New York State Department of Taxation and Finance

Office of Tax Policy Analysis

Technical Services Division

TSB-A-06(31)S

Sales Tax

December 14, 2006

STATE OF NEW YORK

COMMISSIONER OF TAXATION AND FINANCE

ADVISORY OPINION PETITION NO. S040818B

On August 18, 2004, the Department of Taxation and Finance received a Petition for

Advisory Opinion from Mutual Central Alarm Services, Inc., 110 West 46th Street, New York,

NY 10036.

The issue raised by Petitioner, Mutual Central Alarm Services, Inc., is whether

Petitioner’s purchase of burglar and fire alarm equipment that is installed in customers’ premises

in conjunction with providing a central station monitoring service qualifies for exemption from

sales and use tax as a purchase for resale.

Petitioner submitted the following facts as the basis for this Advisory Opinion.

Petitioner provides commercial customers with security systems with or without

monitoring and/or maintenance services for a stated fee. The security systems consist of burglar

alarm security systems, fire alarm systems, closed circuit television camera systems, and access

control systems.

Burglar alarm systems generally consist of a control panel, keypads, sensors, and

electrical wiring. Fire alarm systems generally consist of the same or similar equipment with

additional devices such as smoke detectors and pull stations. Closed circuit television systems

generally consist of cameras, viewing control stations, monitors, and wiring. Access control

systems generally consist of control panels, computer software and hardware, door hardware,

and wiring.

The burglar and fire alarm equipment can be provided to Petitioner’s customers with or

without the customer additionally purchasing the monitoring service. If the customer contracts

for the monitoring service, the customer is considered by Petitioner to have purchased the central

station alarm service. If the customer leases the equipment but does not also contract for the

monitoring service, the customer is considered to have purchased the local alarm service.

Petitioner also provides monitoring services to customers who do not receive equipment from

Petitioner.

In the case of the local alarm service, the alarm rings only at the customer’s premises. In

the case of the central station alarm service, the alarm rings in Petitioner’s office and a “response

person” or the appropriate authority is dispatched to the customer’s premises. Customers with

either service may also contract with Petitioner for maintenance of the system. The equipment is

generally the same whether it is for local alarm service or central station alarm service.

TSB-A-06(31)S

Sales Tax

December 14, 2006

- 2 -

Applicable law and regulations

Section 1101(b) of the Tax Law provides, in part:

When used in this article for the purposes of the taxes imposed by subdivisions

(a), (b), (c) and (d) of section eleven hundred five and by section eleven hundred ten, the

following terms shall mean:

* * *

(4) Retail sale. (i) A sale of tangible personal property to any person for any

purpose, other than (A) for resale as such or as a physical component part of tangible

personal property, or (B) for use by that person in performing the services subject to tax

under paragraphs (1), (2), (3), (5), (7) and (8) of subdivision (c) of section eleven hundred

five where the property so sold becomes a physical component part of the property upon

which the services are performed or where the property so sold is later actually

transferred to the purchaser of the service in conjunction with the performance of the

service subject to tax. Notwithstanding the preceding provisions of this subparagraph, a

sale of any tangible personal property to a contractor, subcontractor or repairman for use

or consumption in erecting structures or buildings, or building on, or otherwise adding to,

altering, improving, maintaining, servicing or repairing real property, property or land, as

the terms real property, property or land are defined in the real property tax law, is

deemed to be a retail sale regardless of whether the tangible personal property is to be

resold as such before it is so used or consumed, except that a sale of a new mobile home

to a contractor, subcontractor or repairman who, in such capacity, installs such property is

not a retail sale.

* * *

(5) Sale, selling or purchase. Any transfer of title or possession or both, exchange

or barter, rental, lease or license to use or consume (including, with respect to computer

software, merely the right to reproduce), conditional or otherwise, in any manner or by

any means whatsoever for a consideration, or any agreement therefor, including the

rendering of any service, taxable under this article, for a consideration or any agreement

therefor.

* * *

(9) Capital improvement. (i) An addition or alteration to real property which:

(A) Substantially adds to the value of the real property, or appreciably prolongs

the useful life of the real property; and

TSB-A-06(31)S

Sales Tax

December 14, 2006

- 3 -

(B) Becomes part of the real property or is permanently affixed to the real

property so that removal would cause material damage to the property or article itself;

and

(C) Is intended to become a permanent installation.

Section 1105 of the Tax Law provides, in part:

Imposition of sales tax. On and after June first, nineteen hundred seventy-one,

there is hereby imposed and there shall be paid a tax ... upon:

(a) The receipts from every retail sale of tangible personal property, except as

otherwise provided in this article.

* * *

(c) The receipts from every sale, except for resale, of the following services:

* * *

(8) Protective and detective services, including, but not limited to, all services

provided by or through alarm or protective systems of every nature, including, but not

limited to, protection against burglary, theft, fire, water damage or any malfunction of

industrial processes or any other malfunction of or damage to property or injury to

persons, detective agencies, armored car services and guard, patrol and watchman

services of every nature other than the performance of such services by a port watchman

licensed by the waterfront commission of New York harbor, whether or not tangible

personal property is transferred in conjunction therewith.

Section 526.6 of the Sales and Use Tax Regulations provides, in part:

(a) The term retail sale or sale at retail means the sale of tangible personal

property to any person for any purpose, except as specifically excluded.

* * *

(c) Resale exclusion. (1) Where a person, in the course of his business operations

purchases tangible personal property or services which he intends to sell, either in the

form in which purchased, or as a component part of other property or services, the

property or services which he has purchased will be considered as purchased for resale,

and therefore not subject to tax until he has transferred the property to his customer.

