§ 186-a. Tax on the furnishing of utility services. 1. Notwithstanding any other provision of this chapter, or of any other law, (a) a tax equal to three and one-quarter percent through December thirty-first, nineteen hundred ninety-nine, and two and one-half percent on and after January first, two thousand of its gross income is hereby imposed upon every provider of telecommunication services doing business in this state which is subject to the supervision of the state department of public service which has a gross income for the year ending December thirty-first in excess of five hundred dollars; (b) a tax equal to (1) two and five-tenths percent on and after January first, two thousand through December thirty-first, two thousand, two and forty-five one hundredths percent from January first, two thousand one through December thirty-first, two thousand one, two and four-tenths percent from January first, two thousand two through December thirty-first, two thousand two, two and twenty-five one hundredths percent from January first, two thousand three through December thirty-first, two thousand three, two and one hundred twenty-five one thousandths percent from January first, two thousand four through December thirty-first, two thousand four and two percent commencing January first, two thousand five and thereafter of that portion of its gross income derived from the transportation, transmission or distribution of gas or electricity by means of conduits, mains, pipes, wires, lines or the like and (2) two and one-tenth percent from January first, two thousand through December thirty-first, two thousand, two percent from January first, two thousand one through December thirty-first, two thousand one, one and nine-tenths percent from January first, two thousand two through December thirty-first, two thousand two, eighty-five one hundredths of one percent from January first, two thousand three through December thirty-first, two thousand three, four-tenths of one percent from January first, two thousand four through December thirty-first, two thousand four and zero percent commencing January first, two thousand five of all of its other gross income, is hereby imposed upon every utility not taxed under paragraph (a) of this subdivision doing business in this state which is subject to the supervision of the state department of public service which has a gross income for the year ending December thirty-first in excess of five hundred dollars, except motor carriers or brokers subject to such supervision under the public service law; and (c) a tax equal to three and one-quarter percent through December thirty-first, nineteen hundred ninety-nine, two and one-tenth percent from January first, two thousand through December thirty-first, two thousand, two percent from January first, two thousand one through December thirty-first, two thousand one, one and nine-tenths percent from January first, two thousand two through December thirty-first, two thousand two, eighty-five one hundredths of one percent from January first, two thousand three through December thirty-first, two thousand three, four-tenths of one percent from January first, two thousand four through December thirty-first, two thousand four and zero percent commencing January first, two thousand five of its gross operating income is hereby imposed upon every other utility doing business in this state which has a gross operating income for the year ending December thirty-first in excess of five hundred dollars, which taxes shall be in addition to any and all other taxes and fees imposed by any other provision of law for the same period. 2. As used in this section, (a) the word "utility" includes every person (including every provider of telecommunication services) subject to the supervision of the state department of public service, except persons engaged in the business of operating on the public highways ofthis state one or more omnibuses, having a seating capacity of more than seven persons, and persons engaged in the business of operating or leasing sleeping and parlor railroad cars or of operating railroads other than street surface, rapid transit, subway and elevated railroads, and also includes every person (whether or not such person is subject to such supervision) who sells gas, electricity, steam, water or refrigeration, delivered through mains, pipes or wires, or furnishes gas, electric, steam, water or refrigerator service, by means of mains, pipes, or wires; regardless of whether such activities are the main business of such person or are only incidental thereto, or of whether use is made of the public streets; (b) the word "person" means persons, corporations, companies, associations, joint-stock companies or associations, partnerships and limited liability companies, estates, assignee of rents, any person acting in a fiduciary capacity, or any other entity, and persons, their assignees, lessees, trustees or receivers, appointed by any court whatsoever, or by any other means, except the state; municipalities, political and civil subdivisions of the state or municipality and public districts (provided, however, that with respect to gas, electricity and gas or electric service, including the sale of the transportation, transmission or distribution of gas or electricity, such municipalities, political and civil subdivisions and public districts shall be excluded from the definition of "person" if they own and operate facilities which are used to generate or distribute electricity or distribute gas and they distribute and sell such gas or electricity solely at retail, solely within their respective jurisdiction; or provided, further, with respect to the sale of electricity or the transportation, transmission or distribution of electricity, a municipality shall be excluded from the definition of "person" if it sells electricity at retail where all such electricity (excluding temporary substitution power during outages or periods of reduced output) has been generated solely by and purchased solely from the state or a public authority of the state); corporations and associations which are organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and which are described in paragraph four of subdivision (a) of section eleven hundred sixteen of this chapter where such organization resells such gas or electricity or gas or electric service as landlord to its tenants in buildings owned by such organization; and excepting a corporation organized and operated exclusively for the purpose of leasing from a city in this state a water-works system designed to supply water at cost to users thereof for discharge, either before or after industrial use, into a river within such city in order to improve the flow and condition of such river and thereby to provide a means to relieve such river from pollution; (c) the words "gross income" mean and include receipts received in or by reason of any sale, conditional or otherwise, (except sales hereinafter referred to with respect to which it is provided that profits from the sale shall be included in gross income) made or service rendered for ultimate consumption or use by the purchaser in this state, including cash, credits and property of any kind or nature (whether or not such sale is made or such service is rendered for profit), without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or services or other costs, interest or discount paid, or any other expense whatsoever. (1) Provided, however, that all receipts from sales of the transportation, transmission or distribution of gas or electricity by means of conduits, mains, pipes, wires, lines or the like, rendered orperformed in this state, shall be included in gross income except receipts from (i) sales of the transportation, transmission or distribution of gas or electricity to (A) a utility (excluding a public authority) which is supervised by this state or another jurisdiction (where an element of such supervision includes rate regulation and, for a utility supervised by another jurisdiction, such supervision includes rate regulation and such gas or electricity is delivered for ultimate consumption or use outside this state), (B) a municipality which owns and operates facilities which are used to generate or distribute electricity or distribute gas and which distributes and sells such electricity or gas solely at retail, solely within its respective jurisdiction, or (C) a public authority of this state where such public authority is primarily engaged in the generation and transmission or distribution of electricity or the distribution of electricity or gas and at least ninety-five percent of the assets of which are so devoted, provided, that, if the service area or district of the authority is less than the entire state, the excluded receipt shall be limited to receipts derived from the sale of transportation, transmission or distribution of gas or electricity, which electricity or gas will be sold by such authority at retail within its service area or district; where, as the case may be, such utility or authority purchasing such transportation, transmission or distribution sells the gas or electricity being so transported, transmitted or distributed, (ii) sales of the transportation, transmission or distribution of electricity to a municipality where the electricity being transported has been purchased by such municipality and has been generated solely by and purchased solely from the state or a public authority of the state (except where the electricity being transported constitutes temporary substitution power being supplied during outages or periods of reduced output) and where such municipality purchasing such transportation, transmission or distribution, sells solely at retail, solely within its respective jurisdiction, the electricity being so transported, transmitted or distributed, (iii) sales of the transportation, transmission or distribution of gas or electricity to corporations and associations which are organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and which are described in paragraph four of subdivision (a) of section eleven hundred sixteen of this chapter where such organization resells such transportation, transmission or distribution as part of a bundled gas or electric service as landlord to its tenants in buildings owned by such organization, or (iv) sales of the transportation, transmission or distribution of gas or electricity, not otherwise excluded, to nonresidential customers, but only in accordance with the following schedule: for the sales during the calendar years two thousand and two thousand one, zero percent of the receipts from such sales shall be excluded; for the sales during the calendar year two thousand two, twenty-five percent of the receipts from such sales shall be excluded; for sales during the calendar year two thousand three, fifty percent of the receipts from such sales shall be excluded; for sales during the calendar year two thousand four, seventy-five percent of the receipts from such sales shall be excluded; and for sales thereafter, one hundred percent of such sales shall be excluded. For the purposes of this clause, the term "nonresidential customers" means those customers whose use of gas or electricity, or gas or electric service does not qualify for the reduced rate of sales and compensating use tax on gas, electricity, or gas or electric service under section eleven hundred five-A of article twenty-eight of this chapter.