Is a company taxable when it obtains copies of public records like deeds and mortgages from a county clerk and furnishes them to an attorney?

Plain-English summary

A law firm asked whether the receipts from obtaining and furnishing copies of public records — like a deed or mortgage recorded with a county clerk — are subject to sales tax as an information service. In the transaction described, a bank or lender directs its attorney to get a copy of a customer's first mortgage (and maybe the deed) in connection with a second-mortgage application. The attorney has an abstract or title company advance the clerk's registry fee, physically obtain the copy, and forward it with a separately stated statement; the attorney then bills the lender for professional services plus the separately stated disbursement.

The Department's holdings:

• The county clerk's sale of copies is exempt. A county clerk's sale of certified or uncertified copies of mortgage instruments is exempt under § 1116(a)(1) (New York State and its subdivisions as vendor). (Allstate Insurance Co. v. State Tax Commission.)
• The abstract company's furnishing of copies is a taxable information service. Furnishing copies of county-clerk records is the furnishing of an information service under § 1105(c)(1), not a delivery service — even though the information comes from a single source (Allstate / Hooper Holmes). Public records to which there is unlimited public access are not the "uniquely personal" information covered by the personal/individual exclusion.
• "Representative capacity" is a fact question with strict conditions. § 1105(c)(1) excludes persons acting in a representative capacity, but merely saying so is not enough. To qualify, the abstract company must clearly disclose the attorney's name to the county clerk, obtain and retain written evidence of the representative relationship before the acquisition, bill the attorney an amount (apart from its service fee) exactly equal to what it paid the clerk, and not use the information for its own purposes.
• Tax is on the entire charge — no deduction for the registry fee. "Receipts" allow no deduction for expenses (§ 1101(b)(3)). When required to collect, the abstract company must charge tax on the whole amount billed to the attorney; it cannot subtract the registry fee it paid the clerk. The § 1116(a)(1) exemption applies only to the clerk's sale, not to later sales by non-exempt entities.
• The attorney's services are outside the sales tax. An attorney's professional services are not within the scope of the sales tax, so the attorney's fees and the disbursements it bills the lender are not taxable.

What this means for you

Pulling a public record and handing it over is "information," not "delivery." If your business obtains records from a government office and furnishes them to clients, New York generally treats that as a taxable information service — the single public source does not make it a tax-free courier service.

The government exemption does not travel downstream. The county clerk's sale is exempt, but that exemption stops at the clerk. A private company that re-furnishes the same copies is taxable on its full charge, including the reimbursed government fee.

"Acting as a representative" has to be built into how you operate. To rely on the representative-capacity exclusion, disclose your principal to the government office, document the relationship in advance, pass through the government fee dollar-for-dollar, and don't reuse the information — a label after the fact will not do.

Common questions

Q: We retrieve deed and mortgage copies from the county clerk for lenders and attorneys. Is our charge taxable?
A: Generally yes. Furnishing copies of public records is a taxable information service under § 1105(c)(1), not an exempt delivery service, even though the records come from a single government source.

Q: Can we at least leave the county registry fee out of the taxable amount?
A: No. Receipts allow no deduction for expenses, so tax applies to the entire amount you bill — including the reimbursed registry fee — unless the whole transaction qualifies for an exclusion.

Q: How do we act in a nontaxable "representative capacity" for the attorney?
A: Disclose the attorney's name to the county clerk, obtain and keep written proof of the representative relationship before you acquire the copy, bill the attorney exactly what you paid the clerk (apart from your service fee), and don't use the information for your own purposes.

Citations and references

Statutes:

• Tax Law § 1105(c)(1) — taxes the furnishing of information; excludes uniquely personal/individual information and persons acting in a representative capacity
• Tax Law § 1116(a)(1) — exempts New York State and its subdivisions as vendor (the county clerk's sale)
• Tax Law § 1101(b)(3) — defines "receipts"; no deduction for expenses

Case cited:

• Allstate Insurance Company v. State Tax Commission, 115 A.D.2d 831 (1985) — furnishing DMV records from a single source is a taxable information service; the personal/individual exclusion covers only uniquely personal information, not public records

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_1987.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a87_2s.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-87(2)S
Sales Tax
December 15, 1986

