STATE OF NEW YORK
March 13, 2020
Introduced by Sen. GIANARIS -- read twice and ordered printed, and when
printed to be committed to the Committee on Budget and Revenue --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the tax law, in relation to establishing a tax on
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "digital ad
2 tax act (DATA)".
3 § 2. The tax law is amended by adding a new article 15 to read as
5 ARTICLE 15
6 TAX ON DIGITAL ADS
7 Section 330. Definitions.
8 331. Imposition of tax.
9 332. Returns.
10 333. Tax payment.
11 § 330. Definitions. As used in this article, the following terms shall
12 have the following meanings:
13 1. The term "annual gross revenues" means income or revenue from all
14 sources in New York state, before any expenses or taxes, computed
15 according to generally accepted accounting principles.
16 2. The term "assessable base" means the annual gross revenues derived
17 from digital advertising services in the state.
18 3. The term "digital advertising services" includes advertisement
19 services on a digital interface, including advertisements in the form of
20 banner advertising, search engine advertising, interstitial advertising,
21 and other comparable advertising services, that use personal information
22 about the people the ads are being served to.
23 4. The term "digital interface" means any type of software, including
24 a website, part of a website, or application, that a user is able to
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
S. 8056--A 2
1 5. (a) The term "person" means an individual, receiver, trustee, guar-
2 dian, personal representative, fiduciary, or representative of any kind
3 and any partnership, firm, association, corporation, or other entity.
4 (b) The term "person", unless expressly provided otherwise, does not
5 include a governmental entity or a unit or instrumentality of a govern-
6 mental entity.
7 6. The term "user" means an individual or any other person who
8 accesses a digital interface with a device.
9 § 331. Imposition of tax. 1. There is hereby imposed and shall be paid
10 a tax on the annual gross revenues any person derives from digital
11 advertising services in the state.
12 2. The tax imposed shall be apportioned to the state by the apportion-
13 ment factor determined pursuant to this section. The apportionment
14 factor is a fraction, determined by including only those receipts, net
15 income, net gains, and other items described in this section that are
16 included in the computation of the taxpayer's business income for the
17 taxable year. The numerator of the apportionment fraction shall be equal
18 to the sum of all the amounts required to be included in the numerator
19 pursuant to the provisions of this section and the denominator of the
20 apportionment fraction shall be equal to the sum of all the amounts
21 required to be included in the denominator pursuant to the provisions of
22 this section.
23 3. (a) The annual gross revenues of a person derived from digital
24 advertising in the state shall be included in the numerator of the
25 apportionment fraction. The annual gross revenues of a person derived
26 from digital advertising in the United States shall be included in the
27 denominator of the apportionment fraction.
28 (b) The commissioner shall adopt regulations to determine the amount
29 of revenue derived from each state in which digital advertising services
30 are provided.
31 4. The digital advertising gross revenues tax rate is:
32 (a) two and one-half percent of the assessable base for a person with
33 global annual gross revenues of one hundred million dollars through one
34 billion dollars;
35 (b) five percent of the assessable base for a person with global annu-
36 al gross revenues of one billion one dollars through five billion
38 (c) seven and one-half percent of the assessable base for a person
39 with global annual gross revenues of five billion one dollars through
40 fifteen billion dollars; and
41 (d) ten percent of the assessable base for a person with global annual
42 gross revenues exceeding fifteen billion dollars.
43 § 332. Returns. 1. Each person that, in a calendar year, has annual
44 gross revenues derived from digital advertising services in the state of
45 at least one million dollars shall complete, under oath, and file with
46 the commissioner a return, on or before April fifteenth the year follow-
47 ing the effective date of this article.
48 2. (a) Each person that reasonably expects the person's annual gross
49 revenues derived from digital advertising services in the state to
50 exceed one million dollars shall complete, under oath, and file with the
51 commissioner a declaration of estimated tax, on or before April
52 fifteenth of that year.
53 (b) Any person required to file a declaration of estimated tax for a
54 taxable year pursuant to paragraph (a) of this subdivision, shall
55 complete and file with the commissioner a quarterly estimated tax return
S. 8056--A 3
1 on or before June fifteenth, September fifteenth, and December fifteenth
2 of such year.
3 3. Any person required to file a return pursuant to this section shall
4 file with the return an attachment that states any information that the
5 commissioner requires to determine annual gross revenues derived from
6 digital advertising services in the state.
7 4. Any person required to file a return under subdivision two of this
8 section shall maintain records of digital advertising services provided
9 in the state and the basis for the calculation of the digital advertis-
10 ing gross revenues tax owed.
11 § 333. Tax payment. 1. Except as provided in subdivision two of this
12 section, each person required to file a return under section three
13 hundred thirty-two of this article shall pay the digital advertising
14 gross revenues tax with the return that covers the period for which the
15 tax is due.
16 2. Any person required to file estimated digital advertising gross
17 revenues tax returns under paragraph (b) of subdivision two of section
18 three hundred thirty-two of this article shall pay:
19 (a) at least twenty-five percent of the estimated digital advertising
20 gross revenues tax shown on the declaration or amended declaration for a
21 taxable year:
22 i. With the declaration or amended declaration that covers the year;
24 ii. With each quarterly return for that year; and
25 (b) any unpaid digital advertising gross revenues tax for the year
26 shown on the person's return that covers that year with the return.
27 § 3. The tax law is amended by adding a new section 1816 to read as
29 § 1816. Digital ad tax. Any willful act or omission by any person
30 which constitutes a violation of any provision of article fifteen of
31 this chapter shall constitute a misdemeanor.
32 § 4. This act shall take effect immediately and shall apply to taxable
33 years beginning on and after January 1, 2021.