(2) Provided, further, receipts received from the sale of the transportation, transmission or distribution of gas or electricity shall mean the receipts received from customers representing the noncommodity charges for gas or electric service. (3) Provided, further, gross income with respect to a provider of telecommunication services shall not include receipts from the sale of telecommunication services as such services are defined in section one hundred eighty-six-e of this article. (4) Provided, further, sales of gas, electricity, steam, water or refrigeration or gas, electric, steam, water or refrigerator service to a landlord that is a person as defined in this subdivision for resale by such landlord to a tenant, for consumption by such tenant as an incident to such landlord's activity of renting premises to such tenant, shall be subject to the tax imposed under this section even though such sales are not for ultimate consumption by such landlord. Provided, further, receipts derived by a landlord from the resale for such gas, electricity, steam, water or refrigeration or furnishing gas, electric, steam, water or refrigerator service to such tenant shall be conclusively presumed to be equal to such landlord's cost of the same, and, if the tax under this section was imposed on the sale to such landlord, no additional tax under this section shall be owing on the sale by such landlord to such tenant. If, however, the tax under this section was not imposed on such sale to the landlord, then such landlord on the sale to its tenant shall file a return hereunder based on such landlord's cost (including any associated transportation cost) of such gas, electricity, steam, water or refrigeration or gas, electric, steam, water or refrigerator service. (5) "Gross income" also includes profits from the sale of securities; also profits from the sale of real property growing out of the ownership or use of or interest in such property; also profit from the sale of personal property (other than property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the period for which a return is made); also receipts from interest, dividends, and royalties, derived from sources within this state other than such as are received from a corporation a majority of whose voting stock is owned by the taxpaying utility, without any deduction therefrom for any expenses whatsoever incurred in connection with the receipt thereof, also profits from any transaction (except sales for resale and rentals) within this state whatsoever; (d) the words "gross operating income" mean and include receipts received in or by reason of any sale, conditional or otherwise, made for ultimate consumption or use by the purchaser of gas, electricity, steam, water or refrigeration, or in or by reason of the furnishing for such consumption or use of gas, electric, steam, water or refrigerator service in this state, including cash, credits and property of any kind or nature, without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or services or other costs, interest or discount paid, or any other expenses whatsoever. Provided, however, there shall be excluded from gross operating income receipts representing the amount received from the resale of the transportation, transmission or distribution of gas or electricity in this state where such transportation, transmission or distribution being resold is provided by a utility subject to tax under paragraph (b) of subdivision one of this section; the receipts representing the amount received from resale of such transportation, transmission or distribution shall be the amount received for such transportation, transmission or distribution by such utility which initially provided such transportation, transmission or distributions. Provided, further,sales of gas, electricity, steam, water or refrigeration or gas, electric, steam, water or refrigerator service to a landlord that is a person as defined in this subdivision for resale by such landlord to a tenant, for consumption by such tenant as an incident to such landlord's activity of renting premises to such tenant, shall be subject to the tax imposed under this section even though such sales are not for ultimate consumption by such landlord. Provided, further, receipts derived by a landlord from the resale of such gas, electricity, steam, water or refrigeration or furnishing gas, electric, steam, water or refrigerator service to such tenant shall be conclusively presumed to be equal to such landlord's cost of the same, and, if the tax under this section was imposed on the sale to such landlord, no additional tax under this section shall be owing on the sale by such landlord to such tenant. If the tax under this section was not imposed on such sale to the landlord, then such landlord on the sale to its tenant shall file a return hereunder based on such landlord's cost (including any associated transportation cost) of such gas, electricity, steam, water or refrigeration or gas, electric, steam, water or refrigerator service; (e) the term "telecommunication services" shall have the same meaning as such term is defined in section one hundred eighty-six-e of this article; (f) The word "premises" means and includes any real property or part thereof, and any structure thereon or space therein; and (g) the word "tenant" means and includes a person paying, or required to pay, rent for premises as a lessee, sublessee, licensee or concessionaire. 2-a. Tax adjustment for utilities with financial resource asset for taxable years commencing on and after January first, nineteen hundred ninety-two. Notwithstanding any provision of this section to the contrary, in the event that a utility which is taxable under this section is an electric corporation, as defined in subdivision thirteen of section two of the public service law, which, on or before the effective date of this subdivision, has been permitted by the public service commission to establish for ratemaking purposes a financial resource asset (which asset shall represent, in an amount approved by the public service commission on or before the effective date of this subdivision, the present value of a stream of future cash flows, rather than actual land, land rights, physical structures, improvements or other physical items, franchises or intangible plant), such an electric corporation shall be allowed an adjustment by way of the allowance of a deduction from its gross income subject to tax under subdivision one of this section equal to the amount by which (a) that portion of gross income received in any year after nineteen hundred ninety-one which represents the total return authorized by the public service commission to be recovered in rates on the financial resource asset, including amortization, exceeds (b) that portion of gross income received in the twelve-month period immediately preceding the month in which the financial resource asset is established pursuant to authorization of the public service commission and which represents (i) the total revenue derived from any financial stability adjustment and (ii) the total return on interest-bearing construction work in progress in the rate base permitted by the public service commission. No electric corporation shall be allowed the tax adjustment authorized by this subdivision until it shall file, together with the return required to be filed pursuant to subdivision four of this section, a certificate for the period covered by the return from the department of public service verifying that the calculation of such tax adjustment complies with this subdivision. The adjustment to gross income allowed by this subdivision shall not beapplicable in calculating any other tax imposed or authorized to be imposed by this chapter or any other law, and the amount of tax surcharge equal to seventeen per centum imposed pursuant to section one hundred eighty-six-c of this article, and the amount of the tax surcharge imposed under section one hundred eighty-eight of this article, shall be calculated and payable as if the adjustment provided in this subdivision were not allowed. 3. Every utility subject to tax under this section shall keep such records of its business and in such form as the tax commission may require, and such records shall be preserved for a period of three years, except that the tax commission may consent to their destruction within that period or may require that they be kept longer. 4. Every utility subject to tax hereunder shall file, on or before March fifteenth of each year, a return for the year ended on the preceding December thirty-first, except that the year ended on December thirty-first, nineteen hundred seventy-six shall be deemed, for the purposes of this subdivision, to have commenced on June first, nineteen hundred seventy-six, including any period for which the tax imposed hereby or by any amendment hereof is effective, each of which returns shall state the gross income or gross operating income for the period covered by each such return. Returns shall be filed with the commissioner of taxation and finance on a form to be furnished by the commissioner for such purpose and shall contain such other data, information or matter as the commissioner may require to be included therein. Notwithstanding the foregoing provisions of this subdivision, the commissioner may require any utility to file an annual return, which shall contain any data specified by the commissioner, regardless of whether the utility is subject to tax under this section; and the commissioner may require a landlord selling to a tenant gas, electric, steam, water or refrigeration or furnishing gas, electric, steam, water or refrigerator service, where the same has been subjected to tax under this section on the sale to such landlord, to file, on or before the fifteenth day of March of each year, an information return for the year ended on the preceding December thirty-first, covering such year in such form and containing such data as the commissioner may specify. Every return shall have annexed thereto a certification by the head of the utility making the same, or of the owner or of a co-partner thereof, or of a principal officer of the corporation, if such business be conducted by a corporation, to the effect that the statements contained therein are true. 5. If any provision of this section conflicts with any other provision contained in this article, the provision of this section shall control, but the provisions of this article which do not conflict with the provisions of this section shall apply with respect to the taxes under this section, so far as they are, or may be made applicable. 6. The tax imposed by this section shall be charged against and be paid by the utility and may be added as a separate item to bills rendered by the utility to customers. Upon request the utility shall furnish a statement of the amount of tax imposed by this section to its customers for bills rendered on or after January first, two thousand. 