Is the admission charge to play a paintball 'survival game' — including the equipment used — subject to New York sales tax?

Plain-English summary

National Survival Game of New York, Inc. runs a paintball "survival game" — two or more teams in a shooting match with paint-firing weapons on a playing field. It charges each player a single fee covering use of the field plus a pistol, holster, goggles, paint, and CO2 cartridges (the pistol, holster, and goggles are returned after the game). Players who run out mid-game can buy more paint or CO2 for a separate charge. It asked whether the admission and equipment are taxable.

The Department split the answer into three parts:

• The admission to play is not taxable. New York taxes amusement admissions but excepts charges for admission to (or use of) facilities for sporting activities in which the patron is a participant (Tax Law 1105(f)(1)). Playing the game is such a participant sport — analogous to the regulation's bowling-lane and ski-lift examples (20 NYCRR 527.10) — so the admission is exempt.
• Equipment furnished as part of the admission is not a "sale" — the operator pays tax on its own purchases. Providing the pistol, holster, goggles, paint, and CO2 as part of the single admission is like a bowling alley furnishing house balls or a miniature-golf course furnishing putters: the charge is the same whether or not the player uses the gear, so the operator is not selling tangible personal property (20 NYCRR 527.10(b)(1)(i)). That means the operator itself must pay sales tax when it buys that equipment.
• Separate charges for extra paint/CO2 are taxable sales. When the operator charges separately (in a transaction distinct from the admission) for additional paint or CO2 cartridges, that is a taxable retail sale (Tax Law 1105(a)). The operator may buy those cartridges for resale with a resale certificate (Form ST-120; 20 NYCRR 532.4(d)) and must keep adequate records (20 NYCRR 533.2). But any resale-purchased paint/CO2 that the operator instead gives out as part of the admission must be reported as a purchase subject to use tax (20 NYCRR 532.4(d)(3)).

Because amusement charges are presumed taxable until the contrary is shown, the operator carries the burden of proving the admission is exempt (Tax Law 1132(c)).

What this means for you

"Participant sport" admissions escape the amusement tax. If your customers are playing — not just watching — the admission to the activity is generally exempt, the way bowling and lift tickets are. The key is that they participate.

Furnishing gear inside a single admission price flips who pays the tax. When equipment comes with the admission and the price doesn't change based on whether the player uses it, you're the consumer of that gear: pay tax when you buy it, don't charge the player. Don't give a resale certificate for equipment you'll furnish as part of admission.

Separately priced consumables are retail sales — handle them the resale way. If you sell extra paint or CO2 as its own line item, that's taxable to the customer; buy it for resale, keep records, and self-assess use tax on any of that resale stock you end up giving away with admissions.

Common questions

Q: Do I charge sales tax on the fee to play?
A: No. The admission to a participant sporting activity is exempt under 1105(f)(1). But you carry the burden of proving it qualifies (1132(c)).

Q: What about the paint gun, goggles, and starter paint that come with the game?
A: Those are furnished as part of the admission, not sold. You don't tax the player, but you pay sales tax on your own purchase of that equipment.

Q: I sell extra paint and CO2 during the game. Taxable?
A: Yes, as a separate retail sale. Buy those for resale with Form ST-120, keep records, and report as a use-tax purchase any resale stock you instead hand out with an admission.

Citations and references

Tax Law:

• 1105(a) — imposes sales tax on retail sales of tangible personal property (extra paint/CO2 sold separately)
• 1105(f)(1) — taxes amusement admissions but excepts admission to/use of facilities for sporting activities in which the patron participates
• 1132(c) — amusement charges are presumed taxable; the burden of proving otherwise is on the collector

Regulation:

• 20 NYCRR 527.10 — amusement and participant-sporting admissions; bowling-lane and ski-lift examples
• 20 NYCRR 527.10(b)(1)(i) — equipment furnished as part of an admission is not a sale; the operator is the consumer
• 20 NYCRR 532.4(d) — resale certificate (Form ST-120)
• 20 NYCRR 532.4(d)(3) — resale-purchased property later put to own use is reported as a use-tax purchase
• 20 NYCRR 533.2 — recordkeeping requirements

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_1985.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a85_47s.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-85(47)S
Sales Tax
October 16, 1985

