N.Y. Comp. Codes R. & Regs. tit. 20 § 529.9

Current through Register Vol. 46, No. 45, November 2, 2024

Section 529.9 - Certain Indian nations or tribes

Tax Law, § 1116(a)(6)

(a)General.

(1) The Indian nations or tribes specified in paragraph (2) of this subdivision are exempt from the sales and use tax on purchases of tangible personal property, services, food and drink, hotel occupancy, or admissions and dues. In addition, such tribes or nations, under circumstances described in subdivision (d) of this section, may make sales without collecting the sales or use tax.

(2) Only the following Indian nations or tribes residing in New York State are entitled to exemption:

Exempt Tribes and Nations

Cayuga

Oneida Indian Nation

Onondaga Nation of Indians

Poospatuck

St. Regis Mohawk

Seneca Nation of Indians

Shinnecock

Tonawanda Band of Senecas

Tuscarora Nation of Indians

Qualified Reservations

Allegany Indian Reservation

Cattaraugus Indian Reservation

Oneida Indian Territory

Onondaga Indian Reservation

Poospatuck Indian Reservation

St. Regis Indian Reservation

Shinnecock Indian Reservation

Tonawanda Indian Reservation

Tuscarora Indian Reservation

(b)Confirmation of exempt status.

(1) A specified Indian nation or tribe, in order to confirm its exempt status, must submit in letter form its request for exempt status, signed by the governing chief or ruling body of the Indian nation or tribe, to the Taxpayer Assistance Bureau, W.A. Harriman Campus, Albany, NY 12227.

(2) Upon approval of the request by the Taxpayer Assistance Bureau, the bureau will issue to the applicant a numbered exempt organization certificate.

(3) An exempt organization certificate may be revoked for any reason constituting misuse of the exemption granted. Where the Department of Taxation and Finance determines it to be appropriate, for example in the case of fraud, intentional misuse and other similar misuses, such revocation may be effective retroactively to the date of such misuse or deception.

Cross-reference:

For applicable general regulations, including denials and revocations, see subdivision (j) of section 529.1 of this Part.

(c) Sales to exempt Indian nations or tribes.

(1) Any sale or amusement charge to or any use or occupancy by an exempt Indian nation or tribe to which an exempt organization certificate has been issued is exempt from sales and use tax.

(2) In order to exercise its right to exemption, the Indian nation or tribe must be the direct purchaser, occupant or patron of record. It must be the direct payer of record and must furnish its vendors with a properly completed exempt organization certification. Direct purchaser, occupant or patron of record as used in this paragraph includes any agent authorized by the Indian nation or tribe to act on its behalf in making such purchases, provided the Indian nation or tribe and its agent are both identified on any bill or invoice. An Indian nation or tribe is the direct payer of record where direct payment is made by the Indian nation or tribe, or from its funds directly to the vendor.

(3) An exempt organization certification is deemed to be properly completed when it contains the:

(i) name and address of the vendor;

(ii) name and address of the exempt Indian nation or tribe;

(iii) number assigned to the exempt Indian nation or tribe on the exempt organization certificate;

(iv) signature of a responsible officer of the exempt Indian nation or tribe; and

(v) date the certification was executed.

(4) Members, officers or employees of an exempt Indian nation or tribe may not use the exempt certificate issued for the nation or tribe to make tax-exempt purchases for their personal use. See subparagraph (d)(2)(i) of this section for certificates of sales tax exemption for sales on reservations to resident Indians.

(d) Sales by exempt Indian nations or tribes.

(1) Except as provided in section 1116 of the Tax Law or other law, sales of tangible personal property and services by exempt Indian nations or tribes are exempt from the sales and use tax.

(2)

(i) Retail sales of tangible personal property made through a shop or store operated by an exempt Indian nation or tribe, other than sales made or delivered to an Indian on the reservation where he resides, are subject to the sales and use tax. To claim exemption, a certificate of sales tax exemption for sales on reservations to resident Indians must be properly completed and given to each vendor at the time of the first purchase from that vendor. A separate certificate is not necessary for each subsequent purchase, provided the aforementioned conditions are met and the Indian's name and address appear on the sales slip or billing invoice.

(ii) A shop or store as used in this section includes any place or establishment where goods are sold from display with a degree of regularity, frequency and continuity, as well as any place where sales are made through a temporary shop or store located on the same premises as persons required to collect tax.

Example 1:

An Indian nation maintains a shop on its reservation which sells cigarettes, candy, gum and soda. The sales of these items are taxable, except when they are sold to an Indian who resides on the reservation.

(iii) If an exempt Indian nation or tribe operates a shop or store and also makes retail sales of similar (though not necessarily identical) items of tangible personal property by any means other than at its shop or store (such as by remote means or at an auction), those additional sales are considered to be made from its shop or store.

(iv) Notwithstanding any other provision of this paragraph and except as provided by law, all of the provisions of section 529.7(i)(2) of this Part apply to sales of tangible personal property and services by an exempt Indian nation or tribe.

(3) Sales of food and drink in or by a restaurant, tavern or other establishment operated by an exempt Indian nation or tribe, other than the sales exempt under section 1105(d)(ii) of the Tax Law described in subdivision (h) of section 527.8 of this Title, are subject to the sales tax, unless the sale is to a person or organization exempt under this Part, including sales made or delivered to an Indian on the reservation where he resides. A restaurant, tavern or other establishment as used in this section includes any dining room, bar and barroom, and concession stand operated with a degree of regularity, frequency and continuity, as well as any place where sales are made through a temporary restaurant located on the same premises as persons required to collect tax. It is immaterial whether or not the restaurant, tavern or other establishment is located on the premises of the Indian nation or tribe, or whether or not the use of such facilities is restricted to the members of the tribe. (See section 527.8 of this Title for the application of tax on sales of food and drink.)

(4) An exempt Indian nation or tribe making taxable sales is required to register as a vendor, collect the appropriate tax, and file timely sales tax returns.

(5) Failure by an Indian nation or tribe to collect tax on transactions which are subject to tax does not relieve the purchaser from his liability to pay the tax due. The tax due and not collected must be paid by the purchaser directly to the Department of Taxation and Finance. (See Part 532 of this Title.)

Cross-reference:

For the application of tax on admissions, see section 527.10 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 529.9