7. Notwithstanding any other provision contained in this or any other law, in the event the city of New York shall enact a local law imposing a tax on utilities, such as it imposed by this section, except as to the rate of tax, the tax commission, in its discretion, may arrange with the chief fiscal officer of said city for the collection by him of the tax imposed by this section with respect to items that enter into the tax base for both the tax imposed by said city and that imposed pursuant to this section, and for the remittance by him of the tax imposed by thissection to the tax commission for disposition as in this article provided. If such an arrangement be made, all the provisions of the local law of said city imposing the local tax shall apply with respect to the tax imposed by this section in the same manner as if the local tax rate had included the tax imposed by this section. 8. Notwithstanding any other provision of this chapter or any other law to the contrary, any utility (a) which is subject to tax hereunder, and (b) which is subject to the supervision of the department of public service, shall provide, in addition to any other discount, a reduction of three percent in the rate charged for gas, electricity, steam or water sold, or gas, electric, steam or water service rendered, prior to nineteen hundred ninety-four, for ultimate consumption or use within an area designated as an empire zone pursuant to article eighteen-B of the general municipal law by a business, whether incorporated or unincorporated, other than a retail enterprise as defined in paragraph (k) of subdivision twelve of section two hundred ten of this chapter but without regard to subparagraph (iii) thereof, which has been certified pursuant to article eighteen-B of the general municipal law, and which has claimed a credit under subdivision nineteen of section two hundred ten, subsection (k) of section six hundred six, subsection (e) of section fourteen hundred fifty-six or subdivision (g) of section fifteen hundred eleven of this chapter during the previous fifteen months, as evidenced by a certificate issued by the commissioner to such business. Ninety-six and one-half percent of the aggregate of such reductions during the year may be applied as a credit against the tax imposed pursuant to this section with respect to such year. * 9. Notwithstanding any other provision of this chapter or any other law to the contrary, for taxable periods nineteen hundred ninety-seven through and including two thousand ten, any utility which delivers power under the power for jobs program, as established by section one hundred eighty-nine of the economic development law, shall be allowed a credit, subject to the limitations thereon contained in this subdivision, against the tax imposed under this section equal to net lost revenues from the delivery of power under such power for jobs program. Net lost revenues means the "net receipts" less "net utility revenue" from such delivery of power. For purposes of this subdivision, "net receipts" shall mean the amount that the utility would have otherwise received from customers receiving power pursuant to allocations by the New York state economic development power allocation board in accordance with section one hundred eighty-nine of the economic development law, or from customers whose allocation has been transferred to an energy service company, or from energy service companies to which such allocation has been transferred, pursuant to its tariff supervised by the public service commission for substantially comparable service otherwise applicable to such customers or energy service companies in the absence of such designation, less the utility's annual average incremental short-term variable and capacity costs of providing such power in the absence of such purchase. For the purposes of this subdivision, "net utility revenue" shall mean the revenues the utility actually receives in accordance with such section one hundred eighty-nine from such customers so designated by the New York state economic development power allocation board or from customers whose allocation has been transferred to an energy service company, or from the energy service companies to which a power for jobs allocation has been transferred, less the utility's cost of such power under such program. Provided, however, that any credit under this section shall be used only with respect to the same taxable year during which such credit arose and shall not be capable of being carried forward or backward to any other taxableperiod. Nor shall any credit be allowed to any utility for the total amount of power, expressed in kilowatt hours, purchased by the customers of such utility under such program during the taxable period that exceeds the prorated "baseline energy use" by all customers of that utility purchasing power under such program during the taxable period. "Baseline energy use" with respect to each customer shall mean the largest amount of kilowatt hours of energy used by such customer during any twelve consecutive month period occurring during the preceding thirty months immediately preceding the New York state economic development power allocation board's recommendation of such customer's application, prorated to reflect the length of time of the customer's participation in such program during the taxable period. Provided further, however, that in accordance with subdivision (k) of section one hundred eighty-nine of the economic development law no tax credit shall be available for any revenue losses when a utility has declined to purchase power allocated for sale under such program. No electric corporation shall be allowed the tax credit authorized by this subdivision until it shall file a certificate from the department of public service for the period covered by the return verifying that the calculation of such tax credit complies with this subdivision and the department of public service has approved such certificate and forwarded a copy of such approved certificate to the commissioner or any amended certificate resulting from the need for correction. The credit allowed by this subdivision shall not be applicable in calculating any other tax imposed or authorized to be imposed by this chapter or any other law, and the amount of the tax surcharge imposed under section one hundred eighty-six-c of this article shall be calculated and payable as if the credit provided for by this subdivision were not allowed. * NB Repealed May 15, 2011 * 9. Notwithstanding any other provision contained in this chapter or any other law, any surcharge collected or any administrative fee retained by any telephone corporation acting as collection agent for a municipality pursuant to the provisions of article six of the county law shall not be considered as nor included in the determination of gross income or gross operating income of or by such corporation. * NB Effective May 15, 2011 * 10. Notwithstanding any other provision contained in this chapter or any other law, any surcharge collected or any administrative fee retained by any telephone corporation acting as collection agent for a municipality pursuant to the provisions of article six of the county law shall not be considered as nor included in the determination of gross income or gross operating income of or by such corporation. * NB Effective until May 15, 2011
§ 186-a. Tax on the furnishing of utility services. 1. Notwithstanding any other provision of this chapter, or of any other law, (a) a tax equal to three and one-quarter percent through December thirty-first, nineteen hundred ninety-nine, and two and one-half percent on and after January first, two thousand of its gross income is hereby imposed upon every provider of telecommunication services doing business in this state which is subject to the supervision of the state department of public service which has a gross income for the year ending December thirty-first in excess of five hundred dollars; (b) a tax equal to (1) two and five-tenths percent on and after January first, two thousand through December thirty-first, two thousand, two and forty-five one hundredths percent from January first, two thousand one through December thirty-first, two thousand one, two and four-tenths percent from January first, two thousand two through December thirty-first, two thousand two, two and twenty-five one hundredths percent from January first, two thousand three through December thirty-first, two thousand three, two and one hundred twenty-five one thousandths percent from January first, two thousand four through December thirty-first, two thousand four and two percent commencing January first, two thousand five and thereafter of that portion of its gross income derived from the transportation, transmission or distribution of gas or electricity by means of conduits, mains, pipes, wires, lines or the like and (2) two and one-tenth percent from January first, two thousand through December thirty-first, two thousand, two percent from January first, two thousand one through December thirty-first, two thousand one, one and nine-tenths percent from January first, two thousand two through December thirty-first, two thousand two, eighty-five one hundredths of one percent from January first, two thousand three through December thirty-first, two thousand three, four-tenths of one percent from January first, two thousand four through December thirty-first, two thousand four and zero percent commencing January first, two thousand five of all of its other gross income, is hereby imposed upon every utility not taxed under paragraph (a) of this subdivision doing business in this state which is subject to the supervision of the state department of public service which has a gross income for the year ending December thirty-first in excess of five hundred dollars, except motor carriers or brokers subject to such supervision under the public service law; and (c) a tax equal to three and one-quarter percent through December thirty-first, nineteen hundred ninety-nine, two and one-tenth percent from January first, two thousand through December thirty-first, two thousand, two percent from January first, two thousand one through December thirty-first, two thousand one, one and nine-tenths percent from January first, two thousand two through December thirty-first, two thousand two, eighty-five one hundredths of one percent from January first, two thousand three through December thirty-first, two thousand three, four-tenths of one percent from January first, two thousand four through December thirty-first, two thousand four and zero percent commencing January first, two thousand five of its gross operating income is hereby imposed upon every other utility doing business in this state which has a gross operating income for the year ending December thirty-first in excess of five hundred dollars, which taxes shall be in addition to any and all other taxes and fees imposed by any other provision of law for the same period. 