission charge. Any admission charge
paid for admission to a theatre, opera house, concert hall or other hall
or place of assembly for a live dramatic, choreographic or musical
performance.

(6) Dues. Any dues or membership fee including any assessment,
irrespective of the purpose for which made, and any charges for social
or sports privileges or facilities, except charges for sports privileges
or facilities offered to members' guests which would otherwise be exempt
if paid directly by such guests.

(7) Initiation fee. Any payment, contribution, or loan, required as a
condition precedent to membership, whether or not such payment,
contribution or loan is evidenced by a certificate of interest or
indebtedness or share of stock, and irrespective of the person or
organization to whom paid, contributed or loaned.

(8) Lessor. Any person who is the owner, licensee or lessee of any
place of amusement or roof garden, cabaret or other similar place which
he leases, subleases or grants a license to use to other persons who
make amusement charges or admission charges.

(9) Patron. Any person who pays an amusement charge or who is
otherwise required to pay the tax imposed under such subdivision (f) of
section eleven hundred five.

(10) Place of amusement. Any place where any facilities for
entertainment, amusement, or sports are provided.

(11) Recipient. Any person who collects or receives or is under a duty
to collect an amusement charge.

(12) Roof garden, cabaret or other similar place. Any roof garden,
cabaret or other similar place which furnishes a public performance for
profit, but not including a place where merely live dramatic or musical
arts performances are offered in conjunction with the serving or selling
of food, refreshment or merchandise, so long as such serving or selling
of food, refreshment or merchandise is merely incidental to such
performances.

(13) Social or athletic club. Any club or organization of which a
material purpose or activity is social or athletic.

(14) Honorary member. A membership granted in a social or athletic
club without payment of dues which may provide full or partial club
privileges.

(e) When used in this article for the purposes of the taxes imposed
under subdivision (a) of section eleven hundred five of this article and
by section eleven hundred ten of this article, the following terms shall
mean:

(1) Marketplace provider. A person who, pursuant to an agreement with
a marketplace seller, facilitates sales of tangible personal property by
such marketplace seller or sellers. A person "facilitates a sale of
tangible personal property" for purposes of this paragraph when the
person meets both of the following conditions: (A) such person provides
the forum in which, or by means of which, the sale takes place or the
offer of sale is accepted, including a shop, store, or booth, an
internet website, catalog, or similar forum; and (B) such person or an
affiliate of such person collects the receipts paid by a customer to a
marketplace seller for a sale of tangible personal property, or
contracts with a third party to collect such receipts. For purposes of
this paragraph, a "sale of tangible personal property" shall not include
the rental of a passenger car as described in section eleven hundred
sixty of this chapter but shall include a lease described in subdivision
(i) of section eleven hundred eleven of this article and peer-to-peer
car sharing as described in section nine hundred of the general business
law. For purposes of this paragraph, persons are affiliated if one
person has an ownership interest of more than five percent, whether
direct or indirect, in another, or where an ownership interest of more
than five percent, whether direct or indirect, is held in each of such
persons by another person or by a group of other persons that are
affiliated persons with respect to each other. Notwithstanding anything
in this paragraph, a person who is not otherwise registered pursuant to
section eleven hundred thirty-four of this article is not a marketplace
provider if such person has no physical presence in New York and, for
the immediately preceding four quarterly periods ending on the last day
of February, May, August and November, can show that the cumulative
total gross receipts of sales it has made or facilitated of property
delivered in this state does not exceed five hundred thousand dollars or
that such person has not made or facilitated more than one hundred sales
of property delivered in this state. However, such person may elect to
register as a marketplace provider, and, once registered, will be
subject to the provisions of this article.

(2) Marketplace seller. Any person, whether or not such person is
required to obtain a certificate of authority under section eleven
hundred thirty-four of this article, who has an agreement with a
marketplace provider under which the marketplace provider will
facilitate sales of tangible personal property by such person within the
meaning of paragraph one of this subdivision.