Does a videographer have to charge sales tax on video tape copies sold to a town board, a church, or a wedding couple?

Plain-English summary

Cynthia Shane videotapes town board meetings, church services, and occasionally weddings and receptions. In every case she keeps the master tape and sells a copy to the purchaser -- the town board, the church, or the newlyweds -- for a fee. She asked the Department whether these sales are subject to sales tax when the buyer is a government body or an exempt organization.

New York taxes retail sales of tangible personal property, and a video tape is tangible personal property. But sales to New York State, its agencies, or its political subdivisions (like a town or city) are exempt if the government entity is the direct purchaser and gives the seller a purchase order or other appropriate documentation within 90 days of the sale. Similarly, sales to a qualifying religious, charitable, or educational organization under Tax Law § 1116(a)(4) are exempt if the organization furnishes a properly completed exempt organization certificate within 90 days.

Applying those rules: selling a copy of a town board meeting tape to the town itself is exempt (with timely documentation). Selling a copy of a church-service tape to the church itself is also exempt (with a timely exempt organization certificate). But if Shane sells additional copies of that same tape to individual church members for their own personal use -- rather than to the church -- those sales are taxable, because the purchaser is an individual, not the exempt organization. And selling a wedding video to the newlyweds is a straightforward taxable retail sale; there's no exemption available since a married couple isn't a government or exempt-organization purchaser.

What this means for you

Videographers, photographers, and similar service providers

Whether your sale of a physical copy (tape, disc, or similar tangible item) is taxable often turns on who the direct purchaser is, not just what the underlying event was. A copy sold directly to a qualifying government or exempt-organization purchaser can be tax-exempt with the right paperwork; the same footage sold to an individual attendee or client is a taxable sale of tangible personal property.

Nonprofits, churches, and government bodies buying recording services

If you want to buy a tax-exempt copy, you (the organization) need to be the actual purchaser of record -- not an individual member acting on their own -- and you need to give the seller a purchase order (government) or an exempt organization certificate (nonprofit) within 90 days of the sale.

Accountants and tax professionals

This opinion is a useful illustration of how the same underlying service (videotaping) can produce differently-taxed sales depending solely on who buys each copy and whether timely exemption documentation is furnished -- worth flagging for any client selling recorded media to a mix of government, nonprofit, and individual customers.

Common questions

Q: Is the videotaping service itself taxed, or just the tape?
A: This opinion addresses the sale of the video tape copy as tangible personal property; the taxability turns on who buys that copy and whether that purchaser qualifies for an exemption.

Q: What if the church doesn't give a timely exemption certificate?
A: The opinion's exemption for the church's own purchase depends on Shane receiving a properly completed exempt organization certificate within 90 days of the sale; the applicable regulations treat a sale without timely documentation as presumed taxable.

Q: Can another videographer rely on this ruling for their own sales?
A: No. This advisory opinion binds the Department only with respect to Cynthia Shane and the specific facts she described.

Citations and references

Statutes and regulations:

• Tax Law § 1105(a) (tax on retail sales of tangible personal property)
• Tax Law § 1116 (exempt organizations)
• Tax Law § 1132(c) (presumption of taxability; exemption/resale certificates)
• 20 NYCRR § 529.1, § 529.2 (governmental purchaser exemption)
• 20 NYCRR § 529.7 (religious/charitable organization exemption)
• 20 NYCRR § 532.4 (burden of proof; exemption documentation)

Prior rulings and cases referenced:

• None cited in this opinion.