2. As used in this section, (a) the word "utility" includes every person (including every provider of telecommunication services) subject to the supervision of the state department of public service, except persons engaged in the business of operating on the public highways ofthis state one or more omnibuses, having a seating capacity of more than seven persons, and persons engaged in the business of operating or leasing sleeping and parlor railroad cars or of operating railroads other than street surface, rapid transit, subway and elevated railroads, and also includes every person (whether or not such person is subject to such supervision) who sells gas, electricity, steam, water or refrigeration, delivered through mains, pipes or wires, or furnishes gas, electric, steam, water or refrigerator service, by means of mains, pipes, or wires; regardless of whether such activities are the main business of such person or are only incidental thereto, or of whether use is made of the public streets; (b) the word "person" means persons, corporations, companies, associations, joint-stock companies or associations, partnerships and limited liability companies, estates, assignee of rents, any person acting in a fiduciary capacity, or any other entity, and persons, their assignees, lessees, trustees or receivers, appointed by any court whatsoever, or by any other means, except the state; municipalities, political and civil subdivisions of the state or municipality and public districts (provided, however, that with respect to gas, electricity and gas or electric service, including the sale of the transportation, transmission or distribution of gas or electricity, such municipalities, political and civil subdivisions and public districts shall be excluded from the definition of "person" if they own and operate facilities which are used to generate or distribute electricity or distribute gas and they distribute and sell such gas or electricity solely at retail, solely within their respective jurisdiction; or provided, further, with respect to the sale of electricity or the transportation, transmission or distribution of electricity, a municipality shall be excluded from the definition of "person" if it sells electricity at retail where all such electricity (excluding temporary substitution power during outages or periods of reduced output) has been generated solely by and purchased solely from the state or a public authority of the state); corporations and associations which are organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and which are described in paragraph four of subdivision (a) of section eleven hundred sixteen of this chapter where such organization resells such gas or electricity or gas or electric service as landlord to its tenants in buildings owned by such organization; and excepting a corporation organized and operated exclusively for the purpose of leasing from a city in this state a water-works system designed to supply water at cost to users thereof for discharge, either before or after industrial use, into a river within such city in order to improve the flow and condition of such river and thereby to provide a means to relieve such river from pollution; (c) the words "gross income" mean and include receipts received in or by reason of any sale, conditional or otherwise, (except sales hereinafter referred to with respect to which it is provided that profits from the sale shall be included in gross income) made or service rendered for ultimate consumption or use by the purchaser in this state, including cash, credits and property of any kind or nature (whether or not such sale is made or such service is rendered for profit), without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or services or other costs, interest or discount paid, or any other expense whatsoever. (1) Provided, however, that all receipts from sales of the transportation, transmission or distribution of gas or electricity by means of conduits, mains, pipes, wires, lines or the like, rendered orperformed in this state, shall be included in gross income except receipts from (i) sales of the transportation, transmission or distribution of gas or electricity to (A) a utility (excluding a public authority) which is supervised by this state or another jurisdiction (where an element of such supervision includes rate regulation and, for a utility supervised by another jurisdiction, such supervision includes rate regulation and such gas or electricity is delivered for ultimate consumption or use outside this state), (B) a municipality which owns and operates facilities which are used to generate or distribute electricity or distribute gas and which distributes and sells such electricity or gas solely at retail, solely within its respective jurisdiction, or (C) a public authority of this state where such public authority is primarily engaged in the generation and transmission or distribution of electricity or the distribution of electricity or gas and at least ninety-five percent of the assets of which are so devoted, provided, that, if the service area or district of the authority is less than the entire state, the excluded receipt shall be limited to receipts derived from the sale of transportation, transmission or distribution of gas or electricity, which electricity or gas will be sold by such authority at retail within its service area or district; where, as the case may be, such utility or authority purchasing such transportation, transmission or distribution sells the gas or electricity being so transported, transmitted or distributed, (ii) sales of the transportation, transmission or distribution of electricity to a municipality where the electricity being transported has been purchased by such municipality and has been generated solely by and purchased solely from the state or a public authority of the state (except where the electricity being transported constitutes temporary substitution power being supplied during outages or periods of reduced output) and where such municipality purchasing such transportation, transmission or distribution, sells solely at retail, solely within its respective jurisdiction, the electricity being so transported, transmitted or distributed, (iii) sales of the transportation, transmission or distribution of gas or electricity to corporations and associations which are organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and which are described in paragraph four of subdivision (a) of section eleven hundred sixteen of this chapter where such organization resells such transportation, transmission or distribution as part of a bundled gas or electric service as landlord to its tenants in buildings owned by such organization, or (iv) sales of the transportation, transmission or distribution of gas or electricity, not otherwise excluded, to nonresidential customers, but only in accordance with the following schedule: for the sales during the calendar years two thousand and two thousand one, zero percent of the receipts from such sales shall be excluded; for the sales during the calendar year two thousand two, twenty-five percent of the receipts from such sales shall be excluded; for sales during the calendar year two thousand three, fifty percent of the receipts from such sales shall be excluded; for sales during the calendar year two thousand four, seventy-five percent of the receipts from such sales shall be excluded; and for sales thereafter, one hundred percent of such sales shall be excluded. For the purposes of this clause, the term "nonresidential customers" means those customers whose use of gas or electricity, or gas or electric service does not qualify for the reduced rate of sales and compensating use tax on gas, electricity, or gas or electric service under section eleven hundred five-A of article twenty-eight of this chapter.(2) Provided, further, receipts received from the sale of the transportation, transmission or distribution of gas or electricity shall mean the receipts received from customers representing the noncommodity charges for gas or electric service. (3) Provided, further, gross income with respect to a provider of telecommunication services shall not include receipts from the sale of telecommunication services as such services are defined in section one hundred eighty-six-e of this article. (4) Provided, further, sales of gas, electricity, steam, water or refrigeration or gas, electric, steam, water or refrigerator service to a landlord that is a person as defined in this subdivision for resale by such landlord to a tenant, for consumption by such tenant as an incident to such landlord's activity of renting premises to such tenant, shall be subject to the tax imposed under this section even though such sales are not for ultimate consumption by such landlord. Provided, further, receipts derived by a landlord from the resale for such gas, electricity, steam, water or refrigeration or furnishing gas, electric, steam, water or refrigerator service to such tenant shall be conclusively presumed to be equal to such landlord's cost of the same, and, if the tax under this section was imposed on the sale to such landlord, no additional tax under this section shall be owing on the sale by such landlord to such tenant. If, however, the tax under this section was not imposed on such sale to the landlord, then such landlord on the sale to its tenant shall file a return hereunder based on such landlord's cost (including any associated transportation cost) of such gas, electricity, steam, water or refrigeration or gas, electric, steam, water or refrigerator service. (5) "Gross income" also includes profits from the sale of securities; also profits from the sale of real property growing out of the ownership or use of or interest in such property; also profit from the sale of personal property (other than property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the period for which a return is made); also receipts from interest, dividends, and royalties, derived from sources within this state other than such as are received from a corporation a majority of whose voting stock is owned by the taxpaying utility, without any deduction therefrom for any expenses whatsoever incurred in connection with the receipt thereof, also profits from any transaction (except sales for resale and rentals) within this state whatsoever; (d) the words "gross operating income" mean and include receipts received in or by reason of any sale, conditional or otherwise, made for ultimate consumption or use by the purchaser of gas, electricity, steam, water or refrigeration, or in or by reason of the furnishing for such consumption or use of gas, electric, steam, water or refrigerator service in this state, including cash, credits and property of any kind or nature, without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or services or other costs, interest or discount paid, or any other expenses whatsoever. Provided, however, there shall be excluded from gross operating income receipts representing the amount received from the resale of the transportation, transmission or distribution of gas or electricity in this state where such transportation, transmission or distribution being resold is provided by a utility subject to tax under paragraph (b) of subdivision one of this section; the receipts representing the amount received from resale of such transportation, transmission or distribution shall be the amount received for such transportation, transmission or distribution by such utility which initially provided such transportation, transmission or distributions. Provided, further,sales of gas, electricity, steam, water or refrigeration or gas, electric, steam, water or refrigerator service to a landlord that is a person as defined in this subdivision for resale by such landlord to a tenant, for consumption by such tenant as an incident to such landlord's activity of renting premises to such tenant, shall be subject to the tax imposed under this section even though such sales are not for ultimate consumption by such landlord. Provided, further, receipts derived by a landlord from the resale of such gas, electricity, steam, water or refrigeration or furnishing gas, electric, steam, water or refrigerator service to such tenant shall be conclusively presumed to be equal to such landlord's cost of the same, and, if the tax under this section was imposed on the sale to such landlord, no additional tax under this section shall be owing on the sale by such landlord to such tenant. If the tax under this section was not imposed on such sale to the landlord, then such landlord on the sale to its tenant shall file a return hereunder based on such landlord's cost (including any associated transportation cost) of such gas, electricity, steam, water or refrigeration or gas, electric, steam, water or refrigerator service; (e) the term "telecommunication services" shall have the same meaning as such term is defined in section one hundred eighty-six-e of this article; (f) The word "premises" means and includes any real property or part thereof, and any structure thereon or space therein; and (g) the word "tenant" means and includes a person paying, or required to pay, rent for premises as a lessee, sublessee, licensee or concessionaire. 2-a. Tax adjustment for utilities with financial resource asset for taxable years commencing on and after January first, nineteen hundred ninety-two. Notwithstanding any provision of this section to the contrary, in the event that a utility which is taxable under this section is an electric corporation, as defined in subdivision thirteen of section two of the public service law, which, on or before the effective date of this subdivision, has been permitted by the public service commission to establish for ratemaking purposes a financial resource asset (which asset shall represent, in an amount approved by the public service commission on or before the effective date of this subdivision, the present value of a stream of future cash flows, rather than actual land, land rights, physical structures, improvements or other physical items, franchises or intangible plant), such an electric corporation shall be allowed an adjustment by way of the allowance of a deduction from its gross income subject to tax under subdivision one of this section equal to the amount by which (a) that portion of gross income received in any year after nineteen hundred ninety-one which represents the total return authorized by the public service commission to be recovered in rates on the financial resource asset, including amortization, exceeds (b) that portion of gross income received in the twelve-month period immediately preceding the month in which the financial resource asset is established pursuant to authorization of the public service commission and which represents (i) the total revenue derived from any financial stability adjustment and (ii) the total return on interest-bearing construction work in progress in the rate base permitted by the public service commission. No electric corporation shall be allowed the tax adjustment authorized by this subdivision until it shall file, together with the return required to be filed pursuant to subdivision four of this section, a certificate for the period covered by the return from the department of public service verifying that the calculation of such tax adjustment complies with this subdivision. The adjustment to gross income allowed by this subdivision shall not beapplicable in calculating any other tax imposed or authorized to be imposed by this chapter or any other law, and the amount of tax surcharge equal to seventeen per centum imposed pursuant to section one hundred eighty-six-c of this article, and the amount of the tax surcharge imposed under section one hundred eighty-eight of this article, shall be calculated and payable as if the adjustment provided in this subdivision were not allowed. 3. Every utility subject to tax under this section shall keep such records of its business and in such form as the tax commission may require, and such records shall be preserved for a period of three years, except that the tax commission may consent to their destruction within that period or may require that they be kept longer. 4. Every utility subject to tax hereunder shall file, on or before March fifteenth of each year, a return for the year ended on the preceding December thirty-first, except that the year ended on December thirty-first, nineteen hundred seventy-six shall be deemed, for the purposes of this subdivision, to have commenced on June first, nineteen hundred seventy-six, including any period for which the tax imposed hereby or by any amendment hereof is effective, each of which returns shall state the gross income or gross operating income for the period covered by each such return. Returns shall be filed with the commissioner of taxation and finance on a form to be furnished by the commissioner for such purpose and shall contain such other data, information or matter as the commissioner may require to be included therein. Notwithstanding the foregoing provisions of this subdivision, the commissioner may require any utility to file an annual return, which shall contain any data specified by the commissioner, regardless of whether the utility is subject to tax under this section; and the commissioner may require a landlord selling to a tenant gas, electric, steam, water or refrigeration or furnishing gas, electric, steam, water or refrigerator service, where the same has been subjected to tax under this section on the sale to such landlord, to file, on or before the fifteenth day of March of each year, an information return for the year ended on the preceding December thirty-first, covering such year in such form and containing such data as the commissioner may specify. Every return shall have annexed thereto a certification by the head of the utility making the same, or of the owner or of a co-partner thereof, or of a principal officer of the corporation, if such business be conducted by a corporation, to the effect that the statements contained therein are true. 5. If any provision of this section conflicts with any other provision contained in this article, the provision of this section shall control, but the provisions of this article which do not conflict with the provisions of this section shall apply with respect to the taxes under this section, so far as they are, or may be made applicable. 6. The tax imposed by this section shall be charged against and be paid by the utility and may be added as a separate item to bills rendered by the utility to customers. Upon request the utility shall furnish a statement of the amount of tax imposed by this section to its customers for bills rendered on or after January first, two thousand. 7. Notwithstanding any other provision contained in this or any other law, in the event the city of New York shall enact a local law imposing a tax on utilities, such as it imposed by this section, except as to the rate of tax, the tax commission, in its discretion, may arrange with the chief fiscal officer of said city for the collection by him of the tax imposed by this section with respect to items that enter into the tax base for both the tax imposed by said city and that imposed pursuant to this section, and for the remittance by him of the tax imposed by thissection to the tax commission for disposition as in this article provided. If such an arrangement be made, all the provisions of the local law of said city imposing the local tax shall apply with respect to the tax imposed by this section in the same manner as if the local tax rate had included the tax imposed by this section. 8. Notwithstanding any other provision of this chapter or any other law to the contrary, any utility (a) which is subject to tax hereunder, and (b) which is subject to the supervision of the department of public service, shall provide, in addition to any other discount, a reduction of three percent in the rate charged for gas, electricity, steam or water sold, or gas, electric, steam or water service rendered, prior to nineteen hundred ninety-four, for ultimate consumption or use within an area designated as an empire zone pursuant to article eighteen-B of the general municipal law by a business, whether incorporated or unincorporated, other than a retail enterprise as defined in paragraph (k) of subdivision twelve of section two hundred ten of this chapter but without regard to subparagraph (iii) thereof, which has been certified pursuant to article eighteen-B of the general municipal law, and which has claimed a credit under subdivision nineteen of section two hundred ten, subsection (k) of section six hundred six, subsection (e) of section fourteen hundred fifty-six or subdivision (g) of section fifteen hundred eleven of this chapter during the previous fifteen months, as evidenced by a certificate issued by the commissioner to such business. Ninety-six and one-half percent of the aggregate of such reductions during the year may be applied as a credit against the tax imposed pursuant to this section with respect to such year. * 9. Notwithstanding any other provision of this chapter or any other law to the contrary, for taxable periods nineteen hundred ninety-seven through and including two thousand ten, any utility which delivers power under the power for jobs program, as established by section one hundred eighty-nine of the economic development law, shall be allowed a credit, subject to the limitations thereon contained in this subdivision, against the tax imposed under this section equal to net lost revenues from the delivery of power under such power for jobs program. Net lost revenues means the "net receipts" less "net utility revenue" from such delivery of power. For purposes of this subdivision, "net receipts" shall mean the amount that the utility would have otherwise received from customers receiving power pursuant to allocations by the New York state economic development power allocation board in accordance with section one hundred eighty-nine of the economic development law, or from customers whose allocation has been transferred to an energy service company, or from energy service companies to which such allocation has been transferred, pursuant to its tariff supervised by the public service commission for substantially comparable service otherwise applicable to such customers or energy service companies