1.Are the roaming services excluded from New York State and local sales taxes and the telecommunications excise tax under the federal Mobile Telecommunications Sourcing Act on the ground that they are provided to a customer with a place of primary use outside New York State?

Alternatively, are the roaming services provided to customers of foreign mobile telecommunications carriers excluded from New York and local sales taxes and the telecommunications excise tax as sales for resale?

Sales of roaming services are not subject to State and local sales taxes or the telecommunications excise tax because they are provided to mobile telecommunications customers with places of primary use outside. Tax Law section 1111(l), which incorporates the provisions of the federal Mobile Telecommunications Sourcing Act (4 USC § 116, et seq.) for purposes of and local sales taxes, provides:

• Any charge for a service or property billed by or for a mobile telecommunications customer’s home service provider shall be deemed to be provided by such mobile telecommunications customer’s home service provider.
• (Charges for mobile telecommunications service that are provided or deemed to be provided by a mobile telecommunications customer’s home service provider shall be sourced to the taxing jurisdiction where the mobile telecommunications customer’s place of primary use is located, regardless of where the mobile telecommunications service originates, terminates or passes through.

A "home service provider"; is a facilities-based carrier or reseller, with which the mobile telecommunications customer contracts for the provision of mobile telecommunications service.

Mobile telecommunications customer” means either:

(A) a person or entity that contracts with a home service provider for mobile telecommunications services; or (B) if the end user of mobile telecommunications services is not the contracting party, the end user of the mobile telecommunications service, but this clause (B) applies only for the purpose of determining the place of primary use. “Mobile telecommunications customer” does not include either (a) a reseller of mobile telecommunications service; or (b) a serving carrier under an arrangement to serve a mobile telecommunications customer outside the home service provider’s licensed service area.

[T]he street address representative of where a mobile telecommunications customer’s use of the mobile telecommunication service primarily occurs, and must be

(i) the residential street address or the primary business street address of the mobile telecommunications customer and

(ii) within the licensed service area of the home service provider.

• (A) Any charge for a service or property billed by or for a mobile telecommunications customer’s home service provider shall be deemed to be provided by such mobile telecommunications customer’s home service provider.

(B) Charges for mobile telecommunications service that are provided or deemed to be provided by a mobile telecommunications customer’s home service provider shall be sourced to the taxing jurisdiction where the mobile telecommunications customer’s place of primary use is located, regardless of where the mobile telecommunications service originates, terminates or passes through.

Tax Law section 186-e.1(a) contains identical provisions covering the telecommunications excise tax.

A “home service provider” is a facilities-based carrier or reseller, with which the mobile telecommunications customer contracts for the provision of mobile telecommunications service.  

"The source of this document is NYS Department of Taxation and Finance and was issued on June 6th 2010

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