S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1924
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                   January 15, 2015
                                      ___________
       Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
         printed to be committed to the Committee on Investigations and Govern-
         ment Operations
       AN ACT to amend the tax law, in relation to  enacting  the  multichannel
         video programming distributor competition act
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The tax law is amended by adding a  new  section  186-g  to
    2  read as follows:
    3    S  186-G. EXCISE TAX ON DIRECT BROADCAST SATELLITE SERVICES. 1.  DEFI-
    4  NITIONS. AS USED IN  THIS  SECTION,  WHERE  NOT  OTHERWISE  SPECIFICALLY
    5  DEFINED AND UNLESS A DIFFERENT MEANING IS CLEARLY REQUIRED:
    6    (A) "COMMISSIONER", MEANS THE COMMISSIONER OF TAXATION AND FINANCE.
    7    (B)  "DIRECT  BROADCAST  SATELLITE SERVICE", MEANS THE DISTRIBUTION OR
    8  BROADCASTING BY SATELLITE OF VIDEO PROGRAMMING OR SERVICES  DIRECTLY  TO
    9  RECEIVING  EQUIPMENT  LOCATED AT AN END USER SUBSCRIBER'S OR AN END USER
   10  CUSTOMER'S PREMISES, INCLUDING, BUT NOT LIMITED  TO,  THE  PROVISION  OF
   11  PREMIUM  CHANNELS,  THE  PROVISION  OF  MUSIC OR OTHER AUDIO SERVICES OR
   12  CHANNELS,  AND  ANY  OTHER  SERVICE  RECEIVED  IN  CONNECTION  WITH  THE
   13  PROVISION OF DIRECT BROADCAST SATELLITE SERVICE.
   14    (C)  "DIRECT BROADCAST SATELLITE SERVICE PROVIDER", MEANS A PERSON WHO
   15  TRANSMITS, BROADCASTS OR OTHERWISE PROVIDES DIRECT  BROADCAST  SATELLITE
   16  SERVICE TO SUBSCRIBERS OR CUSTOMERS IN THE STATE.
   17    (D)  "GROSS  RECEIPTS",  MEANS ALL CONSIDERATION OF ANY KIND OR NATURE
   18  RECEIVED BY A DIRECT BROADCAST SATELLITE SERVICE PROVIDER, OR AN  AFFIL-
   19  IATE  OF  SUCH PERSON, IN CONNECTION WITH THE PROVISION OF DIRECT BROAD-
   20  CAST SATELLITE SERVICE TO SUBSCRIBERS OR CUSTOMERS, INCLUDING  RECURRING
   21  MONTHLY CHARGES FOR DIRECT BROADCAST SATELLITE SERVICE AND PAY-PER-VIEW,
   22  VIDEO-ON-DEMAND  AND  OTHER  EVENT-BASED  CHARGES  FOR  DIRECT BROADCAST
   23  SATELLITE SERVICE; PROVIDED, HOWEVER,  THAT  GROSS  RECEIPTS  SHALL  NOT
   24  INCLUDE:
   25    (1)  CHARGES  FOR  THE RENTAL OF EQUIPMENT RELATED TO THE PROVISION OF
   26  DIRECT BROADCAST SATELLITE SERVICE;
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06966-01-5
       S. 1924                             2
    1    (2) ACTIVATION, INSTALLATION, REPAIR AND MAINTENANCE CHARGES OR  SIMI-
    2  LAR  SERVICE CHARGES RELATED TO THE PROVISION OF DIRECT BROADCAST SATEL-
    3  LITE SERVICE;
    4    (3)  SERVICE  ORDER  CHARGES, SERVICE TERMINATION CHARGES OR ANY OTHER
    5  ADMINISTRATIVE CHARGES RELATED TO  THE  PROVISION  OF  DIRECT  BROADCAST
    6  SATELLITE SERVICE;
    7    (4) REVENUE NOT ACTUALLY RECEIVED, REGARDLESS OF WHETHER IT IS BILLED,
    8  INCLUDING, BUT NOT LIMITED TO, BAD DEBTS;
    9    (5)  REVENUE  RECEIVED BY AN AFFILIATE OR OTHER PERSON IN EXCHANGE FOR
   10  SUPPLYING GOODS AND  SERVICES  USED  BY  A  DIRECT  BROADCAST  SATELLITE
   11  SERVICE PROVIDER;
   12    (6) REFUNDS, REBATES OR DISCOUNTS MADE TO SUBSCRIBERS OR CUSTOMERS, TO
   13  ADVERTISERS OR TO OTHER PERSONS;
   14    (7)  REVENUE  FROM  TELECOMMUNICATIONS SERVICE AS DEFINED IN 47 U.S.C.
