Is a fixed fee that an antiques show promoter charges dealers and vendors for temporary booth space a nontaxable real-property rental, or a taxable sale of tangible personal property or services?

Plain-English summary

An out-of-state antiques show manager/promoter (the "Manager" in this ruling) runs a two-week antiques show in New York each year, either renting/licensing space in a public or private building or leasing land for a temporary structure. To prepare the site, Manager hires construction contractors to build temporary booths — walls, ceilings, and finished settings — and installs basic electricity plus aisle lighting. Manager doesn't supply any furniture, displays, or other equipment inside the booths; dealers and vendors can separately contract with the contractors themselves for extra decorating or in-booth electrical work. Manager charges each dealer/vendor a fixed fee, based on booth size and location, for the two-week use of the space.

The core question — is the booth fee itself taxable? — comes out clean: it's not. Fees for the use of real property (renting or licensing space, even temporary trade-show space) fall outside New York's sales and use tax entirely, following an established line of Department opinions on trade-show and convention-space fees.

But the ruling doesn't stop there, and this is the part worth noting: Manager is the one who buys the construction services, materials, and electricity used to build and light the temporary booths. Because Manager isn't reselling those booths and lighting to the dealers (it's consuming them itself to create and provide the real-property space it's licensing out), Manager can't use a resale certificate to avoid tax on those purchases. Assuming the temporary booths aren't capital improvements (which fits a two-week teardown structure), Manager must pay sales tax on the contractors' construction/installation services and on the electricity, just like any other end consumer. Separately, if dealers or vendors buy extra services (decorating, additional electrical hookups) directly from the contractors, those are independent transactions between the contractor and the dealer/vendor, and are taxable on their own.

What this means for you

Trade show, antiques fair, and event promoters

Your booth-rental fee to exhibitors is a nontaxable real-property charge — but don't assume that shields your own purchases. If you're the one hiring contractors to build out temporary booths and providing utilities, you're the consumer of those construction services and materials, and you owe sales tax on them just like any other buyer.

Exhibitors and vendors renting show booths

If you buy extra services (decorating, electrical work) directly from the show's contractors rather than through the promoter, that's a separate taxable transaction between you and the contractor, distinct from your booth rental fee to the promoter.

Accountants and tax professionals

This is a good illustration of a recurring pattern: an exempt real-property fee at the top of the transaction chain doesn't exempt the taxable purchases that go into creating that real-property space. Always trace who's buying the underlying construction/utility inputs and whether they qualify as the "consumer" for sales tax purposes.

Common questions

Q: Is trade show or antiques fair booth rental taxable in New York?
A: No — a fee for the use of real property, including temporary trade-show or fair space, is excluded from New York sales and use tax.

Q: If the booth fee is exempt, does the promoter avoid tax on building the booths?
A: No — the promoter is the consumer of the construction services, materials, and electricity used to build and light the booths, and must pay sales tax on those purchases, since it can't resell them to exhibitors (it's licensing real property, not selling the booths).

Q: What if a vendor pays the contractor directly for extra decorating?
A: That's a separate transaction between the vendor and the contractor, independently subject to sales tax, regardless of how the underlying booth-rental fee is treated.

Citations and references

Statutes and regulations:

• Tax Law § 1101(b)(3) (definition of "receipt"); § 1101(b)(5) (definition of "sale, selling or purchase")
• Tax Law § 1105(a) (retail sales tax); § 1105(b)(1)(A) (gas/electricity tax); § 1105(c)(3) (installation/maintenance/repair services tax)
• 20 NYCRR § 526.5(a), (e) (definition of receipt; nondeductibility of expenses)

Prior rulings referenced:

• Five Star Promotions, TSB-A-97(7)S
• New York Convention Center Operating Corp., TSB-A-97(38)S

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_2002.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a02_39s.pdf