* * *

TSB-A-06(31)S

Sales Tax

December 14, 2006

- 4 -

(2) A sale for resale will be recognized only if the vendor receives a properly

completed resale certificate. See sections 532.4 and 532.6 of this Title.

(3) Receipts from the sale of property purchased under a resale certificate are not

subject to tax at the time of purchase by the person who will resell the property. The

receipts are subject to tax at the time of the retail sale.

* * *

(6) Tangible personal property purchased for use in performing services which are

taxable under section 1105(c)(1), (2), (3) and (5) of the Tax Law is purchased for resale

and not subject to tax at the time of purchase, where the property so sold (i) becomes a

physical component part of the property upon which the services are performed, or (ii) is

later actually transferred to the purchaser of the service in conjunction with the

performance of the service subject to tax.

Section 541.5 of the New York State Sales and Use Tax Regulations provides, in relevant

part:

(b) Capital Improvement Contracts (1) Purchases. All purchases of tangible

personal property … which are incorporated into and become part of the realty or are

used or consumed in the performance of the contract are subject to tax at the time of

purchase by the contractor and any other purchaser. A certificate of capital improvement

may not be validly given by any person or accepted by a supplier to exempt the purchase

of these materials.

Section 541.5(b)(4)(iii) of the Sales and Use Tax Regulations provides:

If a contract includes the sale of tangible personal property which remains

tangible personal property after installation, the contractor must collect the appropriate

New York State and local taxes from the customer on the selling price, including any

charge for installation, of the tangible personal property unless a properly completed

exemption certificate is issued by the customer. The contractor may apply for a credit or

refund of taxes he has paid on purchases of the tangible personal property that remain

tangible personal property after installation.

Example 1: A contractor sells a building he has constructed and, as a part of the

sale agreement, installs free standing water fountains which remain tangible personal

property when installed. The contractor's billing to his customer must separately state all

charges for tangible personal property included in the sales agreement. The New York

State and applicable local tax rate must be collected on the total charges for the water

fountains including any installation charges. In this instance, the contractor may purchase

TSB-A-06(31)S

Sales Tax

December 14, 2006

- 5 -

the water fountains tax-free using a contractor exempt purchase certificate. If he pays the

tax to his supplier, he is entitled to a refund or credit of the tax paid on the purchase of

the water fountains.

Opinion

Petitioner is in the business of providing burglar and fire alarm equipment and

monitoring services to commercial customers. The equipment can be provided by Petitioner

separately or in conjunction with a central station alarm service. Petitioner also provides

maintenance service for the alarm equipment and monitoring services to customers who do not

receive equipment from Petitioner.

When Petitioner installs equipment in conjunction with a customer’s contract for

Petitioner’s central station alarm service, and Petitioner retains ownership or the right to remove

the equipment, and if the equipment is not otherwise functional as a local alarm service or in

conjunction with central office services offered by other providers, then the installation is

considered to be part of the charge for Petitioner’s provision of protective services taxable

pursuant to section 1105(c)(8) of the Tax Law. In such case, Petitioner is considered to be the

user and consumer of the equipment in the performance of Petitioner’s service. The property is

not considered to be sold or leased to the customer as such or to be actually (i.e. permanently)

transferred to the customer in conjunction with the sale of the protective service. See Waste

Management of New York, Inc., Dec Tax App Trib, March 21, 1991, DTA No. 805791, aff’d 185

AD2d 479 (3d Dept 1992). Any separate charge for such installation or rental of the equipment is

part of the charge for Petitioner’s service and is taxable. Since the equipment is consumed by

Petitioner in the performance of its service, the purchase of the equipment fails to qualify as a

purchase for resale as such or as property actually transferred to the customer in performance of

the service for the purposes of section 1101(b)(4)(i) of the Tax Law. See Baker Protective

Services, Inc. d/b/a Wells Fargo Alarm Services, Inc., Dec Tax App Trib, November 1, 2001,

DTA No. 816899; and John Lombardi, Adv Ops Comm T & F, February 27, 2004,

TSB-A-04(5)S.

However, when Petitioner installs equipment in conjunction with the customer’s contract

for Petitioner’s central station alarm service, and Petitioner retains ownership or the right to

remove the equipment and if the equipment remains functional and could be rented by the

customer for use as a local alarm service or in conjunction with central alarm services offered by

other providers, then Petitioner is leasing its equipment to customers separate from Petitioner’s

provision of protective services. Assuming Petitioner’s charges for such rentals are reasonable

based on Petitioner’s charges for like equipment to customers who rent only equipment without

also contracting for Petitioner’s central station alarm services, the rentals, even when made in

conjunction with the provision of central alarm services, qualify as distinct sales or leases to

customers separate from the provision of protective services. In these circumstances, the

equipment, when installed, does not constitute a capital improvement but retains its identity as

TSB-A-06(31)S

Sales Tax

December 14, 2006

- 6 -

tangible personal property after installation. Under these circumstances, Petitioner’s purchases

of the equipment are purchases for resale as such to its customers and are exempt from sales tax.

See Matter of C.I.D. Refuse, Dec Tax App Trib, August 31, 1995, DTA No. 809934; and section

541.5(b)(4)(iii), Example 1 of the Sales and Use Tax Regulations.

DATED: December 14, 2006 /s/

Jonathan Pessen

Tax Regulations Specialist IV

Technical Services Division

NOTE: The opinions expressed in Advisory Opinions are

limited to the facts set forth therein.