With this blog, we hope to keep you up to date on impactful changes in the sales tax compliance, especially in New York State. The All About Sales Tax blog is written by a team of Hodgson Russ tax attorneys and its primary author, Joe Endres. The blog will review legislative and administrative changes in the sales tax; we’ll discuss new sales tax case law; and highlight the enforcement initiatives and tactics we’re seeing while defending businesses in sales tax audits.

Matter of M & Y Developers, Inc.; Division’s Rep.: Anita Luckina; Petitioner’s Reps.: Joshua Lawrence and Timothy Noonan; Articles 28 and 29

The Tribunal again characterized the issue as whether Petitioner purchased taxable tangible property or a nontaxable capital improvement installation service. The Tribunal rejected Petitioner’s argument that it purchased capital improvement services because:

  1. Petitioner itself provided more than de minimus involvement in the installation of the concrete; and
  2. The invoices for the transactions at issue did not refer to, or charge for, the installation of the concrete.

Finally, the Tribunal distinguished the primary case relied upon by Petitioner by concluding that Petitioner had not shown that the process of distributing and applying asphalt emulsion (found to be the installation of a capital improvement to real property) is sufficiently similar to the process of pumping and pouring concrete. The Tribunal viewed the pouring of concrete into a form or designated area to be akin to the delivery of building materials, and, therefore, a taxable sale of tangible property.

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