Submission Date:
Question:
I found some information that may indicate that association libraries which charge patrons for faxes should collect sales tax.
This publication is the source of my inquiry: https://www.tax.ny.gov/pdf/publications/sales/pub843.pdf
On page 25, under "Sales and Utility Services" there is mention of telephony and a reference to section 1105(b) of the Tax Law. The section of the law specifically mentions facsimile services, but only intrastate transmissions would be taxable.
However, page 6 states: "Agencies and instrumentalities include any authority, commission, or independent board created by an act of the New York State Legislature for a public purpose".
Examples of "agencies and instrumentalities" include:
• NYS Department of Taxation and Finance
• NYS Department of Education
• Association of Fire Districts of New York State
• Nassau County Village Officials Association
Since association libraries are chartered by NYS Dept. of Education, I wondered if association libraries would be exempt from collecting sales tax on faxes.
Thank you in advance for clarifying whether association libraries are exempt from collecting sales tax on faxes.
Answer:
There's a lot going on in this question, so I am going to be less fun and flowery[1] than usual as I answer it.
I am sorry to report that per NY Tax Law Section 1105(b), an association library must collect sales tax on sales of facsimile services for faxes sent and received within the state.[2]
In part, this is because association libraries, although chartered by State Ed, are regarded by the NYS Department of Taxation & Finance as not-for-profit corporations, not state agencies/instrumentalities.[3]
Now, as a not-for-profit, an association library is exempt from collecting and paying taxes on facsimile services per NY Tax Law Section 186-e--just like any other chartered library or museum would be. But as the resource cited in the member's question[4] shows, exemption under 186-e doesn't equate to exemption under 1105 (b).[5]
Of course, legal guidance in "Ask the Lawyer" can supplement--but never substitute--guidance from your association library's tax professional or lawyer. If the accountant or lawyer for your association library finds a way to avoid the obligation to collect tax on sales of intra-state faxes: 1) get that in writing from them before relying on it; and 2) please send us an update!
Thanks for a question that inspired frequent cross-checking of the tax code! I wish I could offer a more helpful answer.
[1] "Fun and flowery!" is, I am sure, the headline of the upcoming New York Times Book Review covering "Ask the Lawyer: The Novel" (which, to the author's knowledge, is not in the works, but if you know a publisher, tell them I'm open to persuasion).
[2] If the person is faxing to New Jersey, or Russia, or anywhere but within New York, tax under 1105 does not apply. If you want to read more on that, see NY Tax Opinion TSB-A-96 (70) S from November 25 1995.
[3] I could write a lot about this, but let's just say the commentary in NY Tax Opinion "TSB-A-13(1)R", regarding how the NYS Department of Taxation and Finance regards an association library, is a good summary of this position.
[4] NY Tax Publication 843; the link to the document is in the question.
[5] I'd say this situation isn't fair--but since this is an answer about taxes, such an observation would be redundant.