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_1996.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a96_88s.pdf

Original ruling text

New York State Department of Taxation and Finance
TSB-A-96 (88) S
Sales Tax
December 27, 1996

Taxpayer Services Division
Technical Services Bureau

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO.S961016A

On October 16, 1996, a Petition for Advisory Opinion was received from Cynthia Shane, 8
Town Garden Drive #11, Liverpool, New York 13088.
The issue raised by Petitioner, Cynthia Shane, is whether the sale of services and video tapes
to towns, cities, other government entities, and exempt organizations is subject to sales tax.
Petitioner submits the following facts.
Petitioner video tapes town board meetings, church services and on occasion wedding
services and receptions. In each event, the master tape is kept by Petitioner and a copy of the tape
is given to the purchaser (e.g., town board, church or the newlyweds) for a fee.
Section l105(a) of the Tax Law imposes a tax upon "[t]he receipts from every retail sale of
tangible personal property, except as otherwise provided in this article."
Section 1116 of the Tax Law provides in part:
Exempt organizations. (a) Except as otherwise provided in this section, any
sale or amusement charge by or to any of the following or any use or occupancy by
any of the following shall not be subject to the sales and compensating use taxes
imposed under this article:
(1) The state of New York, or any of its agencies, instrumentalities, public
corporations (including a public corporation created pursuant to agreement or
compact with another state or Canada) or political subdivisions where it is the
purchaser, user or consumer, or where it is a vendor of services or property of a kind
not ordinarily sold by private persons;
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(4) Any corporation, association, trust, or community chest, fund or
foundation, organized and operated exclusively for religious, charitable, scientific,
testing for public safety, literary or educational purposes, or to foster national or
international amateur sports competition (but only if no part of its activities involve
the provision of athletic facilities or equipment), or for the prevention of cruelty to
children or animals, no part of the net earnings of which inures to the benefit of any
private shareholder or individual, no substantial part of the activities of which is
carrying on propaganda, or otherwise attempting to influence legislation,

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(except as otherwise provided in subsection (h) of section five hundred one of the
United States internal revenue code of nineteen hundred fifty-four, as amended), and
which does not participate in, or intervene in (including the publishing or distributing
of statements), any political campaign on behalf of any candidate for public office;
(Emphasis added)
Section 1132(c) of the Tax Law provides in part:
(1) For the purpose of the proper administration of this article and to prevent
evasion of the tax hereby imposed, it shall be presumed that all receipts for property
or services of any type mentioned in subdivisions (a). (b). (c) and (d) of section
eleven hundred five, all rents for occupancy of the type mentioned in subdivision (e)
of said section, and all amusement charges of any type mentioned in subdivision (f)
of said section, are subject to tax until the contrary is established, and the burden of
proving that any receipt, amusement charge or rent is not taxable hereunder shall be
upon the person required to collect tax or the customer. Except as provided in
subdivision (h) or (k) of this section, unless (i) a vendor, not later than ninety days
after delivery of the property or the rendition of the service, shall have taken from the
purchaser a resale or exemption certificate in such form as the commissioner may
prescribe, signed by the purchaser and setting forth the purchaser's name and address
and, except as otherwise provided by regulation of the commissioner, the number of
the purchaser's certificate of authority, together with such other information as the
commissioner may require, to the effect that the property or service was purchased
for resale or for some use by reason of which the sale is exempt from tax under the
provisions of section eleven hundred fifteen, and, where such resale or exemption
certificate requires the inclusion of the purchaser's certificate of authority number or
other identification number required by regulations of the commissioner, that the
purchaser's certificate of authority has not been suspended or revoked and has not
expired as provided in section eleven hundred thirty-four, or (ii) the purchaser, not
later than ninety days after delivery of the property or the rendition of the service,
furnishes to the vendor: any affidavit, statement or additional purchaser is an exempt
organization described in section eleven hundred sixteen, the sale shall be deemed
a taxable sale at retail. Where a resale or exemption certificate or an affidavit,
statement or additional evidence referred to in the previous sentence is received
within the time limit set forth therein, but is deficient in some material manner, and
where such deficiency is thereafter removed, the receipt of such resale or exemption
certificate or such affidavit, statement or additional evidence shall be deemed to have
satisfied all of the requirements of the preceding sentence. Where such a resale or
exemption certificate or such an affidavit, statement or additional evidence has been
furnished to the vendor, the burden of proving that the receipt, amusement charge or
rent is not taxable hereunder shall be solely upon the customer. The vendor shall not

