STATE OF NEW YORK ________________________________________________________________________ 5544 2021-2022 Regular Sessions IN ASSEMBLY February 19, 2021 ___________ Introduced by M. of A. DARLING -- read once and referred to the Commit- tee on Ways and Means AN ACT to amend the tax law, in relation to short-term rental taxes The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision (c) of section 1101 of the tax law, as added by 2 chapter 93 of the laws of 1965, paragraphs 2, 3, 4 and 6 as amended by 3 section 2 of part AA of chapter 57 of the laws of 2010, paragraph 5 as 4 amended by chapter 575 of the laws of 1965, and paragraph 8 as added by 5 section 3 of part AA of chapter 57 of the laws of 2010, is amended to 6 read as follows: 7 (c) When used in this article for the purposes of the tax imposed 8 under subdivision (e) of section eleven hundred five, the following 9 terms shall mean: 10 (1) Hotel. A building or portion of it which is regularly used and 11 kept open as such for the lodging of guests. The term "hotel" includes 12 [~~an apartment~~] a hotel, a motel, boarding house or club, whether or not 13 meals are served. This term shall not include a short-term rental unit 14 as defined in paragraph nine of this subdivision. 15 (2) Occupancy. The use or possession, or the right to the use or 16 possession, of any room in a hotel or short-term rental unit. "Right to 17 the use or possession" includes the rights of a room remarketer as 18 described in paragraph eight of this subdivision. 19 (3) Occupant. A person who, for a consideration, uses, possesses, or 20 has the right to use or possess, any room in a hotel or short-term 21 rental unit under any lease, concession, permit, right of access, 22 license to use or other agreement, or otherwise. "Right to use or 23 possess" includes the rights of a room remarketer as described in para- 24 graph eight of this subdivision. 25 (4) Operator. Any person operating a hotel. Such term shall include a 26 room remarketer and such room remarketer shall be deemed to operate a EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09698-01-1

A. 5544 2 1 hotel, or portion thereof, with respect to which such person has the 2 rights of a room remarketer. This term shall not include a hosting plat- 3 form as defined in paragraph ten of this subdivision. 4 (5) Permanent resident. Any occupant of any room or rooms in a hotel 5 or short-term rental unit for at least ninety consecutive days shall be 6 considered a permanent resident with regard to the period of such occu- 7 pancy. 8 (6) Rent. The consideration received for occupancy, including any 9 service or other charge or amount required by the operator or short-term 10 rental host to be paid as a condition for occupancy, valued in money, 11 whether received in money or otherwise and whether [~~received~~] collected 12 by the operator [~~or a~~], short-term rental host, hosting platform, room 13 remarketer or another person on behalf of [~~either~~] any of them. 14 (7) Room. Any room or rooms of any kind in any part or portion of a 15 hotel or short-term rental unit, which is available for or let out for 16 any purpose other than a place of assembly. 17 (8) Room remarketer. A person who reserves, arranges for, conveys, or 18 furnishes occupancy, whether directly or indirectly, to an occupant for 19 rent in an amount determined by the room remarketer, directly or indi- 20 rectly, whether pursuant to a written or other agreement. Such person's 21 ability or authority to reserve, arrange for, convey, or furnish occu- 22 pancy, directly or indirectly, and to determine rent therefor, shall be 23 the "rights of a room remarketer". A room remarketer is not a permanent 24 resident with respect to a room for which such person has the rights of 25 a room remarketer. 26 (9) Short-term rental unit. A room, group of rooms, or other living or 27 sleeping space, or any other space let to occupants, including but not 28 limited to private dwellings, residences, or buildings used as resi- 29 dences. The term does not include a hotel. 30 (10) Hosting platform. A person or entity who, pursuant to an agree- 31 ment with an operator or short-term rental host, facilitates the occu- 32 pancy of a hotel or short-term rental unit. A person "facilitates the 33 occupancy" by, in exchange for a fee, either: (A) providing the forum in 34 which an operator or short-term rental host can list or advertise a room 35 for occupancy; or (B) providing the forum in which, or by means of 36 which, the offer for occupancy is accepted. 37 (11) Short-term rental host. An owner, tenant, or occupant of a short- 38 term rental unit who offers occupancy in such a short-term rental unit 39 for rent. 40 § 2. Subdivision (e) of section 1105 of the tax law is amended by 41 adding a new paragraph 3 to read as follows: 42 (3) Except within cities with a population of one million or more, the 43 rent for every occupancy of a room or rooms in a short-term rental unit, 44 except for a permanent resident or where the rent is not more than at 45 the rate of two dollars per day. 46 § 3. Subdivision 1 of section 1131 of the tax law, as amended by 47 section 2 of part G of chapter 59 of the laws of 2019, is amended to 48 read as follows: 49 (1) "Persons required to collect tax" or "person required to collect 50 any tax imposed by this article" shall include: every vendor of tangible 51 personal property or services; every recipient of amusement charges; 52 every hosting platform with respect to occupancies it facilitates as 53 described in paragraph ten of subdivision (c) of section eleven hundred 54 one of this article; every operator of a hotel or short-term rental 55 host, except with respect to occupancies facilitated by a hosting plat- 56 form; and every marketplace provider with respect to sales of tangible

