Section 1110. Imposition of compensating use tax

(a) Except to the extent
  that property or services have already been or will be  subject  to  the
  sales  tax under this article, there is hereby imposed on every person a
  use tax for the use within this state on and after June first,  nineteen
  hundred seventy-one except as otherwise exempted under this article, (A)
  of  any  tangible  personal  property  purchased  at  retail, (B) of any
  tangible personal property (other than computer  software  used  by  the
  author  or  other  creator)  manufactured, processed or assembled by the
  user, (i) if items of the same kind of tangible  personal  property  are
  offered  for  sale  by  him in the regular course of business or (ii) if
  items are used as such or incorporated into  a  structure,  building  or
  real  property  by  a contractor, subcontractor or repairman in erecting
  structures or  buildings,  or  building  on,  or  otherwise  adding  to,
  altering,  improving, maintaining, servicing or repairing real property,
  property or land, as the terms  real  property,  property  or  land  are
  defined  in the real property tax law, if items of the same kind are not
  offered for sale as such by such contractor, subcontractor or  repairman
  or  other  user  in  the  regular  course of business, (C) of any of the
  services described in paragraphs (1), (7) and (8) of subdivision (c)  of
  section  eleven  hundred five of this part, (D) of any tangible personal
  property, however acquired, where not acquired for purposes  of  resale,
  upon  which any of the services described in paragraphs (2), (3) and (7)
  of subdivision (c) of section eleven hundred five of this part have been
  performed,  (E)  of  any  telephone  answering  service   described   in
  subdivision  (b) of section eleven hundred five of this part, (F) of any
  computer software written or otherwise created by the user if  the  user
  offers  software  of  a  similar kind for sale as such or as a component
  part of other property in the regular course of  business,  (G)  of  any
  prepaid  telephone  calling  service,  and (H) of any gas or electricity
  described in subdivision (b) of section  eleven  hundred  five  of  this
  part.
    (b) For purposes of clause (A) of subdivision (a) of this section, the
  tax  shall  be at the rate of four percent of the consideration given or
  contracted to be given for  such  property,  or  for  the  use  of  such
  property, including any charges for shipping or delivery as described in
  paragraph  three  of  subdivision (b) of section eleven hundred one, but
  excluding any credit for tangible personal  property  accepted  in  part
  payment and intended for resale.
    (c)  For purposes of subclause (i) of clause (B) of subdivision (a) of
  this section, the tax shall be at the rate of four percent of the  price
  at  which  items  of  the  same  kind  of tangible personal property are
  offered for sale by the user, and the mere storage,  keeping,  retention
  or  withdrawal  from storage of tangible personal property by the person
  who manufactured, processed or assembled  such  property  shall  not  be
  deemed  a  taxable  use by him; provided, however, that if the user uses
  such an item itself on its own premises (not including making a gift  of
  such  tangible  personal  property), solely in the conduct of the user's
  own business operations, and the  item  retains  its  characteristic  as
  tangible  personal  property when so used, the tax shall be at the rate,
  and on the consideration, described in subdivision (d) of this section.
    (d) For purposes of subclause (ii) of clause (B) of subdivision (a) of
  this section, the tax shall be at  the  rate  of  four  percent  of  the
  consideration  given or contracted to be given for the tangible personal
  property manufactured, processed or assembled into the tangible personal
  property the use of which is subject to tax, including any  charges  for
  shipping  or delivery as described in paragraph three of subdivision (b)
  of section eleven hundred one.

    (e) Notwithstanding the foregoing, provisions  of  this  section,  for
  purposes  of  clause (B) of subdivision (a) of this section, there shall
  be no tax on any portion of such price which represents the value  added
  by  the  user  to  tangible  personal  property  which he fabricates and
  installs  to the specifications of an addition or capital improvement to
  real property, property or land, as the terms real property, property or
  land are defined in the real  property  tax  law,  over  and  above  the
  prevailing  normal  purchase  price  prior  to  such fabrication of such
  tangible personal property which a manufacturer, producer  or  assembler
  would  charge  an  unrelated  contractor  who  similarly  fabricated and
  installed such tangible personal property to the  specifications  of  an
  addition or capital improvement to such real property, property or land.
    (f)  For  purposes  of clauses (C), (D), and (E) of subdivision (a) of
  this section, the tax shall be at  the  rate  of  four  percent  of  the
  consideration given or contracted to be given for the service, including
  the  consideration  for  any  tangible  personal property transferred in
  conjunction with the performance of the service and also  including  any
  charges  for shipping and delivery of the property so transferred and of
  the tangible personal property upon which the service was  performed  as
  such  charges  are  described  in  paragraph three of subdivision (b) of
  section eleven hundred one.
    (g) For purposes of clause (F) of subdivision (a) of this section, the
  tax shall be at the rate of four percent of the consideration  given  or
  contracted  to  be  given  for  the  tangible  personal  property  which
  constitutes  the  blank  medium,  such  as  disks  or  tapes,  used   in
  conjunction  with the software, or for the use of such property, and the
  mere storage, keeping, retention or withdrawal from storage of  computer
  software  described  in  such  clause (F) by its author or other creator
  shall not be deemed a taxable use by such person.
    (h) For purposes of clause (G) of subdivision (a) of this section, the
  tax shall be at the rate of four percent of the consideration  given  or
  contracted  to be given for the service, including the consideration for
  any tangible personal  property  transferred  in  conjunction  with  the
  service  and also including any charges for shipping and delivery of the
  property so transferred as such charges are described in paragraph three
  of subdivision (b) of section eleven hundred one; provided that, if  the
  user  offers  like  services for sale in the regular course of business,
  the tax shall be at the rate of four percent of the price at  which  the
  user offers such like services for sale.
    (i) For purposes of clause (H) of subdivision (a) of this section, the
  tax  shall  be at the rate of four percent of the consideration given or
  contracted to be given for, or for the use of, the gas  or  electricity,
  including   the   consideration   for  any  tangible  personal  property
  transferred in conjunction with the performance thereof,  and  including
  any  charges  described in paragraph three of subdivision (b) of section
  eleven hundred one of this article.