N.Y. TAX. LAW § 1101 : NY Code - Section 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.  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.
    (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 and eighteen hundred seventeen of this chapter, the following
  terms shall have the following meanings:
    (A)   "Automotive   fuel"  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"  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 "enhancement" and "enhanced  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) The term retail sale does not include:

    (A) 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.
    (B)  The distribution of property by a corporation to its stockholders
  as a liquidating dividend.
    (C) The distribution of property by a partnership to its  partners  in
  whole or partial liquidation.
    (D) The transfer of property to a corporation upon its organization in
  consideration for the issuance of its stock.
    (E) The contribution of property to a partnership in consideration for
  a partnership interest therein.
    (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, 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.
    * NB Effective until December 1, 2009
    * (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.
    * NB Effective December 1, 2009
    (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.
    (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 three 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 three 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.
    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)  "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. 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.
    (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, 2011
    * (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, 2011

    * (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, 2011
    * (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, 2011
    * (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.
    * NB Effective December 1, 2009
    (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.  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 a taxicab and a
  bus, and excluding any  scheduled  public  service.  Limousine  means  a
  vehicle with a seating capacity of up to fourteen persons, excluding the
  driver.  Black  car  means  a for-hire vehicle dispatched from a central
  facility.
    * (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.
    * NB Effective December 1, 2009
    * (36) New modular home module. A modular home  module  sold  for  the
  first time at retail.
    * NB Effective December 1, 2009
    (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.
    (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.
    (4) Operator. Any person operating a hotel.
    (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  valued  in  money,
  whether received in money or otherwise.
    (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.
    (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.