New York Advisory Opinion TSB-A-96(30)S: Is applying a slip-resistant chemical treatment to tile, terrazzo, or concrete floors -- often done for ADA compliance -- subject to sales tax, and does it matter whether the floor is brand new or already existing?

Plain-English summary

FST Services treats new and existing hard mineral floors (ceramic, quarry tile, concrete, terrazzo, and similar) with a chemical process -- cleaning and degreasing the floor, applying the chemical by spray or mop, then applying a neutralizer -- that increases the floor's static coefficient of friction by up to 60%, making it slip resistant for up to five years and helping businesses comply with the Americans with Disabilities Act's slip-and-fall protection requirements. Except when wet (when a faint tread-like etching becomes visible), the treated floor looks unchanged, and the treatment cannot be removed. FST asked whether its service is subject to sales and use tax.

The Department drew a line based entirely on whether the floor is new or existing. When the treatment is applied to a BRAND-NEW floor as part of installing that floor, it's treated as part of the installation of the new floor itself -- and since installing a new floor is a capital improvement to real property (exempt under Tax Law §§ 1105(c)(5) and 20 NYCRR 541.1(c)), the treatment charge riding along with that new installation is also exempt. But applying the same chemical treatment to an EXISTING floor -- one that's already installed and in use -- doesn't create a new capital improvement; it's instead maintaining, servicing, or repairing real property (keeping or restoring it to a condition of safety), which is taxable under Tax Law § 1105(c)(5) and 20 NYCRR 541.1(d), regardless of how permanent and irremovable the chemical treatment itself is. The Department also confirmed the treatment is applied to floors themselves, not to a removable "floor covering" like carpet or vinyl tile under the separate floor-covering rule in § 1101(b)(9)(iii) -- though it noted that same new-vs-existing distinction would apply to a floor covering too, if that were the surface being treated.

What this means for you

Flooring and surface-treatment contractors

Whether your slip-resistant (or similar permanent) floor treatment is taxable turns on timing, not on how permanent or irreversible the chemical process itself is: bundled with a brand-new floor's installation, it's exempt as part of that capital improvement; applied later to an already-installed floor, it's a taxable maintenance/repair service. Bill and document accordingly, and keep records showing whether a given job accompanied new floor installation or serviced an existing floor.

Businesses seeking ADA slip-resistance compliance

If you're installing a brand-new tile, terrazzo, or concrete floor anyway, having the anti-slip treatment applied as part of that same installation avoids sales tax on the treatment charge -- treating an already-existing floor later will cost sales tax on top of the treatment fee.

Common questions

Q: Why does the same permanent, irreversible treatment get taxed differently depending on timing?
A: New York's capital-improvement exemption turns on whether work creates a lasting ADDITION to real property (exempt) versus maintains/restores existing real property to a condition of safety or fitness (taxable) -- installing a brand-new floor is the former, while treating an already-existing floor is the latter, even if the specific chemical process used is identical either way.

Q: Does this analysis change if the treatment is applied to carpet or vinyl tile instead of a hard floor?
A: The opinion notes that floor coverings like carpet, linoleum, or vinyl tile have their own capital-improvement rule (only the INITIAL installation in new construction counts as a capital improvement) -- so the same new-vs-existing distinction applies, though FST's treatment here was on hard mineral floors, not removable floor coverings.

Q: Can another company applying a similar treatment rely on this exact result?
A: No. This advisory opinion binds the Department only as to FST Services and the specific process described; another contractor should confirm its own process and timing (new floor vs. existing floor) match this fact pattern before assuming the same tax treatment.

Citations and references

Statutes and regulations:

• Tax Law § 1101(b)(9) (definition of capital improvement; floor covering rule)
• Tax Law § 1105(c)(3), (c)(3)(iii), (c)(5) (installation/maintenance/repair service tax and capital improvement exception)
• 20 NYCRR 541.1(c) (capital improvement receipts not taxable)
• 20 NYCRR 541.1(d) (repair/maintenance receipts taxable)
• 20 NYCRR 541.2(1) (maintaining/servicing/repairing defined)

Prior rulings and cases referenced:

• TSB-M-89(12)S

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_30s.pdf

Original ruling text

New York State Department of Taxation and Finance
TSB-A-96 (30)S
Sales Tax
May 10, 1996

Taxpayer Services Division
Technical Services Bureau

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO.S951219C

On December 19, 1995 the Department of Taxation and Finance received a Petition for
Advisory Opinion from FST Services, 24 Dorsetwood Drive, Rochester, NY 14612.
The issue raised by Petitioner, FST Services, is whether the service of applying a chemical
treatment to new and existing tile floors which makes the tile slip resistant is subject to State and
local sales and use taxes.
Petitioner submits the following facts as the basis for this Advisory Opinion.
Petitioner provides a treatment to new and existing tile floors which, when applied, increases
the static coefficient of friction of the floor and ground surfaces up to 60%. This treatment is only
applied to hard mineral surfaces (ceramic, quarry tile, concrete, terrazzo, etc.). This treatment
represents a substantial savings for businesses and municipalities in their efforts to comply with the
Americans With Disabilities Act. The Americans With Disabilities Act of 1990 mandates that all
companies and organizations take action to provide "slip and fall" protection on hard surfaces.
The process begins by thoroughly cleaning and degreasing the floor to be treated with the
chemical. Next, depending on the area to treated, the chemical treatment is either sprayed on or
applied by mop. Then a neutralizer is applied over the treated floor.
Except when wet, the floor shows no visible sign of being treated. When wet the floor seems
to be etched with a tread-like pattern. The chemical treatment makes the tile slip resistant for up to
five years and cannot be removed.
Section l101(b)(9) of the Tax Law provides in part:
(9) Capital improvement.