in the absence of such designation, less the utility's annual average incremental short-term variable and capacity costs of providing such power in the absence of such purchase. For the purposes of this subdivision, "net utility revenue" shall mean the revenues the utility actually receives in accordance with such section one hundred eighty-nine from such customers so designated by the New York state economic development power allocation board or from customers whose allocation has been transferred to an energy service company, or from the energy service companies to which a power for jobs allocation has been transferred, less the utility's cost of such power under such program. Provided, however, that any credit under this section shall be used only with respect to the same taxable year during which such credit arose and shall not be capable of being carried forward or backward to any other taxableperiod. Nor shall any credit be allowed to any utility for the total amount of power, expressed in kilowatt hours, purchased by the customers of such utility under such program during the taxable period that exceeds the prorated "baseline energy use" by all customers of that utility purchasing power under such program during the taxable period. "Baseline energy use" with respect to each customer shall mean the largest amount of kilowatt hours of energy used by such customer during any twelve consecutive month period occurring during the preceding thirty months immediately preceding the New York state economic development power allocation board's recommendation of such customer's application, prorated to reflect the length of time of the customer's participation in such program during the taxable period. Provided further, however, that in accordance with subdivision (k) of section one hundred eighty-nine of the economic development law no tax credit shall be available for any revenue losses when a utility has declined to purchase power allocated for sale under such program. No electric corporation shall be allowed the tax credit authorized by this subdivision until it shall file a certificate from the department of public service for the period covered by the return verifying that the calculation of such tax credit complies with this subdivision and the department of public service has approved such certificate and forwarded a copy of such approved certificate to the commissioner or any amended certificate resulting from the need for correction. The credit allowed by this subdivision shall not be applicable in calculating any other tax imposed or authorized to be imposed by this chapter or any other law, and the amount of the tax surcharge imposed under section one hundred eighty-six-c of this article shall be calculated and payable as if the credit provided for by this subdivision were not allowed. * NB Repealed May 15, 2011 * 9. Notwithstanding any other provision contained in this chapter or any other law, any surcharge collected or any administrative fee retained by any telephone corporation acting as collection agent for a municipality pursuant to the provisions of article six of the county law shall not be considered as nor included in the determination of gross income or gross operating income of or by such corporation. * NB Effective May 15, 2011 * 10. Notwithstanding any other provision contained in this chapter or any other law, any surcharge collected or any administrative fee retained by any telephone corporation acting as collection agent for a municipality pursuant to the provisions of article six of the county law shall not be considered as nor included in the determination of gross income or gross operating income of or by such corporation. * NB Effective until May 15, 2011
§ 186-a. Tax on the furnishing of utility services. 1. Notwithstanding any other provision of this chapter, or of any other law, (a) a tax equal to three and one-quarter percent through December thirty-first, nineteen hundred ninety-nine, and two and one-half percent on and after January first, two thousand of its gross income is hereby imposed upon every provider of telecommunication services doing business in this state which is subject to the supervision of the state department of public service which has a gross income for the year ending December thirty-first in excess of five hundred dollars; (b) a tax equal to (1) two and five-tenths percent on and after January first, two thousand through December thirty-first, two thousand, two and forty-five one hundredths percent from January first, two thousand one through December thirty-first, two thousand one, two and four-tenths percent from January first, two thousand two through December thirty-first, two thousand two, two and twenty-five one hundredths percent from January first, two thousand three through December thirty-first, two thousand three, two and one hundred twenty-five one thousandths percent from January first, two thousand four through December thirty-first, two thousand four and two percent commencing January first, two thousand five and thereafter of that portion of its gross income derived from the transportation, transmission or distribution of gas or electricity by means of conduits, mains, pipes, wires, lines or the like and (2) two and one-tenth percent from January first, two thousand through December thirty-first, two thousand, two percent from January first, two thousand one through December thirty-first, two thousand one, one and nine-tenths percent from January first, two thousand two through December thirty-first, two thousand two, eighty-five one hundredths of one percent from January first, two thousand three through December thirty-first, two thousand three, four-tenths of one percent from January first, two thousand four through December thirty-first, two thousand four and zero percent commencing January first, two thousand five of all of its other gross income, is hereby imposed upon every utility not taxed under paragraph (a) of this subdivision doing business in this state which is subject to the supervision of the state department of public service which has a gross income for the year ending December thirty-first in excess of five hundred dollars, except motor carriers or brokers subject to such supervision under the public service law; and (c) a tax equal to three and one-quarter percent through December thirty-first, nineteen hundred ninety-nine, two and one-tenth percent from January first, two thousand through December thirty-first, two thousand, two percent from January first, two thousand one through December thirty-first, two thousand one, one and nine-tenths percent from January first, two thousand two through December thirty-first, two thousand two, eighty-five one hundredths of one percent from January first, two thousand three through December thirty-first, two thousand three, four-tenths of one percent from January first, two thousand four through December thirty-first, two thousand four and zero percent commencing January first, two thousand five of its gross operating income is hereby imposed upon every other utility doing business in this state which has a gross operating income for the year ending December thirty-first in excess of five hundred dollars, which taxes shall be in addition to any and all other taxes and fees imposed by any other provision of law for the same period. 2. As used in this section, (a) the word "utility" includes every person (including every provider of telecommunication services) subject to the supervision of the state department of public service, except persons engaged in the business of operating on the public highways ofthis state one or more omnibuses, having a seating capacity of more than seven persons, and persons engaged in the business of operating or leasing sleeping and parlor railroad cars or of operating railroads other than street surface, rapid transit, subway and elevated railroads, and also includes every person (whether or not such person is subject to such supervision) who sells gas, electricity, steam, water or refrigeration, delivered through mains, pipes or wires, or furnishes gas, electric, steam, water or refrigerator service, by means of mains, pipes, or wires; regardless of whether such activities are the main business of such person or are only incidental thereto, or of whether use is made of the public streets; (b) the word "person" means persons, corporations, companies, associations, joint-stock companies or associations, partnerships and limited liability companies, estates, assignee of rents, any person acting in a fiduciary capacity, or any other entity, and persons, their assignees, lessees, trustees or receivers, appointed by any court whatsoever, or by any other means, except the state; municipalities, political and civil subdivisions of the state or municipality and public districts (provided, however, that with respect to gas, electricity and gas or electric service, including the sale of the transportation, transmission or distribution of gas or electricity, such municipalities, political and civil subdivisions and public districts shall be excluded from the definition of "person" if they own and operate facilities which are used to generate or distribute electricity or distribute gas and they distribute and sell such gas or electricity solely at retail, solely within their respective jurisdiction; or provided, further, with respect to the sale of electricity or the transportation, transmission or distribution of electricity, a municipality shall be excluded from the definition of "person" if it sells electricity at retail where all such electricity (excluding temporary substitution power during outages or periods of reduced output) has been generated solely by and purchased solely from the state or a public authority of the state); corporations and associations which are organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and which are described in paragraph four of subdivision (a) of section eleven hundred sixteen of this chapter where such organization resells such gas or electricity or gas or electric service as landlord to its tenants in buildings owned by such organization; and excepting a corporation organized and operated exclusively for the purpose of leasing from a city in this state a water-works system designed to supply water at cost to users thereof for discharge, either before or after industrial use, into a river within such city in order to improve the flow and condition of such river and thereby to provide a means to relieve such river from pollution; (c) the words "gross income" mean and include receipts received in or by reason of any sale, conditional or otherwise, (except sales hereinafter referred to with respect to which it is provided that profits from the sale shall be included in gross income) made or service rendered for ultimate consumption or use by the purchaser in this state, including cash, credits and property of any kind or nature (whether or not such sale is made or such service is rendered for profit), without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or services or other costs, interest or discount paid, or any other expense