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be required to collect tax from purchasers who furnish a resale or exemption
certificate, or such an affidavit, statement or additional evidence in proper form,
unless, in the case of a resale or exemption certificate described in clause (i) of the
second sentence of this paragraph whereon the purchaser's certificate of authority
number, or other identification number required by regulation of the commissioner,
is required to be included, such purchaser's certificate of authority is invalid because
it has been suspended or revoked as provided in section eleven hundred thirty-four,
and the commissioner has furnished registered vendors with information identifying
those persons whose certificates of authority have been suspended or revoked, or
unless such purchaser's certificate of authority is invalid because it has expired, and
the commissioner has provided registered vendors with a means of determining
whether such expiration has occurred. Where the vendor accepts such a resale or
exemption certificate from a person identified by the commissioner as one whose
certificate of authority has been suspended or revoked or from a person whose
certificate of authority has been identified as having expired, the receipt, amusement
charge or rent from such transaction shall be deemed to be a taxable sale at retail.
(Emphasis added)
Section 529.1 of the Sales and Use Tax Regulations provides, in part:
(a) Except as otherwise provided in this Title. any sale by or to any person or
organization described in this Part or any amusement charge to such a person or
organization where it is the purchaser, or any use or occupancy by any such person
or organization is not subject to the sales or use tax imposed by article 28 or
authorized by article 29 of the Tax Law. Any sale, amusement charge, use or
occupancy by or to any person or organization who or which does not qualify for
exemption pursuant to the provisions of this Part may qualify for exemption as
described in other provisions of this Title.
(b) Any person or organization other than:
(1) New York State;
(2) any of New York State's agencies, instrumentalities, public corporations
(including a public corporation or compact with another state or Canada);
(3) political subdivisions of New York State; . . . .(Emphasis added)
Section 529.2 of the Sales and Use Tax Regulations provides, in part:
New York State, agencies, instrumentalities, public corporations, and political
subdivisions thereof. (Tax Law, Sec. ll16(a)(1)) (a) Governmental entities.
(1) Agencies and instrumentalities of the State as used in this section means

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any authority, commission or independent board created by an act of the Legislature
for a public purpose.
(2) A public corporation as used in this section means any corporation created
by an act of the Legislature for a public purpose or pursuant to an agreement or
compact with another state or Canada.
Example: Urban Development Corporations and Industrial Development
Agencies are public corporations and may purchase tangible personal property
exempt from the sales and use taxes. Cross-reference: For contracts with exempt
organizations, see Part 541 of this Title.
(3) A political subdivision as used in this section means a county, town. city.
village, school district, fire district, special district corporation and board of
cooperative educational services of this State.
(b) As purchaser. (1) New York State. or any of its agencies. instrumentalities, public
corporations or political subdivisions (hereinafter referred to as New York State
governmental entities) are not subject to sales or use tax when they are the purchaser.
user. or consumer of tangible personal property or services or when they are the
occupant of a hotel room or a patron at a place of amusement, club, roof garden,
cabaret or other similar places. (Emphasis added)
(2) New York State governmental entities as purchasers, users, consumers,
occupants or patrons must exercise their right to exemption through the issuance of
governmental purchase orders or the appropriate exemption document. (Emphasis
added)
Section 529.7 of the Sales and Use Tax Regulations provides, in part:
Religious, charitable, scientific, testing for public safety, literary or
educational organizations, organizations which foster national or international
amateur sports competition, and organizations for the prevention of cruelty to
children or animals. (Tax Law, Sec. 1116 (a)(4)) (a)General.(1) Any corporation,
association, trust, or community chest, fund or foundation, organized and operated
exclusively for religious, charitable, scientific, testing for public safety, literary or
educational purposes, or to foster national or international amateur sports competition
(but only if no part of its activities involve the provision of athletic facilities or
equipment), or for the prevention of cruelty to children or animals, no part of the net
earnings of which inures to the benefit of any private shareholder or individual no
substantial part of the activities of which is carrying on propaganda or otherwise
attempting to influence legislation (except as otherwise provided in subsection (h)
of section 501 of the United States Internal Revenue Code of 1986), and

