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IF PETIONER HAD PURCHASED CONCRETE AS A PART OF A SERVICE FOR THE INSTALLATION OF CAPITAL IMPROVEMENTS, THE PURCHASE WOULD HAVE BEEN EXEMPT FROM SALES TAX; BUT PETITIONER PURCHASED THE CONTRACT IN “RAW” FORM AND PETITIONER’S EMPLOYEES AND SUBCONTRACTORS USED IT TO BUILD CAPITAL IMPROVEMENTS; THE PURCHASE OF THE CONCRETE WAS THEREFORE SUBJECT TO SALES TAX (THIRD DEPT).

The Third Department determined the petitioner was not entitled to an exemption from sales tax on concrete purchased from suppliers. The work to install the capital improvements made from the concrete was done by petitioner’s employees and subcontractors. Because the concrete suppliers merely supplied the concrete in raw form, the sales tax exemption for the installation of capital improvements did not apply:

The purchase would be exempt from sales tax … if it was not for the concrete itself and was instead for the service of “installing property which, when installed, will constitute an addition or capital improvement to real property, property or land” … . * * *

… [T]he hearing testimony of petitioner’s own president left little doubt that it was petitioner’s employees or its subcontractors, and not its concrete suppliers, who were installing capital improvements. Petitioner’s president testified, in particular, that petitioner’s employees or subcontractors performed all preparatory work for the installation, doing necessary excavation work, building the formwork and flatwork to shape the poured concrete and installing rebar and other supports for it. The concrete suppliers would prepare the amount and type of concrete required, arrive at the site, and pour or pump the concrete into the areas that had been prepared. Petitioner then did “anything that need[ed] to be done” to ensure that the poured concrete would form the structure contemplated by the project specifications, such as smoothing the concrete and installing keys, details or lines in the concrete before it set, and petitioner bore responsibility for correcting any problems with the final product. Matter of M&Y Devs. Inc. v Tax Appeals Trib. of the State of N.Y., 2022 NY Slip Op 04600, Third Dept 7-14-22

Practice Point: Concrete purchased as part of a service which not only supplies the concrete but builds capital improvements with the concrete is exempt from sales tax. But here petitioner purchased the concrete which was then used by petitioner’s employees and subcontractors to build the capital improvements. The “capital improvement’ sales-tax exemption did not apply.

 

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