Original ruling text

New York State Department of Taxation and Finance

Office of Tax Policy Analysis
Technical Services Division

TSB-A-02(39)S
Sales Tax
July 25, 2002

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. S020111B

On January 11, 2002, the Department of Taxation and Finance received a Petition for
Advisory Opinion from Arthur C. E. Burkard, Esq., 13 Wilmont Avenue, White Plains, New York
10605.
The issue raised by Petitioner, Arthur C. E. Burkard, Esq., is whether, under the
circumstances presented, booth space fees charged by show managers to dealers and vendors at
antique forums and fairs are rentals or licenses to use real property which are excluded from tax
under Articles 28 and 29 of the Tax Law.
Petitioner submitted the following facts as the basis for this Advisory Opinion.
Petitioner’s client (Manager) is an antiques show manager/promoter based outside of
New York State. For a two-week period each year, Manager enters into a rental or license
agreement to utilize space at either a public or private building, or alternatively enters into a short­
term lease for the use of land upon which a special purpose temporary structure will be installed in
New York.
To prepare the location for the antiques show, Manager retains the services of construction
contractors to build temporary booths in either the public or private building or the temporary
structure. The booth space consists of temporary walls, ceilings and settings that are painted or
similarly finished. Manager provides the booths with access to basic electricity and installs
temporary lighting in the aisle ways between the booths. Dealers and vendors may contract directly
with the contractors for electrical service in the booth or for additional decorating or modifications
to the booth itself. Manager does not furnish the booths with equipment, furniture, displays or other
tangible personal property. The booths are dismantled at the conclusion of the antiques show.
Manager charges antique dealers and vendors a fixed fee, based upon booth dimensions and
location, for the use of the booths for the two-week period.
Applicable Law and Regulations
Section ll01(b) of the Tax Law provides, in part:
When used in this article for the purposes of the taxes imposed by
subdivisions (a), (b), (c) and (d) of section eleven hundred five and by section eleven
hundred ten, the following terms shall mean:
*

*

*

-2­
TSB-A-02(39)S
Sales Tax
July 25, 2002

(3) Receipt. The amount of the sale price of any property and the charge for
any service taxable under this article, including gas and gas service and electricity
and electric service of whatever nature, valued in money, whether received in money
or otherwise . . . without any deduction for expenses . . .
*

*

*

(5) Sale, selling or purchase. Any transfer of title or possession or both,
exchange or barter, rental, lease or license to use or consume . . . for a consideration
....
Section 1105 of the Tax Law imposes sales tax, in part, upon:
(a) The receipts from every retail sale of tangible personal property, except
as otherwise provided in this article.
(b) (1) The receipts from every sale, other than sales for resale, of the
following: (A) gas, electricity, refrigeration and steam, and gas, electric,
refrigeration and steam service of whatever nature . . . .
*

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*

(c) The receipts from every sale, except for resale, of the following services:
*

*

*

3) Installing tangible personal property . . . or maintaining, servicing or
repairing tangible personal property . . . not held for sale in the regular course of
business . . . and whether or not any tangible personal property is transferred in
conjunction therewith . . . .
Section 526.5 of the Sales and Use Tax Regulations provides, in part:
(a) Definition. The word receipt means the amount of the sale price of any
property and the charge for any service taxable under articles 28 and 29 of the Tax
Law, valued in money, whether received in money or otherwise. The following
subdivisions of this section discuss elements of a receipt.
*

*

*

-3­
TSB-A-02(39)S
Sales Tax
July 25, 2002

(e) Expenses. All expenses, including telephone and telegraph and other
service charges, incurred by a vendor in making a sale, regardless of their taxable
status and regardless of whether they are billed to a customer are not deductible from
the receipts.
Opinion
Petitioner’s client, Manager, is an antiques show manager/promoter who enters into a rental
or license agreement to utilize real property in New York State for a two-week period each year to
conduct the antiques show. To prepare the location for the antiques show, Manager retains the
services of construction contractors to build temporary booths and settings which consist of
temporary walls, ceilings and settings, and installs temporary lighting in the aisle ways between the
booths. Manager does not furnish the booths with equipment, furniture, displays or any other
tangible personal property. Manager charges antique dealers and vendors a fixed fee, based upon
booth dimensions and location, for the use of the booths for the two-week period.
The fee charged by Manager to use the space to display tangible personal property for sale
is a fee for the use of real property which is not subject to State and local sales and use taxes. See
Five Star Promotions, Adv Op Comm T&F, February 6, 1997, TSB-A-97(7)S. Manager is not
reselling the booths and lighting but is consuming them in providing its license to use the real
property. See New York Convention Center Operating Corp., Adv Op Comm T&F, May 21, 1997,
TSB-A-97(38)S. As the consumer of the property and services supplied by the contractors, Manager
is not permitted to issue Form ST-120, Resale Certificate, and must pay the applicable sales tax on
these purchases. Therefore, since it appears from the facts submitted that the booths are not capital
improvements, sales of tangible personal property to, and the service of installing such property for,
Manager are subject to tax, as are the sales of electricity or electrical service. See Sections 1105(a),
1105(c)(3) and 1105(b) of the Tax Law. Contractor services provided directly to dealers or vendors
are separate transactions from the booth rental by Manager and are subject to sales tax.

DATED: July 25, 2002

NOTE:

/s/
Jonathan Pessen
Tax Regulations Specialist IV
Technical Services Division

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