Are ticket sales to a movie-based motion-simulator ride subject to New York State sales tax as an admission charge?

Subject

Meltzer, Lippe, Wolfe, Schlissel & Sazer, P.C., is whether ticket sales to a movie-based simulator ride are subject to New York State sales tax.

What this means for you

A law firm asked on behalf of a client planning to build a "movie/ride" attraction -- two 40-passenger, 6-axis motion-simulator pods styled like jet/rocket helicopters, each with a large front-projection screen and an 8-channel sound system, giving riders a 4-6 minute simulated aerial sightseeing tour. Riders wait in a themed pre-boarding area with multimedia previews, then board, ride, and exit through a lobby with food/beverage and souvenir concessions. Tickets can be sold alone or bundled at a discount with other local tourist attractions (with each attraction's price separately stated).

New York taxes admission charges to a "place of amusement" -- defined as a place providing facilities for entertainment, amusement, or sports. This opinion draws a line between a PLACE you're admitted to (taxable) and a RIDE you take (not automatically taxable the same way): because the simulator is a ride rather than a place housing amusement facilities generally, the fee to use it isn't an "admission charge" within the statute's meaning, so it escapes the Section 1105(f)(1) admissions tax. The opinion leans on a 1985 Court of Appeals case, Fairland Amusements, Inc. v. State Tax Commission, for the ride-vs-place distinction.

Q&A

Q: We're building a themed motion-simulator attraction and charging admission for the ride itself -- is that taxable?
A: Per this opinion, no -- because the simulator is a ride, not a "place of amusement" under Section 1101(d)(10) of the Tax Law, the ticket charge isn't a taxable admission charge under Section 1105(f)(1).

Q: Does bundling our ride's ticket with other attraction tickets, at a discount, change the answer?
A: This opinion doesn't rule on bundled pricing directly (the facts note the discounted price per attraction would be separately stated), but its holding turns on the nature of the ride itself, not on how tickets are packaged or priced.

Q: What about the waiting-area displays, concessions, or other amenities around the ride -- does this opinion cover those too?
A: No -- this opinion addresses only the ticket charge for using the simulator ride itself; it doesn't analyze tax treatment of concession sales or other charges.

Citations

• Tax Law § 1105(f)(1) -- imposes sales tax on admission charges over ten cents to a place of amusement.
• Tax Law § 1101(d)(10) -- defines "place of amusement" as any place providing facilities for entertainment, amusement, or sports.
• Tax Law § 1101(d)(2) -- defines "admission charge."
• Fairland Amusements, Inc. v. State Tax Commission, 66 N.Y.2d 932 (1985) -- cited for the distinction between a taxable place of amusement and a non-taxable ride.

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_1994.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a94_24s.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-94 (24)S
Sales Tax
June 8, 1994

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. S940201A

On February 1, 1994, a Petition for Advisory Opinion was received from Meltzer, Lippe,
Wolfe, Schlissel & Sazer, P.C., 190 Willis Avenue, Mineola, N.Y. 11501.
The issue raised by Petitioner, Meltzer, Lippe, Wolfe, Schlissel & Sazer, P.C., is whether
ticket sales to a movie-based simulator ride are subject to New York State sales tax.
Petitioner's client is planning to build and operate a motion simulator attraction consisting
of flight simulators and related computer-controlled film projection technologies. This
film/equipment apparatus will simulate an aerial sightseeing tour. This "movie/ride" will be located
on leased space within an office building.
There will be two 40 passenger computer controlled flight simulators designed to look like
jet/rocket helicopters. The simulators (computer controlled aircraft flight simulators) will have a
range of motion along 6 axes. At the front of each simulator is a 20' x 16' screen upon which a fast­
paced film is displayed. The simulator will also contain an advanced 8 channel digital sound system
with 4 dual amplifiers.
Tickets will be purchased separately or may be packaged with tickets for other tourists
attractions in the locality. When purchased in the package, prices will be discounted. However, the
discounted price attributable to each attraction will be separately stated.
The actual simulated "flight" time for the movie/ride will be 4-6 minutes. While waiting for
the prior group to complete the movie/ride attendees will be placed in a "pre-boarding" waiting area.
While in the waiting area, the attendees will be kept occupied by various multimedia displays
including previews of the ride and historical chronicles of the subject of the tour. Passengers will
then receive instructions and board one of the two "spacecopters." Finally, after the ride has been
completed they will pass through the lobby area containing a beverage, food and souvenir concession
area before exiting the attraction.
Section 1105(f)(1) of the Tax Law imposes a tax on "[a]ny admission charge where such
admission charge is in excess of ten cents to or for the use of any place of amusement in the state ...."
Section 1101(d)(10) of the Tax Law defines a place of amusement as "[a]ny place where any
facilities for entertainment, amusement, or sports are provided." Section 1101(d)2) of the Tax Law
provides that an admission charge is "[t]he amount paid for admission, including any service charge
and any charge for entertainment or amusement or for the use of facilities therefore."

-2­
TSB-A-94 (24)S
Sales Tax
June 8, 1994
Petitioner's client's movie based flight simulator is a ride. It is not a place of amusement as
defined in Section 1101(d)(10) of the Tax Law and thus the fee for its use is not an admission charge
as defined in Section 1101(d)(2) of the Tax Law. Since Petitioner's client's sale of tickets will be for
the use of the ride and not an admission charge to a place of amusement, the proceeds from the sale
of the tickets will not be subject to the sales tax imposed under Section 1105(f)(1) of the Tax Law.
(See: Fairland Amusements, Inc. v State Tax Commission, 66 NY2d 932).

DATED: June 8, 1994

/s/
PAUL B. COBURN
Deputy Director
Taxpayer Services Division

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