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Sales tax advisory opinions - 2009 (TSB-A)

An Advisory Opinion is issued at the request of a person or entity.  It is limited to the facts set forth therein and is binding on the Department only with respect to the person or entity to whom it is issued and only if the person or entity fully and accurately describes all relevant facts.  An Advisory Opinion is based on the law, regulations, and Department policies in effect as of the date the Opinion is issued or for the specific time period at issue in the Opinion.
 
Sales tax advisory opinions - 2009 (TSB-A)
NumberPetitioner
TSB-A-09(64)S Whether disbursements made by a landlord to reimburse a tenant for certain tenant improvements to the leased premises are subject to sales tax
TSB-A-09(4)M, (63)S Whether unenhanced diesel motor fuel used to manufacture industrial gases such as oxygen and nitrogen is used in the production of tangible personal property for purposes of the Articles 12-A, 13-A, and 28 taxes
TSB-A-09(62)S BP Wind Energy North America, Inc. - Whether the construction and installation of a commercial wind farm on leased premises are considered a capital improvement and are subject to sales tax
TSB-A-09(61)S Whether lighting design services are subject to sales tax
TSB-A-09(17)C, (60)S International Business Machines Corp. - Whether (1) petitioner's communication network services, including value added network and application services, are telecommunication services subject to sales tax and the excise tax imposed by Tax Law §186-e; (2) petitioner may use a reasonable method to apportion receipts from its services to New York State; and (3) petitioner's services are Internet access services exempt from tax
TSB-A-09(59)S Whether the components used to construct and operate a commercial wind farm, and the services of assembling and installing these components, qualify for the production exemption under Tax Law §§1105-B and 1115(a)(12)
TSB-A-09(58)S Whether rent payments that include utilities, where the utilities are provided on an unmetered basis, are subject to sales tax under Tax Law §1105(b)
TSB-A-09(57)S Whether receipts from the rental of photo studio space are subject to sales tax
TSB-A-09(56)S Whether (1) the sales of photographs in tangible or electronic form, and (2) the purchases of various property and services used in producing a photo shoot and creating the photographs, are subject to sales tax
TSB-A-09(55)S Whether (1) web-based reports that allow retailers, shopping centers, and real estate developers to assess the potential success of specific retail brands for a given location are subject to sales tax under Tax Law §1105(c)(1) or1105(c)(9), and (2) the seller may situs these services to New York based on information from its customers' purchase requests
TSB-A-09(54)S Whether sales of fudge, halva, maple sugar candy, sushi, or gift baskets containing food products are subject to sales tax
TSB-A-09(53)S Whether receipts for providing child care at an indoor facility are subject to sales tax
TSB-A-09(52)S Whether registration and listing fees for an on-line auction service are subject to sales tax
TSB-A-09(51)S Whether waste management services are subject to sales tax
TSB-A-09(50)S Whether certain service plans offered by an automobile manufacturer for properly-equipped vehicles, including emergency and roadside assistance services, navigational services, concierge services, and "hands-free" telephone services, are subject to the additional 5% tax sales tax imposed by Tax Law §1105(c)(9)(ii)
TSB-A-09(49)S Whether purchases of waste disposal services by a contractor in connection with its contract with a village in New York to operate and maintain the village's waste treatment facilities are subject to sales tax
TSB-A-09(48)S Whether sales of a collagen implant for use by medical practitioners in the treatment of urinary incontinence are subject to sales tax
TSB-A-09(47)S Whether purchases of dermal fillers by a medical practitioner for use in the performance of surgical procedures are subject to sales tax
TSB-A-09(46)S Whether receipts pertaining to translation services are subject to sales tax
TSB-A-09(45)S Whether the service of providing a driver to drive a customer's vehicle, without providing any vehicle, constitutes a transportation service subject to sales tax under Tax Law §1105(c)(10)
TSB-A-09(44)S Jones Day - Whether fees for (1) web advertising services, (2) customer support services for web advertisers, and (3) online applications that add functionality to advertisers' web sites are subject to sales tax
TSB-A-09(43)S Whether a cleaning and restoration business that cleans buildings that have suffered smoke or water damage may purchase dehumidifiers and air movers (fans) exempt from sales tax as purchases for resale
TSB-A-09(42)S Whether an automobile repair shop may pass through to its customer the costs (including sales tax) paid by the shop on items used in the repair process, and collect tax on the total bill including those costs
TSB-A-09(41)S Whether receipts from licenses to use software are subject to sales tax when the software may be installed on the customer's server or accessed on the seller's server
TSB-A-09(40)S Whether payments by a publisher of "e-newsletters" to independent contractors who select content and prepare its "e-newsletters" are subject to sales tax under Tax Law §1105(c)(1)
TSB-A-09(39)S Whether a credit is allowed for prepaid sales tax on the number of gallons of motor fuel lost due to shrinkage, evaporation and handling in underground tanks at retail gasoline stations
TSB-A-09(38)S Whether "Fruit Snacks," Fruit Gushers," and "Craisins" are exempt from sales tax under Tax Law §1115(a)(1)