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which does not participate in, or intervene in (including the publishing or distributing
of statements), any political campaign on behalf of any candidate for public office,
which meet the qualifications of this section are exempt from the sales and use tax
on any purchases of tangible personal property, services, food and drink, hotel
occupancy, or admissions and dues. In addition, such organizations may, except
under the circumstances described in subdivision (i) of this section, make sales
without collecting the sales or use tax. (emphasis added)
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(h) Sales to exempt organizations. (1) Any sale or amusement charge to or
any use or occupancy by an exempt organization to which an exempt organization
certificate has been issued is exempt from sales and use tax. (Emphasis added)
(2) In order to exercise its right to exemption the organization must be the
direct purchaser, occupant or patron of record. It must also be the direct payer of
record and must furnish its vendors With a properly completed exempt organization
certification. Direct purchaser, occupant or patron as used in this paragraph includes
any agent or employee authorized by the organization to act on its behalf in making
such purchases, provided the organization and its agent or employee are both
identified on any bill or invoice. An organization is the direct payer of record where
direct payment is made by the organization or from its funds directly to the vendor.
(Emphasis added)
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(4) Sales to any member, officer or employee of an exempt organization are
subject to the sales and use tax when the sales are for the personal use of the
purchaser rather than the organization.
Section 532.4 of the Sales and Use Tax Regulations provides:
(a) General. (1) It is presumed that all receipts for property or service of any
type mentioned in subdivisions (a), (b), (c) and (d) of section 1105 of the Tax Law,
all rents for occupancy of the type mentioned in subdivision (e) of said section, and
all amusement charges of any type mentioned in subdivision (f) of said section, are
subject to tax until the contrary is established.
(b) Burden of proof. (1) The burden of proving that any receipt, amusement
charge, or rent is not taxable shall be upon the person required to collect the tax and
the customer.
(2) A vendor who in good faith accepts from a purchaser a properly
completed exemption certificate or, as authorized by the Department, other
documentation evidencing exemption from tax not later than 90 days after delivery

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of the property or the rendition of the service is relieved of liability for failure to
collect the sales tax with respect to that transaction. The timely receipt of the
certificate or documentation itself will satisfy the vendor's burden of proving the
nontaxability of the transaction and relieve the vendor of responsibility for collecting
tax from the customer. (Emphasis added)
In this case, Petitioner video tapes town board meetings, church services and on occasion
wedding services and receptions. In each event, the master tape is kept by Petitioner and a copy of
the tape is given to the purchaser for a fee. Section 1132(c) of the Tax Law and Section 532.4(a) of
the Sales and Use Tax Regulations provide that all sales are presumed taxable until the contrary is
proven.
First, the video taping of the town board meeting and the subsequent sale of a copy of the
video tape to a New York State or local governmental entity is an exempt transaction, provided
Petitioner receives a purchase order or other appropriate documentation within ninety days of the
date of sale, from the governmental entity. (See Section ll16(a)(1) of the Tax Law and Section
529.2(b) of the Sales and Use Tax Regulations.)
Second, the video taping of a religious service for a church which qualifies as an exempt
organization under Section 1116(a)(4) of the Tax Law, and the subsequent sale of a copy of the tape
to the church is an exempt transaction, provided Petitioner receives an exempt organization
certification from the church within ninety days of the date of the sale of the tape. If additional copies
of the tape are sold by Petitioner to members of the church for their personal use, rather than to the
church, such sales of the video tapes are subject to the sales tax under Section l105(a) of Tax Law
when delivery occurs in New York. (See Section 1116(a)(4) of the Tax Law and Section 529.7(b)
and (h) of the Sales and Use Tax Regulations)
Finally, when Petitioner videotapes a wedding ceremony and then sells copies of the tape to
the married couple, Petitioner is making a sale of tangible personal property that is subject to the
sales tax when delivery occurs in New York. (See Matter of Video Memories Associates, Ltd.. and
Michael Marano. As Officer, Dec Tax App Trib, March 14, 1996, TSB-D-96(16)S.)

DATED: December 27, 1996

/s/
JOHN W. BARTLETT
Deputy Director
Technical Services Bureau

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