   15  SECTION 153(46);
   16    (8) REVENUE FROM INFORMATION SERVICES AS DEFINED IN 47 U.S.C.  SECTION
   17  153(20);
   18    (9)  REVENUE  FROM  ANY  SERVICE  THAT IS SUBJECT TO TAX UNDER ARTICLE
   19  TWENTY-EIGHT OF THIS CHAPTER;
   20    (10) REVENUE FROM THE SALE OF CAPITAL ASSETS OR SURPLUS EQUIPMENT  NOT
   21  USED BY THE PURCHASER TO RECEIVE DIRECT BROADCAST SATELLITE SERVICE FROM
   22  THE DIRECT BROADCAST SATELLITE SERVICE PROVIDER;
   23    (11) REIMBURSEMENTS MADE BY PROGRAMMERS TO THE DIRECT BROADCAST SATEL-
   24  LITE  SERVICE PROVIDER FOR MARKETING COSTS INCURRED BY THE DIRECT BROAD-
   25  CAST SATELLITE SERVICE PROVIDER FOR THE INTRODUCTION OF NEW  PROGRAMMING
   26  THAT  EXCEED THE ACTUAL COSTS INCURRED BY THE DIRECT BROADCAST SATELLITE
   27  SERVICE PROVIDER;
   28    (12) LATE PAYMENT FEES COLLECTED FROM SUBSCRIBERS OR CUSTOMERS; OR
   29    (13) CHARGES, OTHER THAN THOSE CHARGES SPECIFICALLY DESCRIBED  HEREIN,
   30  THAT  ARE AGGREGATED OR BUNDLED WITH SUCH SPECIFICALLY-DESCRIBED CHARGES
   31  ON A SUBSCRIBER OR CUSTOMER'S BILL, IF THE  DIRECT  BROADCAST  SATELLITE
   32  SERVICE  PROVIDER  CAN  REASONABLY IDENTIFY THE CHARGES IN ITS BOOKS AND
   33  RECORDS KEPT IN THE REGULAR COURSE OF BUSINESS.
   34    (E) "PERSON", MEANS  AN  INDIVIDUAL,  PARTNERSHIP,  LIMITED  LIABILITY
   35  COMPANY,  TRUST  OR  ASSOCIATION,  WITH  OR WITHOUT TRANSFERABLE SHARES,
   36  JOINT-STOCK COMPANY, CORPORATION, SOCIETY, CLUB, ORGANIZATION,  INSTITU-
   37  TION,  ESTATE,  RECEIVER,  TRUSTEE,  ASSIGNEE  OR  REFEREE AND ANY OTHER
   38  PERSON  ACTING  IN  A  FIDUCIARY  OR  REPRESENTATIVE  CAPACITY,  WHETHER
   39  APPOINTED  BY  A  COURT OR OTHERWISE, AND ANY COMBINATION OF INDIVIDUALS
   40  ACTING AS A UNIT.
   41    (F) "SUBSCRIBER OR CUSTOMER", MEANS ANY PERSON OR MEMBER OF THE GENER-
   42  AL PUBLIC WHO RECEIVES DIRECT BROADCAST SATELLITE SERVICE FROM A  DIRECT
   43  BROADCAST  SATELLITE  SERVICE  PROVIDER  AND DOES NOT FURTHER DISTRIBUTE
   44  SUCH SERVICE IN THE ORDINARY COURSE OF BUSINESS.
   45    (G) "VIDEO PROGRAMMING", MEANS PROGRAMMING PROVIDED BY, OR  COMPARABLE
   46  TO  PROGRAMMING  PROVIDED  BY, A TELEVISION BROADCAST STATION INCLUDING,
   47  BUT NOT LIMITED  TO,  VIDEO  PROGRAMMING  PROVIDED  BY  LOCAL  NETWORKS,
   48  NATIONAL   BROADCAST   NETWORKS,   CABLE   NETWORKS  AND  ALL  FORMS  OF
   49  PAY-PER-VIEW VIDEO ENTERTAINMENT.
