Do New York State or New York City sales taxes apply to a kinesiology practitioner's wellness-counseling services in NYC?

Plain-English summary

The petitioner is a professional kinesiology practitioner in New York City who offers personalized "high-level wellness counseling" -- drawing on Oriental medicine, chiropractic, applied kinesiology, nutrition, and more, including taking a health history and using muscle testing as biofeedback. The services don't involve selling tangible property. She asked whether New York State or New York City sales tax applies.

The Office of Counsel concluded neither applies, with one condition:

• No State tax. New York State sales tax reaches only the services enumerated in Tax Law 1105(c). Kinesiology wellness-counseling isn't among them.
• No City tax (with a caveat). New York City taxes "massage services and similar services," and "every sale of services by weight control salons, health salons, gymnasiums, Turkish and sauna bath and similar establishments," plus charges for using such facilities (Tax Law 1212-A(a)(2); NYC Admin. Code 11-2002(a)). Wellness counseling offered from an office setting -- not from a weight-control/health salon, gym, sauna, or similar place -- is not among those taxable city services (TSB-A-13(6)S; TSB-A-10(46)S).
• The condition: the services must not be provided in one of those establishments. The location/venue is what can flip the result.

What this means for you

Wellness, bodywork, and counseling practitioners in NYC

The same service can be taxable or not depending on where you provide it. Delivered from a professional office, kinesiology/wellness counseling escapes both state and NYC tax. Provide it inside a health salon, gym, or sauna and the NYC tax on those establishments' services can attach.

State vs. city are separate questions

New York State and New York City impose tax on different lists. A service untaxed by the state can still be taxed by the city (e.g., massage/health-salon services) -- and vice versa. Check both.

Common questions

Q: Is wellness counseling a taxable service in New York State?
A: No. The state taxes only enumerated services, and this isn't one.

Q: Does New York City tax it?
A: Not when provided from an office. NYC taxes massage and the services of weight-control/health salons, gyms, and saunas -- so providing it inside such an establishment could make it taxable.

Q: What's the deciding factor?
A: The setting. Keep these services out of a health-salon/gym/sauna venue to stay outside the NYC tax.

Citations and references

• Tax Law section 1105(c) (enumerated services subject to State sales tax)
• Tax Law section 1212-A(a)(2) (NYC tax on massage, weight-control/health salons, gyms, etc.)
• New York City Administrative Code section 11-2002(a) (NYC local tax)

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_2013.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a13_36s.pdf

Original ruling text

New York State Department of Taxation and Finance
TSB-A-13(36)S
Sales Tax
October 17, 2013

Office of Counsel
Advisory Opinion Unit
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. S120705A

The Department of Taxation and Finance received a Petition for Advisory Opinion from
name and address redacted. Petitioner asks whether New York State or New York City sales tax
applies to charges for kinesiology services provided by a “professional kinesiology practitioner”
in New York City.
We conclude that neither New York State nor New York City sales tax applies to charges
for kinesiology services provided by a professional kinesiology practitioner in New York City,
so long as such services are not provided in a weight control or health salon or other place
described in Tax Law § 1212-A(a)(2).
Facts
Petitioner describes herself as a professional kinesiology practitioner who provides
kinesiology services in New York City. She describes those services as “a form of high level
wellness counseling. . . . which draws from many other professional health modalities to offer
the client an integrated approach to understanding their health and to figure ways to improve it.
Modalities it draws from include Oriental Medicine, Chiropractic, Applied Kinesiology Psychoneuro-immunology, nutrition, and human development, to name a few.” Those personalized
services include activities such as obtaining a complete health history from the client, as well as
the use of muscle testing as a biofeedback mechanism. Her services do not involve the sale or
transfer of any tangible personal property. Petitioner provides these services in what she
describes as professional healthcare offices; she states she does not provide these services in a
gymnasium, health or fitness center, or a weight loss center. Kinesiology is not a licensed
profession under Title VIII of the New York State Education Law.
Analysis
Tax Law § 1105(c) lists the services that are subject to New York State sales tax. The
services Petitioner offers are not among these taxable services.
Tax Law § 1212-A lists the services that are subject to New York City sales tax. Section
1212-A(a)(2) authorizes the City to impose a local sales tax on “massage services and similar
services, and every sale of services by weight control salons, health salons, gymnasiums, turkish
and sauna bath and similar establishments, and every charge for the use of such facilities . . . .”
Section 11-2002(a) of the City’s Administrative Code imposes its tax on those services. The
wellness counseling services Petitioner describes, offered from an office setting and not from a

-2-

TSB-A-13(36)S
Sales Tax
October 17, 2013

weight control and health salon, gymnasium, Turkish and sauna bath, or similar place, are not
among those taxable services. See TSB-A-13(6)(S); TSB-A-10(46)S.
Accordingly, neither New York State nor New York City sales tax applies to Petitioner’s
services.

DATED: October 17, 2013

NOTE:

/S/
DEBORAH R. LIEBMAN
Deputy Counsel

An Advisory Opinion is issued at the request of a person or entity. It is limited to the
facts set forth therein and is binding on the Department only with respect to the
person or entity to whom it is issued and only if the person or entity fully and
accurately describes all relevant facts. An Advisory Opinion is based on the law,
regulations, and Department policies in effect as of the date the Opinion is issued or
for the specific time period at issue in the Opinion. The information provided in this
document does not cover every situation and is not intended to replace the law or
change its meaning.