STATE OF NEW YORK
STATE TAX COMMISSION
ADVISORY OPINION

PETITION NO. S860908B

On September 8, 1986, a Petition for Advisory Opinion was received from McCarthy &
Evanick, 60 South Swan Street, Albany, New York 12210.
The issue is whether the receipts, in whole or in part, from obtaining and furnishing to a bank
or other commercial lender, of a copy of a public record (such as a deed or mortgage) recorded in
the office of a county clerk are subject to sales tax under 1105(c)(1) of the Tax Law.
Petitioner describes the flow of the transaction as follows:
A bank or other commercial lender directs its attorney to obtain for it a copy (certified or
uncertified) of a first mortgage instrument given by a potential customer for a second mortgage loan
in connection with consideration of the mortgage application. The lender may request a copy of the
customer's deed as well. The lender understands that it will be billed by the attorney for his fee and
his disbursements in obtaining the copies from the county clerk's office in the county where the
premises are located.
The attorney directs an abstract company or a title insurance company to advance the registry
fee to the county clerk for the copy and to physically obtain the copy or copies and forward them to
him with its statement for services and disbursements. The abstract company advances the registry
fee for the copy to the county clerk and forwards the copy to the attorney with its statement for
services, including the disbursed registry fee separately stated. The attorney, in turn, forwards the
copy to the lender and send the latter a statement for professional services which include the
attorney's fee and, separately stated, the disbursement to the abstract company for its services and
for the registry fee for the copy.
The attorney retains a copy of the document for his files and may review or otherwise use it
in the future if the lender requests his professional advice or assistance in closing the potential
second mortgage loan.
Petitioner asserts that:
I.

The receipts from the obtaining and furnishing of public documents by the abstract
company are not subject to sales tax because the abstract company is merely
providing a delivery service or, in the alternative, if the service is deemed to be an
information service, that the abstract company is acting in a representative capacity
for the attorney.

II.

The receipts from the obtaining and furnishing of public documents by the attorney
are not subject to tax for the same reasons as stated in number "I".

RODERICK G. W. CHU, COMMISSIONER
GABRIEL B. DiCERBO, DEPUTY COMMISSIONER
FRANK J. PUCCIA, DIRECTOR
TP-8 (3/83)

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TSB-A-87(2)S
Sales Tax
December 15, 1986
III.

Even if the service provided by the abstract company to the attorney is a taxable
information service, the tax should be calculated on the abstract company's fee alone
and not on the registry fee paid to the county clerk since the attorney could have
purchased the document directly from the county clerk without paying a sales tax.

Section 1105(c)(1) of the Tax Law imposes a tax on "The furnishing of information by
printed, mimeographed or multigraphed matter or by duplicating written or printed matter in any
other manner, including the services of collecting, compiling or analyzing information of any kind
or nature...and furnishing reports thereof to other persons, but excluding the furnishing of
information which is personal or individual in nature and which is not or may not be substantially
incorporated in reports furnished to other persons and excluding the services of...persons acting in
a representative capacity...."
Section 1116(a)(1) of the Tax Law exempts from the sales tax "The state of New York, or
any of its agencies, instrumentalities...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".
In Allstate Insurance Company v. State Tax Commission, 115 AD2d 831 (1985), the court
held that the furnishing of New York State Department of Motor Vehicle records by Hooper Holmes,
Inc. to Allstate was the furnishing of an information service even if the information was collected
from a single source. Additionally, the court held that the exclusion from tax for information which
is personal or individual in nature refers to uniquely personal information and does not apply to
information filed with a governmental agency as a public record to which there is unlimited public
access.
The sale by a county clerk of certified or uncertified copies of mortgage instruments is
exempt from tax pursuant to section 1116(a)(1) of the Tax Law. See Allstate Insurance Company
v. State Tax Commission, supra.
The furnishing of copies of records contained in a county clerk's office by the abstract
company is the furnishing of an information service and is not a delivery service even though the
information is collected from a single source. Allstate Insurance Company, supra. Such information
is not the type of uniquely personal information referred to in the exemption for personal or
individual information.
Accordingly, the sale of this information service by an abstract company to an attorney is
subject to tax unless otherwise exempt.
Whether an abstract company is acting in a representative capacity for an attorney is a
question of fact which must be resolved based upon the circumstances of each case. However, it
should be noted that it is not sufficient that an abstract company merely states that it is acting in a
representative capacity. To be deemed a representative of an attorney, the abstract company must
clearly disclose to the county clerk the name of the attorney for whom the abstract company is acting

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TSB-A-87(2)S
Sales Tax
December 15, 1986
as a representative; the abstract company must obtain, prior to the acquisition, and retain written
evidence of its representative status with the attorney. The amount billed to the attorney, exclusive
of its service fee, must be the same as the amount paid to the county clerk. Additionally, the abstract
company may not use the information service for its own purposes.
Section 1101(b)(3) of the Tax Law defines "receipts" for purposes of determining the amount
of taxable sales as "[t]he amount of the sales price of any property and the charge for any service
taxable under this article...without any deduction for expenses...."
Accordingly, when an abstract company is required to collect sales tax, it must collect sales
tax on the entire amount charged to the attorney. It may not reduce its taxable receipts by the amount
it paid as a fee to the county clerk. Such fee is deemed an expense for which no deduction is
allowed. Furthermore, the exemption provided by section 1116(a)(1) of the Tax Law applies only
to sales of such services by the county clerk. It does not apply to subsequent sales made by non­
exempt entities.
Finally, it is noted that the services of an attorney are not within the scope of the sales tax.
Accordingly, fees charged by the attorney for professional services and for disbursements to the
abstract company are not subject to sales tax.

DATED: December 15, 1986

s/FRANK J. PUCCIA
Director
Technical Services Bureau

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