   50    2. EXCISE IMPOSED. AN EXCISE IS HEREBY IMPOSED UPON THE  PROVISION  OF
   51  DIRECT  BROADCAST  SATELLITE  SERVICE TO A SUBSCRIBER OR CUSTOMER BY ANY
   52  DIRECT BROADCAST SATELLITE SERVICE PROVIDER IN AN AMOUNT EQUAL TO 5  PER
   53  CENT OF THE DIRECT BROADCAST SATELLITE SERVICE PROVIDER'S GROSS REVENUES
   54  DERIVED FROM OR ATTRIBUTABLE TO SUCH CUSTOMER OR SUBSCRIBER.
   55    3. REIMBURSEMENT. REIMBURSEMENT FOR THE EXCISE IMPOSED IN THIS SECTION
   56  SHALL  BE  PAID  BY  THE  SUBSCRIBER OR CUSTOMER TO THE DIRECT BROADCAST
       S. 1924                             3
    1  SATELLITE SERVICE PROVIDER AND EACH DIRECT BROADCAST  SATELLITE  SERVICE
    2  PROVIDER  PROVIDING DIRECT BROADCAST SATELLITE SERVICE TO SUBSCRIBERS OR
    3  CUSTOMERS SHALL COLLECT FROM SUCH SUBSCRIBER OR CUSTOMER THE FULL AMOUNT
    4  OF  THE  EXCISE  IMPOSED  WITH RESPECT TO GROSS REVENUES DERIVED FROM OR
    5  ATTRIBUTABLE TO SUCH CUSTOMER OR SUBSCRIBER AND SUCH EXCISE SHALL  BE  A
    6  DEBT  FROM  THE SUBSCRIBER OR CUSTOMER TO THE DIRECT BROADCAST SATELLITE
    7  SERVICE PROVIDER WHEN ADDED TO THE SUBSCRIBER OR CUSTOMER'S INVOICE  FOR
    8  VIDEO  PROGRAMMING  SERVICE  AND SHALL BE RECOVERABLE AT LAW IN THE SAME
    9  MANNER AS OTHER DEBTS.
   10    4. CERTIFICATE  OF  REGISTRATION.  EVERY  DIRECT  BROADCAST  SATELLITE
   11  SERVICE  PROVIDER  SUBJECT TO THE TAX IMPOSED BY THIS SECTION SHALL FILE
   12  WITH  THE  COMMISSIONER  A  CERTIFICATE  OF  REGISTRATION,  IN  A   FORM
   13  PRESCRIBED BY THE COMMISSIONER, AT LEAST TWENTY DAYS PRIOR TO COMMENCING
   14  BUSINESS  OR  OPENING A NEW PLACE OF BUSINESS, SUCH SELLING OR TAKING OF
   15  POSSESSION OR PAYMENT DERIVED FROM DIRECT BROADCAST  SATELLITE  SERVICE,
   16  OR  THE  EFFECTIVE  DATE  OF  THIS SECTION, WHICHEVER COMES FIRST.   THE
   17  COMMISSIONER SHALL FURNISH TO EACH DIRECT  BROADCAST  SATELLITE  SERVICE
   18  PROVIDER  GENERAL  INFORMATION  ABOUT THE TAX IMPOSED UNDER THIS SECTION
   19  INCLUDING INFORMATION ON RECORDS  TO  BE  KEPT,  RETURNS  AND  PAYMENTS,
   20  NOTIFICATION  REQUIREMENTS  AND  FORMS. SUCH CERTIFICATE OF REGISTRATION
   21  MAY BE AMENDED IN ACCORDANCE WITH RULES PROMULGATED BY THE COMMISSIONER.
   22    5. RETURNS. EVERY PROVIDER  OF  DIRECT  BROADCAST  SATELLITE  SERVICES
   23  SUBJECT  TO  TAX  UNDER  THIS  SECTION  SHALL  FILE,  ON OR BEFORE MARCH