STATE OF NEW YORK
STATE TAX COMMISSION
ADVISORY OPINION

PETITION NO. S831128A

On November 28, 1983, a Petition for Advisory Opinion was received from the National
Survival Game of New York, Inc., 16 Dankin Avenue, Mount Kisco, New York 10549.
The issue raised is whether the charges for admission to a game and equipment required to
play the game are subject to sales tax when the customer is a participant in the game.
Petitioner operates a facility where customers can participate in what Petitioner describes as
a survival game. This game is played on a playing field and pits two or more parties in a shooting
match with weapons that shoot paint. Petitioner charges the participants a single fee for the use of
the playing field, a pistol and holster, goggles, paint and CO2 cartridges. The pistol, holster and
goggles are returned by the customer after the game. Additionally, if participants run out of paint or
CO2 during the course of a game, they may purchase additional paint or CO2 cartridges for which
they are separately charged.
Section 1105(a) of the Tax Law imposes a sales tax on the receipts from every retail sale of
tangible personal property, except as otherwise excluded or exempted.
Section 1101(b)(5) of the Tax Law defines "sales" as any transfer of title or possession or
both, exchange or barter, rental, lease or license to use or consume, conditional or otherwise in any
manner or by any means whatsoever for a consideration.
Section 1105(f)(1) of the Tax Law imposes a sales tax on any admission charge to or for the
use of any place of amusement in the state except charges to a patron for admission to, or use of,
facilities for sporting activities in which such patron is to be a participant.
Section 1132(c) of the Tax Law provides that all amusement charges of any type mentioned
in section 1105(f) are subject to tax until the contrary is established and that the burden of proving
that any amusement charge is not taxable is on the person required to collect tax.
Regulation section 527.10(d)(4) illustrates the applicability of section 1105(f)(1) of the Tax
Law with the following examples:
Example 6: Admission charges for the use of bowling lanes and swimming pools
are not subject to tax. However, any charge for the use of tangible personal
property in conjunction with the sporting activity is taxable. Included as taxable
would be bowling shoes, towel and locker rentals.

RODERICK G. W. CHU, COMMISSIONER
TP-8 (3/83)

GABRIEL B. DiCERBO, DEPUTY COMMISSIONER
FRANK J. PUCCIA, DIRECTOR

-2­
TSB-A-85(47)S
Sales Tax
October 16, 1985

Example 7: A ski resort's charge for lift tickets is an exempt admission charge
to a sporting facility in which the patron will be a participant. If the facility
charges for the use of skis or other equipment, such charge is for the rental of
tangible personal property which is subject to tax. ( 20 NYCRR 527.10).
Accordingly, the admission charge for participating in the survival game is not subject to tax
since the patron is a participant.
Petitioner's provision of equipment (pistol, holster, goggles, paint and CO2) necessary to play
the game is analogous to bowling alleys' providing bowling balls and miniature golf courses'
providing putters and golf balls. In each of these cases the charge to the patron is the same whether
or not the participant uses the equipment (e.g. a bowler using his own ball instead of a house ball).
The use of the equipment is part of the admission. In providing equipment in this manner, Petitioner
is not selling tangible personal property within the meaning of section 1105(a) of the Tax Law. (20
NYCRR 527.10(b)(1)(i)). Accordingly, Petitioner is required to pay sales tax on such purchases.
Where Petitioner charges a fee (in a transaction separate and distinct from the admission) for
the use of additional paint or CO2 cartridges, such a transaction constitutes a taxable sale of tangible
personal property pursuant to section 1105(a) of the Tax Law. Accordingly, Petitioner may purchase
such paint and CO2 cartridges without tax by giving its supplier a properly completed resale
certificate (Form ST-120). (20 NYCRR 532.4(d)). In the event Petitioner purchases paint or CO2
cartridges using a resale certificate, Petitioner must maintain records adequate to verify the sales and
use tax status of such purchase (20 NYCRR 533.2). Paint and CO cartridges purchased tax exempt
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with a resale certificate and which is supplied to the patron as part of the admission, must be reported
as a purchase subject to use tax. (20 NYCRR 532.4(d)(3)).

DATED: September 19, 1985

s/FRANK J. PUCCIA
Director
Technical Services Bureau

NOTE: The opinions expressed in Advisory Opinions
are limited to the facts set forth herein.