TSB-A-09(37)S National Football League - Whether fees paid for the license to use payroll processing software applications and for related items are subject to sales tax
TSB-A-09(36)S Whether machinery and equipment that comprise a power frequency regulation facility which will support a more stable and reliable electrical grid qualify for the production exemption from sales tax under Tax Law §1115(a)(12)
TSB-A-09(35)S Whether purchases of garbage bags and trash can liners for use in providing cleaning services are subject to sales tax
TSB-A-09(34)S Whether rental fees and related charges for renting reusable food containers to farmers are exempt from sales tax under Tax Law, §1115(a)(19 if the containers are used to ship produce to retail food stores
TSB-A-09(33)S Whether receipts from the sale of logistics management products, including software that is accessed by customers over the Internet, are subject to sales tax
TSB-A-09(32)S Whether sales and use tax applies to the rental of cranes to a subcontractor working on a construction project at the World Trade Center for the  Port Authority of New York and New Jersey
TSB-A-09(31)S Whether purchases of utilities and fuel oil by a reseller of liquid asphalt for use in reheating the liquid asphalt for sale are exempt from sales and use tax under Tax Law §§1115(a)(12) and 1115(c)
TSB-A-09(30)S Whether a fruit distributor's purchases of tangible personal property and utilities for use in storing, cleaning, sorting, and packaging fruit for sale are exempt from sales and use tax under Tax Law §§1115(a)(6) and 1115(c)(2)
TSB-A-09(29)S Whether a customer is entitled to a full refund of the sales tax paid on merchandise when a customer returns the merchandise, but receives less than the original purchase price as a refund
TSB-A-09(28)S Whether sales of asphalt delivered at a railway terminal in New York are subject to sales tax
TSB-A-09(27)S Whether the provision of individual free-standing garages to residential tenants of an apartment complex constitutes the sale of taxable parking, garaging, or storing services under Tax Law §1105(c)(6)
TSB-A-09(26)S Whether charges for the use of driving facilities (i.e., a road course for motor vehicles) are subject to sales tax
TSB-A-09(25)S Homecare Software Solutions LLC - Whether charges for online applications that are used by homecare agencies to track patient care and employee time and attendance, and for billing purposes, are subject to sales tax
TSB-A-09(9)C, (24)S NovaTel, Ltd. - Whether telecommunications services sold to offshore call centers are subject to sales tax and the excise tax imposed by section 186-e of the Tax Law
TSB-A-09(23)S Whether purchases of aircraft for use in a fractional ownership program, or payments by customers participating in the program, are subject to sales tax
TSB-A-09(22)S Whether separate charges by a food store for providing a personal shopping service and for home delivery are subject to sales tax
TSB-A-09(21)S Whether receipts from the sale of product development services and related items, and purchases of property for use in the performance of such services are subject to sales tax
TSB-A-09(20)S Marschallin + Sachs, Inc. - Whether the sale of certain design services delivered on tangible media or in electronic form are subject to sales tax
TSB-A-09(19)S Jeffrey J. Coren CPA - Whether charges for providing access to an on-line computer software program pursuant to a software license agreement are subject to sales tax
TSB-A-09(18)S TheMarkets.com LLC - Whether web-based services that provide industry evaluations for investment broker dealers are information services subject to sales tax
TSB-A-09(17)S Whether membership dues and other membership fees charged by a country club are subject to sales tax
TSB-A-09(16)S Whether sales of biological soft tissue products to hospitals and medical service providers are subject to sales and use tax
TSB-A-09(15)S Electronic Mortgage Affiliates - Whether charges to subscribers for access via the Internet to an online loan origination and processing product are subject to sales tax
TSB-A-09(14)S Whether automated voice message services are subject to sales tax
TSB-A-09(13)S Whether intrauterine devices are exempt from sales tax as drugs or medicines
TSB-A-09(12)S One Source Document Management - Whether medical record retrieval services are subject to sales tax
TSB-A-09(11)S WildBlue Communications, Inc Whether customer premises equipment furnished to customers of Internet access service may be purchased by service provider for resale
TSB-A-09(10)S Whether installation of a closed circuit television system results in a capital improvement
TSB-A-09(9)S Whether rentals of scaffolding, hoisting equipment, safety netting, and temporary pedestrian walkways are subject to sales tax.
TSB-A-09(8)S Josh Rosoff - Whether charges to subscribers for an Internet-based financial transaction settlement platform are subject to sales tax
TSB-A-09(7)S Whether an above-ground steam pipeline is a capital improvement for sales tax purposes
TSB-A-09(6)S Aviation Software, Inc. - Whether licenses to use software that is customized for use by specific airlines are subject to sales tax
TSB-A-09(5)S KPMG LLP - Whether automated voice message services are subject to sales tax
TSB-A-09(4)S Arthur R. Rosen - Services relating to regulatory compliance reviews of client business practices, and to investigations of activities within a client's organization.
TSB-A-09(3)S SkillSoft Corporation - Whether online computer-based training materials provided to customers in New York are subject to sales tax
TSB-A-09(2)S Whether on-line e-learning courses are taxable as sales of prewritten software
TSB-A-09(1)S Remote sales of tangible personal property by a fraternal insurance company

Other information

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