A. 5544 3 1 personal property it facilitates as described in paragraph one of subdi- 2 vision (e) of section eleven hundred one of this article. Said terms 3 shall also include any officer, director or employee of a corporation or 4 of a dissolved corporation, any employee of a partnership, any employee 5 or manager of a limited liability company, or any employee of an indi- 6 vidual proprietorship who as such officer, director, employee or manager 7 is under a duty to act for such corporation, partnership, limited 8 liability company or individual proprietorship in complying with any 9 requirement of this article, or has so acted; and any member of a part- 10 nership or limited liability company. Provided, however, that any 11 person who is a vendor solely by reason of clause (D) or (E) of subpara- 12 graph (i) of paragraph (8) of subdivision (b) of section eleven hundred 13 one of this article shall not be a "person required to collect any tax 14 imposed by this article" until twenty days after the date by which such 15 person is required to file a certificate of registration pursuant to 16 section eleven hundred thirty-four of this part. 17 § 4. Section 1132 of the tax law is amended by adding a new subdivi- 18 sion (m) to read as follows: 19 (m) In carrying out the obligations imposed under this section, a 20 hosting platform shall have all the duties, benefits, and entitlements 21 of a person required to collect tax under this article and article twen- 22 ty-nine of this chapter with respect to the occupancies giving rise to 23 the tax obligation, including the right to accept a certificate or other 24 documentation from an occupant substantiating an exemption or exclusion 25 from tax, as if such hosting platform were the operator of the hotel or 26 short-term rental host of the short-term rental unit with respect to 27 such occupancy, including the right to receive the refund authorized by 28 subdivision (e) of this section and the credit allowed by subdivision 29 (f) of section eleven hundred thirty-seven of this part. 30 § 5. Section 1133 of the tax law is amended by adding a new subdivi- 31 sion (g) to read as follows: 32 (g) A hosting platform is relieved of liability under this article for 33 failure to collect the correct amount of tax to the extent that the 34 hosting platform can show that the error was due to incorrect or insuf- 35 ficient information given to the hosting platform by the operator or 36 short-term rental host, whether intentional or unintentional. 37 § 6. Section 1137 of the tax law is amended by adding a new subdivi- 38 sion (g) to read as follows: 39 (g) A hosting platform who facilitates the occupancy of a hotel or 40 short-term rental unit is relieved from the duty to remit to the commis- 41 sioner the tax imposed by this article in regard to a particular occu- 42 pancy if, pursuant to an agreement with an operator or short-term rental 43 host registered with the commission as required by section eleven 44 hundred thirty-four of this part, the hosting platform and operator or 45 short-term rental host agree that the operator or short-term rental host 46 is required to remit the tax directly to the commissioner. In such situ- 47 ation, the operator or short-term rental host shall be treated as if it 48 collected the tax and shall have all of the rights and obligations 49 imposed by law on persons required to collect tax, including but not 50 limited to the liability imposed by section eleven hundred thirty-three 51 of this part. 52 § 7. Section 1142 of the tax law is amended by adding a new subdivi- 53 sion 16 to read as follows: 54 16. Notwithstanding any provision of law to the contrary, including 55 but not limited to subdivisions four, five, and six of this section, no 56 hosting platform shall be required to list any operator of a hotel or

A. 5544 4 1 short-term rental host of a short-term rental unit on any return 2 required to be filed with the commissioner under the applicable tax laws 3 and any regulations adopted pursuant thereto. Information provided by a 4 hosting platform to the commissioner shall be confidential. Such confi- 5 dential information shall not be disclosed by the commissioner unless 6 the hosting platform has given written consent to make such disclosure 7 or there is an agreement between the hosting platform and the commis- 8 sioner to make such disclosure. Notwithstanding any law to the contrary, 9 information provided by a hosting platform shall not be subject to arti- 10 cle six of the public officers law and shall not be provided to any 11 other agency of the state, locality, or any other government entity or 12 political subdivision. Audits of any hosting platform shall be conducted 13 solely on the basis of the tax identification number associated with 14 each hosting platform and shall not be conducted directly or indirectly 15 on any operator of a hotel, short-term rental host of a short-term 16 rental unit, or any occupant to whom occupancy is rented from an opera- 17 tor of a hotel or short-term rental unit of a short-term rental host, 18 nor shall any hosting platform be required to disclose any personally 19 identifiable information relating to any operator of a hotel, short-term 20 rental host of a short-term rental unit, or occupant to whom occupancy 21 is rented from an operator of a hotel or short-term rental host of a 22 short-term rental unit. Provided, however, that if a hosting platform 23 and operator or short-term rental host have entered into an agreement 24 pursuant to section eleven hundred thirty-six of this part, only the 25 operator or short-term rental host shall be subject to audit by the 26 commissioner. 27 § 8. Clause 1 of subparagraph (i) of the opening paragraph of section 28 1210 of the tax law, as amended by chapter 200 of the laws of 2009, is 29 amended to read as follows: 30 (1) any such city having a population of one million or more is hereby 31 authorized and empowered to adopt and amend local laws, ordinances or 32 resolutions imposing such taxes in any such city, at the rate of four 33 and one-half percent, except that tax shall not be imposed on short-term 34 rental units as defined in paragraph nine of subdivision (c) of section 35 eleven hundred one of this chapter; 36 § 9. Section 1243 of the tax law is amended by adding a new subdivi- 37 sion (c) to read as follows: 38 (c) No determination or proposed determination of tax or determination 39 on any application for refund shall be enjoined or reviewed by an action 40 for declaratory judgment, an action for money had and received, or by 41 any action or proceeding other than a proceeding under article seventy- 42 eight of the civil practice law and rules, except as otherwise provided 43 in subdivision (a) or (b) of this section. 44 § 10. This act shall take effect immediately and shall apply to taxa- 45 ble years beginning on or after January 1, 2022.

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