whatsoever. (1) Provided, however, that all receipts from sales of the transportation, transmission or distribution of gas or electricity by means of conduits, mains, pipes, wires, lines or the like, rendered orperformed in this state, shall be included in gross income except receipts from (i) sales of the transportation, transmission or distribution of gas or electricity to (A) a utility (excluding a public authority) which is supervised by this state or another jurisdiction (where an element of such supervision includes rate regulation and, for a utility supervised by another jurisdiction, such supervision includes rate regulation and such gas or electricity is delivered for ultimate consumption or use outside this state), (B) a municipality which owns and operates facilities which are used to generate or distribute electricity or distribute gas and which distributes and sells such electricity or gas solely at retail, solely within its respective jurisdiction, or (C) a public authority of this state where such public authority is primarily engaged in the generation and transmission or distribution of electricity or the distribution of electricity or gas and at least ninety-five percent of the assets of which are so devoted, provided, that, if the service area or district of the authority is less than the entire state, the excluded receipt shall be limited to receipts derived from the sale of transportation, transmission or distribution of gas or electricity, which electricity or gas will be sold by such authority at retail within its service area or district; where, as the case may be, such utility or authority purchasing such transportation, transmission or distribution sells the gas or electricity being so transported, transmitted or distributed, (ii) sales of the transportation, transmission or distribution of electricity to a municipality where the electricity being transported has been purchased by such municipality and has been generated solely by and purchased solely from the state or a public authority of the state (except where the electricity being transported constitutes temporary substitution power being supplied during outages or periods of reduced output) and where such municipality purchasing such transportation, transmission or distribution, sells solely at retail, solely within its respective jurisdiction, the electricity being so transported, transmitted or distributed, (iii) sales of the transportation, transmission or distribution of gas or electricity to corporations and associations which are organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and which are described in paragraph four of subdivision (a) of section eleven hundred sixteen of this chapter where such organization resells such transportation, transmission or distribution as part of a bundled gas or electric service as landlord to its tenants in buildings owned by such organization, or (iv) sales of the transportation, transmission or distribution of gas or electricity, not otherwise excluded, to nonresidential customers, but only in accordance with the following schedule: for the sales during the calendar years two thousand and two thousand one, zero percent of the receipts from such sales shall be excluded; for the sales during the calendar year two thousand two, twenty-five percent of the receipts from such sales shall be excluded; for sales during the calendar year two thousand three, fifty percent of the receipts from such sales shall be excluded; for sales during the calendar year two thousand four, seventy-five percent of the receipts from such sales shall be excluded; and for sales thereafter, one hundred percent of such sales shall be excluded. For the purposes of this clause, the term "nonresidential customers" means those customers whose use of gas or electricity, or gas or electric service does not qualify for the reduced rate of sales and compensating use tax on gas, electricity, or gas or electric service under section eleven hundred five-A of article twenty-eight of this chapter.(2) Provided, further, receipts received from the sale of the transportation, transmission or distribution of gas or electricity shall mean the receipts received from customers representing the noncommodity charges for gas or electric service. (3) Provided, further, gross income with respect to a provider of telecommunication services shall not include receipts from the sale of telecommunication services as such services are defined in section one hundred eighty-six-e of this article. (4) Provided, further, sales of gas, electricity, steam, water or refrigeration or gas, electric, steam, water or refrigerator service to a landlord that is a person as defined in this subdivision for resale by such landlord to a tenant, for consumption by such tenant as an incident to such landlord's activity of renting premises to such tenant, shall be subject to the tax imposed under this section even though such sales are not for ultimate consumption by such landlord. Provided, further, receipts derived by a landlord from the resale for such gas, electricity, steam, water or refrigeration or furnishing gas, electric, steam, water or refrigerator service to such tenant shall be conclusively presumed to be equal to such landlord's cost of the same, and, if the tax under this section was imposed on the sale to such landlord, no additional tax under this section shall be owing on the sale by such landlord to such tenant. If, however, the tax under this section was not imposed on such sale to the landlord, then such landlord on the sale to its tenant shall file a return hereunder based on such landlord's cost (including any associated transportation cost) of such gas, electricity, steam, water or refrigeration or gas, electric, steam, water or refrigerator service. (5) "Gross income" also includes profits from the sale of securities; also profits from the sale of real property growing out of the ownership or use of or interest in such property; also profit from the sale of personal property (other than property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the period for which a return is made); also receipts from interest, dividends, and royalties, derived from sources within this state other than such as are received from a corporation a majority of whose voting stock is owned by the taxpaying utility, without any deduction therefrom for any expenses whatsoever incurred in connection with the receipt thereof, also profits from any transaction (except sales for resale and rentals) within this state whatsoever; (d) the words "gross operating income" mean and include receipts received in or by reason of any sale, conditional or otherwise, made for ultimate consumption or use by the purchaser of gas, electricity, steam, water or refrigeration, or in or by reason of the furnishing for such consumption or use of gas, electric, steam, water or refrigerator service in this state, including cash, credits and property of any kind or nature, without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or services or other costs, interest or discount paid, or any other expenses whatsoever. Provided, however, there shall be excluded from gross operating income receipts representing the amount received from the resale of the transportation, transmission or distribution of gas or electricity in this state where such transportation, transmission or distribution being resold is provided by a utility subject to tax under paragraph (b) of subdivision one of this section; the receipts representing the amount received from resale of such transportation, transmission or distribution shall be the amount received for such transportation, transmission or distribution by such utility which initially provided such transportation, transmission or distributions. Provided, further,sales of gas, electricity, steam, water or refrigeration or gas, electric, steam, water or refrigerator service to a landlord that is a person as defined in this subdivision for resale by such landlord to a tenant, for consumption by such tenant as an incident to such landlord's activity of renting premises to such tenant, shall be subject to the tax imposed under this section even though such sales are not for ultimate consumption by such landlord. Provided, further, receipts derived by a landlord from the resale of such gas, electricity, steam, water or refrigeration or furnishing gas, electric, steam, water or refrigerator service to such tenant shall be conclusively presumed to be equal to such landlord's cost of the same, and, if the tax under this section was imposed on the sale to such landlord, no additional tax under this section shall be owing on the sale by such landlord to such tenant. If the tax under this section was not imposed on such sale to the landlord, then such landlord on the sale to its tenant shall file a return hereunder based on such landlord's cost (including any associated transportation cost) of such gas, electricity, steam, water or refrigeration or gas, electric, steam, water or refrigerator service; (e) the term "telecommunication services" shall have the same meaning as such term is defined in section one hundred eighty-six-e of this article; (f) The word "premises" means and includes any real property or part thereof, and any structure thereon or space therein; and (g) the word "tenant" means and includes a person paying, or required to pay, rent for premises as a lessee, sublessee, licensee or concessionaire. 2-a. Tax adjustment for utilities with financial resource asset for taxable years commencing on and after January first, nineteen hundred ninety-two. Notwithstanding any provision of this section to the contrary, in the event that a utility which is taxable under this section is an electric corporation, as defined in subdivision thirteen of section two of the public service law, which, on or before the effective date of this subdivision, has been permitted by the public service commission to establish for ratemaking purposes a financial resource asset (which asset shall represent, in an amount approved by the public service commission on or before the effective date of this subdivision, the present value of a stream of future cash flows, rather than actual land, land rights, physical structures, improvements or other physical items, franchises or intangible plant), such an electric corporation shall be allowed an adjustment by way of the allowance of a deduction from its gross income subject to tax under subdivision one of this section equal to the amount by which (a) that portion of gross income received in any year after nineteen hundred ninety-one which represents the total return authorized by the public service commission to be recovered in rates on the financial resource asset, including amortization, exceeds (b) that portion of gross income received in the twelve-month period immediately preceding the month in which the financial resource asset is established pursuant to authorization of the public service commission and which represents (i) the total revenue derived from any financial stability adjustment and (ii) the total return on interest-bearing construction work in progress in the rate base permitted by the public service commission. No electric corporation shall be allowed the tax adjustment authorized by this subdivision until it shall file, together with the return required to be filed pursuant to subdivision four of this section, a certificate for the period covered by the return from the department of public service verifying that the calculation of such tax adjustment complies with this subdivision. The adjustment to gross income allowed by this subdivision shall not beapplicable in calculating any other tax imposed or authorized to be imposed by this chapter or any other law, and the amount of tax surcharge equal to seventeen per centum imposed pursuant to section one hundred eighty-six-c of this article, and the amount of the tax surcharge imposed under section one hundred eighty-eight of this article, shall be calculated and payable as if the adjustment provided in this subdivision were not allowed. 