(i) An addition or alteration to real property which:

(A) Substantially adds to the value of the real property, or appreciably prolongs
the useful life of the real property; and
(B) Becomes part of the real property or is permanently affixed to the real property
so that removal would cause material damage to the property or article itself; and
(C) Is intended to become a permanent installation.
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*

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(iii) Notwithstanding the provisions of subparagraph (i) of this paragraph: (A) Floor
covering, such as carpet, carpet padding, linoleum and vinyl roll flooring, carpet tile,
linoleum tile and vinyl tile, installed as the initial finished floor covering in new construction
or a new addition to or total reconstruction of existing construction shall constitute an
addition or capital improvement to real property, property or land; and
(B) Floor covering, such as carpet, carpet padding, linoleum and vinyl roll flooring,
carpet tile, linoleum tile and vinyl tile, installed other than as described in clause (A) of this
subparagraph shall not constitute an addition or capital improvement to real property,
property or land.
Section 1105 of the Tax Law imposes sales tax upon:
(a) The receipts from every retail sale of tangible personal property, except as otherwise
provided in this article.
*

*

*

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

*

*

(3) Installing tangible personal property, excluding a mobile home, or maintaining,
servicing or repairing tangible personal property, including a mobile home, not held for sale
in the regular course of business, whether or not the services are performed directly or by
means of coin-operated equipment or by any other means, and whether or not any tangible
personal property is transferred in conjunction therewith, except:
*

*

*

(iii) for installing property which, when installed, will constitute 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 as such term capital improvement is defined
in paragraph nine of subdivision (b) of section eleven hundred one of this chapter.
*

*

*

(5) Maintaining, servicing or repairing real property, property or land, as such terms are
defined in the real property tax law, whether the services are performed in or outside of a
building, as distinguished from adding to or improving such real property, property or land,
by a capital

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improvement as such term capital improvement is defined in paragraph nine of subdivision
(b) of section eleven hundred one of this chapter, but excluding services rendered by an
individual who is not in a regular trade or business offering his services to the public.
Section 541.1(c) of the Sales and Use Tax Regulations provides that "[r]eceipts from the
performance of a capital improvement to real property by a contractor are not subject to the sales
tax."
Section 541.1(d) of the Sales and Use Tax Regulations provides that "[r]eceipts from the
services of repairing, maintaining or servicing of real property . . . and tangible personal property,
and the receipts from the installation of tangible personal property that remains tangible personal
property are subject to the New York State and local sales tax unless otherwise exempt."
Section 541.2(1) of the Sales and Use Tax Regulations provides as follows:
(1) Maintaining, servicing, or repairing are terms which are used to cover all activities that
relate to keeping real or personal property in a condition of fitness, efficiency, readiness or
safety. or restoring it to such condition, Among the services included are services on a
building itself such as painting; services to the grounds, such as lawn services, tree removal
and trimming; trash and garbage removal; sewage service and snow removal. (emphasis
added)
Pursuant to Section 1105(c)(5) of the Tax Law and Section 541.1(c) of the Sales and Use Tax
Regulations, a sales tax is not imposed on the charge for adding to or improving real property,
property or land by a capital improvement. Section 1105(c)(5) of the Tax Law imposes sales tax,
however, on the charge for maintaining, servicing or repairing real property to keep it in a condition
of fitness, efficiency, readiness or safety, or restoring it to such condition. In this case, Petitioner
provides a treatment to new and existing tile floors (ceramic, quarry tile, concrete, terrazzo, etc.)
which, when applied, makes the tile slip resistant for up to five years. It appears that Petitioner's
service is performed on floors, not on floor coverings within the meaning of Section 1101(b)(9)(iii)
of the Tax Law. See TSB-M-89(12)S.
The initial application of the chemical treatment to a new floor in conjunction with the
installation of the new floor is considered part of the installation of the new floor. Since the
installation of the floor results in a capital improvement and is not taxable, the receipts from
application of the chemical treatment to the new floor will also not be subject to sales and use taxes.
It is also noted that if the chemical treatment were applied to a floor covering, the receipts would be
exempt if in connection with the initial installation of the floor covering as described in Section
ll01(b)(9)(iii)(A) of the Tax Law. However, application of the chemical treatment to an existing

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floor or floor covering constitutes the maintaining, servicing and repairing of real property and is not
a capital improvement as defined in Section 1101 (b)(9) of the Tax Law. Therefore, the charge for
this service is subject to sales and use taxes.

DATED: May 10, 1996

/s/
Doris S. Bauman
Director
Technical Services Bureau

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