• New York Issues Technical Memorandum Explaining Sales and Use Tax Resale Exclusion for Cable and Satellite Providers After Echostar Case
  • March 24, 2014 | Authors: Andrew D. Appleby; Maria M. Todorova
  • Law Firms: Sutherland Asbill & Brennan LLP - New York Office ; Sutherland Asbill & Brennan LLP - Atlanta Office
  • In a Technical Memorandum, the New York State Department of Taxation and Finance explained the impact of the holding in Echostar, which addressed the New York sales and use tax resale exclusion for certain purchases made by satellite and cable television service providers. In Echostar, the New York Court of Appeals, New York’s highest court, held that a satellite television service provider’s purchases of equipment qualified for the resale exclusion because the service provider leased the equipment to its customers, and the equipment was not an element of the service. Prior to Echostar, the Department had taken the position, pursuant to TSB-M-94(2)S (Sept. 15, 1994), that the resale exclusion did not apply to purchases of equipment provided to customers to deliver cable or satellite programming because the equipment was used by the television service provider to provide the service and was not resold to customers. In the post-Echostar Technical Memorandum, the Department explained the circumstances under which purchases of equipment by satellite and cable service providers will qualify for the resale exclusion because of Echostar and provided transitional rules for such purchases. The Department further clarified that a service provider can structure its transactions in a manner where the Department will deem that the equipment provided to customers is used by the service provider and is not subject to the resale exclusion. N.Y. Tech. Mem., TSB-M-14(3)S (Mar. 7, 2014) (interpreting In re Echostar Satellite Corp. v. New York Tax App. Trib., 20 N.Y.3d 286, 982 N.E.2d 1248 (2012)).