3. Every utility subject to tax under this section shall keep such records of its business and in such form as the tax commission may require, and such records shall be preserved for a period of three years, except that the tax commission may consent to their destruction within that period or may require that they be kept longer. 4. Every utility subject to tax hereunder shall file, on or before March fifteenth of each year, a return for the year ended on the preceding December thirty-first, except that the year ended on December thirty-first, nineteen hundred seventy-six shall be deemed, for the purposes of this subdivision, to have commenced on June first, nineteen hundred seventy-six, including any period for which the tax imposed hereby or by any amendment hereof is effective, each of which returns shall state the gross income or gross operating income for the period covered by each such return. Returns shall be filed with the commissioner of taxation and finance on a form to be furnished by the commissioner for such purpose and shall contain such other data, information or matter as the commissioner may require to be included therein. Notwithstanding the foregoing provisions of this subdivision, the commissioner may require any utility to file an annual return, which shall contain any data specified by the commissioner, regardless of whether the utility is subject to tax under this section; and the commissioner may require a landlord selling to a tenant gas, electric, steam, water or refrigeration or furnishing gas, electric, steam, water or refrigerator service, where the same has been subjected to tax under this section on the sale to such landlord, to file, on or before the fifteenth day of March of each year, an information return for the year ended on the preceding December thirty-first, covering such year in such form and containing such data as the commissioner may specify. Every return shall have annexed thereto a certification by the head of the utility making the same, or of the owner or of a co-partner thereof, or of a principal officer of the corporation, if such business be conducted by a corporation, to the effect that the statements contained therein are true. 5. If any provision of this section conflicts with any other provision contained in this article, the provision of this section shall control, but the provisions of this article which do not conflict with the provisions of this section shall apply with respect to the taxes under this section, so far as they are, or may be made applicable. 6. The tax imposed by this section shall be charged against and be paid by the utility and may be added as a separate item to bills rendered by the utility to customers. Upon request the utility shall furnish a statement of the amount of tax imposed by this section to its customers for bills rendered on or after January first, two thousand. 7. Notwithstanding any other provision contained in this or any other law, in the event the city of New York shall enact a local law imposing a tax on utilities, such as it imposed by this section, except as to the rate of tax, the tax commission, in its discretion, may arrange with the chief fiscal officer of said city for the collection by him of the tax imposed by this section with respect to items that enter into the tax base for both the tax imposed by said city and that imposed pursuant to this section, and for the remittance by him of the tax imposed by thissection to the tax commission for disposition as in this article provided. If such an arrangement be made, all the provisions of the local law of said city imposing the local tax shall apply with respect to the tax imposed by this section in the same manner as if the local tax rate had included the tax imposed by this section. 8. Notwithstanding any other provision of this chapter or any other law to the contrary, any utility (a) which is subject to tax hereunder, and (b) which is subject to the supervision of the department of public service, shall provide, in addition to any other discount, a reduction of three percent in the rate charged for gas, electricity, steam or water sold, or gas, electric, steam or water service rendered, prior to nineteen hundred ninety-four, for ultimate consumption or use within an area designated as an empire zone pursuant to article eighteen-B of the general municipal law by a business, whether incorporated or unincorporated, other than a retail enterprise as defined in paragraph (k) of subdivision twelve of section two hundred ten of this chapter but without regard to subparagraph (iii) thereof, which has been certified pursuant to article eighteen-B of the general municipal law, and which has claimed a credit under subdivision nineteen of section two hundred ten, subsection (k) of section six hundred six, subsection (e) of section fourteen hundred fifty-six or subdivision (g) of section fifteen hundred eleven of this chapter during the previous fifteen months, as evidenced by a certificate issued by the commissioner to such business. Ninety-six and one-half percent of the aggregate of such reductions during the year may be applied as a credit against the tax imposed pursuant to this section with respect to such year. * 9. Notwithstanding any other provision of this chapter or any other law to the contrary, for taxable periods nineteen hundred ninety-seven through and including two thousand ten, any utility which delivers power under the power for jobs program, as established by section one hundred eighty-nine of the economic development law, shall be allowed a credit, subject to the limitations thereon contained in this subdivision, against the tax imposed under this section equal to net lost revenues from the delivery of power under such power for jobs program. Net lost revenues means the "net receipts" less "net utility revenue" from such delivery of power. For purposes of this subdivision, "net receipts" shall mean the amount that the utility would have otherwise received from customers receiving power pursuant to allocations by the New York state economic development power allocation board in accordance with section one hundred eighty-nine of the economic development law, or from customers whose allocation has been transferred to an energy service company, or from energy service companies to which such allocation has been transferred, pursuant to its tariff supervised by the public service commission for substantially comparable service otherwise applicable to such customers or energy service companies in the absence of such designation, less the utility's annual average incremental short-term variable and capacity costs of providing such power in the absence of such purchase. For the purposes of this subdivision, "net utility revenue" shall mean the revenues the utility actually receives in accordance with such section one hundred eighty-nine from such customers so designated by the New York state economic development power allocation board or from customers whose allocation has been transferred to an energy service company, or from the energy service companies to which a power for jobs allocation has been transferred, less the utility's cost of such power under such program. Provided, however, that any credit under this section shall be used only with respect to the same taxable year during which such credit arose and shall not be capable of being carried forward or backward to any other taxableperiod. Nor shall any credit be allowed to any utility for the total amount of power, expressed in kilowatt hours, purchased by the customers of such utility under such program during the taxable period that exceeds the prorated "baseline energy use" by all customers of that utility purchasing power under such program during the taxable period. "Baseline energy use" with respect to each customer shall mean the largest amount of kilowatt hours of energy used by such customer during any twelve consecutive month period occurring during the preceding thirty months immediately preceding the New York state economic development power allocation board's recommendation of such customer's application, prorated to reflect the length of time of the customer's participation in such program during the taxable period. Provided further, however, that in accordance with subdivision (k) of section one hundred eighty-nine of the economic development law no tax credit shall be available for any revenue losses when a utility has declined to purchase power allocated for sale under such program. No electric corporation shall be allowed the tax credit authorized by this subdivision until it shall file a certificate from the department of public service for the period covered by the return verifying that the calculation of such tax credit complies with this subdivision and the department of public service has approved such certificate and forwarded a copy of such approved certificate to the commissioner or any amended certificate resulting from the need for correction. The credit allowed by this subdivision shall not be applicable in calculating any other tax imposed or authorized to be imposed by this chapter or any other law, and the amount of the tax surcharge imposed under section one hundred eighty-six-c of this article shall be calculated and payable as if the credit provided for by this subdivision were not allowed. * NB Repealed May 15, 2011 * 9. Notwithstanding any other provision contained in this chapter or any other law, any surcharge collected or any administrative fee retained by any telephone corporation acting as collection agent for a municipality pursuant to the provisions of article six of the county law shall not be considered as nor included in the determination of gross income or gross operating income of or by such corporation. * NB Effective May 15, 2011 * 10. Notwithstanding any other provision contained in this chapter or any other law, any surcharge collected or any administrative fee retained by any telephone corporation acting as collection agent for a municipality pursuant to the provisions of article six of the county law shall not be considered as nor included in the determination of gross income or gross operating income of or by such corporation. * NB Effective until May 15, 2011