   24  FIFTEENTH OF EACH YEAR, A RETURN FOR THE YEAR  ENDED  ON  THE  PRECEDING
   25  DECEMBER THIRTY-FIRST, AND PAY THE TAX DUE, WHICH RETURN SHALL STATE THE
   26  GROSS RECEIPTS FOR THE PERIOD COVERED BY EACH SUCH RETURN AND THE RESALE
   27  EXCLUSIONS  DURING SUCH PERIOD.  RETURNS SHALL BE FILED WITH THE COMMIS-
   28  SIONER ON A FORM TO BE FURNISHED BY THE COMMISSIONER  FOR  SUCH  PURPOSE
   29  AND  SHALL CONTAIN SUCH OTHER DATA, INFORMATION OR MATTER AS THE COMMIS-
   30  SIONER MAY REQUIRE TO BE INCLUDED THEREIN. NOTWITHSTANDING THE FOREGOING
   31  PROVISIONS OF THIS SUBDIVISION, THE COMMISSIONER MAY REQUIRE ANY PROVID-
   32  ER OF DIRECT BROADCAST SATELLITE SERVICES  TO  FILE  AN  ANNUAL  RETURN,
   33  WHICH  SHALL  CONTAIN ANY DATA SPECIFIED BY THE COMMISSIONER, REGARDLESS
   34  OF WHETHER SUCH PROVIDER IS SUBJECT TO TAX  UNDER  THIS  SECTION.  EVERY
   35  RETURN  SHALL  HAVE  ANNEXED  THERETO A CERTIFICATION BY THE HEAD OF THE
   36  PROVIDER OF TELECOMMUNICATION SERVICES MAKING THE SAME, OR OF THE  OWNER
   37  OR  OF  A  PARTNER  OR  MEMBER THEREOF, OR OF A PRINCIPAL OFFICER OF THE
   38  CORPORATION, IF SUCH BUSINESS BE CONDUCTED  BY  A  CORPORATION,  TO  THE
   39  EFFECT THAT THE STATEMENTS CONTAINED THEREIN ARE TRUE.
   40    6.  APPLICABILITY. IF ANY PROVISION OF THIS SECTION CONFLICTS WITH ANY
   41  OTHER PROVISION CONTAINED IN THIS ARTICLE, THE PROVISION OF THIS SECTION
   42  SHALL CONTROL, BUT THE PROVISIONS OF THIS ARTICLE WHICH DO NOT  CONFLICT
   43  WITH  THE  PROVISIONS  OF  THIS  SECTION SHALL APPLY WITH RESPECT TO THE
   44  TAXES UNDER THIS SECTION, SO FAR AS THEY ARE, OR MAY BE MADE APPLICABLE.
   45    7. LIABILITY. A DIRECT BROADCAST SATELLITE SERVICE PROVIDER WHO  FAILS
   46  TO  PAY  THE  COMMISSIONER  ANY SUMS REQUIRED TO BE PAID BY THIS SECTION
   47  SHALL BE PERSONALLY AND INDIVIDUALLY LIABLE THEREFOR TO THE  STATE.  THE
   48  TERM  "DIRECT  BROADCAST  SATELLITE  SERVICE  PROVIDER", AS USED IN THIS
   49  SECTION, INCLUDES AN OFFICER OR EMPLOYEE OF A CORPORATION OR OTHER BUSI-
   50  NESS ENTITY OR A MEMBER OR EMPLOYEE OF A PARTNERSHIP WHO, AS SUCH  OFFI-
   51  CER,  EMPLOYEE  OR MEMBER, IS UNDER A DUTY TO PAY OVER THE TAXES IMPOSED
   52  BY THIS SECTION.
   53    S 2. This act shall take effect immediately and shall apply to all tax
   54  years commencing on or after the first of January  next  succeeding  the
   55  date on which it shall have become a law.