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2006 New York Code - General City Model 772/66
General City Model 772/66
Section 1. Notwithstanding any other provision of law to the
contrary, any city having a population of one million or more, acting
through its local legislative body, is hereby authorized and empowered
to adopt and amend local laws imposing for any such city taxes on
general corporations, financial corporations and transportation
corporations at the rates provided herein, or if alternative rates are
provided, then, in such event, at either of such rates. The terms of
such local law or local laws shall be, substantially, as follows except
that any such local law may be amended for the purpose of conforming it
with similar provisions of articles 9-A, 27 and 32 (except section 1456
thereof) of the tax law and section 8 of chapter 167 of the laws of 1972
as presently in effect or as they may be amended provided, however, that
the definition set forth in subsection (c) of section 1450 of the tax
law and the deduction set forth in subsection (f) of section 1453 of the
tax law shall be incorporated in any local law imposing a tax such as is
imposed by article 32 of the tax law and provided further, that credits
analogous to the credits provided in paragraphs (b) and (c) of
subdivision 1 of section 4-h of part 2 of this section and subject to
the limitations contained in such part, may be incorporated in any local
law imposing a tax such as is imposed under article 32 of the tax law,
and provided further, that a provision analogous to paragraph 1 of
subsection (b) of section 1455 of the tax law, as such paragraph 1
existed immediately prior to its repeal by section 24 of chapter 298 of
the laws of 1985 (but subject to the amendments contained in paragraph 2
of subdivision (b) of section 11-643.5 of the administrative code of the
city of New York), shall continue to apply to banking corporations
organized under the laws of any country other than the United States and
provided further, however, that in the event that any local law is
adopted imposing a tax such as is imposed by such article 32 of the tax
law, then no tax imposed by such city for any periods for which a tax
such as is imposed by such article 32 is imposed and the rates of tax
under any such local law imposing a tax such as is imposed by such
article 32 shall be, for the basic tax analogous to that fixed by
subsection (a) of section 1455 of the tax law, no greater than nine per
centum, for the alternative minimum tax analogous to that fixed under
paragraph 1 of subsection (b) of such section, as such paragraph 1
existed prior to its repeal by section 24 of chapter 298 of the laws of
1985 (but subject to the amendments contained in paragraph 2 of
subdivision (b) of section 11-643.5 of the administrative code of the
city of New York), no greater than two and six-tenths mills per dollar
of issued capital stock or the excess of average total assets over
average total liabilities apportionable to such city, for the
alternative minimum tax analogous to that fixed under such paragraph 1
as added by section 24 of such chapter, no greater than one-tenth of a
mill, for the alternative minimum tax analogous to that fixed by
paragraph 2 of such subsection, no greater than three percent, and for
the alternative minimum tax analogous to that fixed by paragraph 3 of
such subsection, no greater than one hundred twenty-five dollars and
except that the appendix in such local laws may be amended for the
purpose of conforming it with the United States internal revenue code or
other federal laws relating to taxation as presently in effect or as
they may be amended, and provided further, however, any such local law
imposing a tax such as is imposed by such article 32 may be amended to
conform it with the analogous provisions of subparagraph 11 of paragraph
(a), subparagraph 13 of paragraph (b) and paragraphs (l), (m) and (n) of
subdivision 8 of section 2 of section 1 of this chapter:
CITY BUSINESS TAX
PART I
GENERAL PROVISIONS
Section 1. Definitions.
PART II
GENERAL CORPORATION TAX
Section 2. Definitions.
3. Imposition of tax; exemptions.
4. Computation of tax.
4-a. Credit relating to stock transfer tax.
4-b. Credit relating to certain sales and compensating use
taxes.
4-c. Credit relating to certain expenses involved in the cost
of relocating industrial and commercial employment
opportunities.
(4-d) Credit relating to the annual increase in certain payments
to a landlord by a taxpayer relocating industrial and
commercial employment opportunities.
4-e. Credit relating to certain sales and compensating use
taxes.
4-f. Credit relating to certain sales and compensating use
taxes on electricity used in manufacturing, processing
or assembling.
4-h. Relocation and employment assistance credit.
5. Reports.
6. Payment and lien of tax.
7. Declaration of estimated tax.
8. Payments on account of estimated tax.
9. Collection of taxes.
10. Limitations of time.
PART III
FINANCIAL CORPORATION TAX
SUBPART 1
TAX ON STATE BANKS, TRUST COMPANIES, FINANCIAL
CORPORATIONS AND SAVINGS AND LOAN ASSOCIATIONS
Section 11. Definitions.
*12. Tax based on net income; imposition; minimum tax; new
corporations; dissolution; consolidations; mergers; etc.
13. Years for which imposed.
14. Ascertainment of gain or loss.
15. Exchange of property.
16. Exchange of property when no gain or loss is realized.
17. Inventory.
18. Net income defined.
19. Computation of net income.
20. Gross income defined.
21. Deductions.
22. Items not deductible.
* Does not conform to section heading in text of law.
SUBPART 2
TAX ON NATIONAL BANKING ASSOCIATIONS AND
PRODUCTION CREDIT ASSOCIATIONS
Section 23. Imposition of tax.
24. Years for which imposed.
25. Ascertainment of gain or loss; exchange of property.
26. Inventory.
27. Net income defined; computation.
28. Gross income defined.
29. Deductions.
30. Administration; procedure; provisions of law applicable.
31. Tax on production credit associations.
SUBPART 3
ADMINISTRATION FOR SUBPARTS 1 AND 2
Section 32. Taxpayers' returns.
33. Consolidated returns.
34. Payment of tax.
35. Declaration of estimated tax; payments on account of
estimated tax.
36. Real property taxable.
PART V
TRANSPORTATION CORPORATION TAX
Section 61. Tax on transportation corporations and associations.
62. Additional tax on transportation corporations and
associations.
63. Receivers, etc., conducting corporate business.
64. Service of process; limitations of time.
65. Exemption of Corporations Owned by a Municipality.
66. Reports of Corporations.
67. Payment of tax and penalties.
68. Taxable years to which taxes apply.
69. First reports for nineteen hundred sixty-six.
PART VI
(CORPORATE TAX PROCEDURE AND ADMINISTRATION)
Section 71. Application of part.
72. Notice of Deficiency.
73. Assessment.
74. Limitations on Assessment.
75. Interest on underpayment.
76. Additions to tax and civil penalties.
77. Overpayment.
78. Limitations of credit or refund.
79. Interest on overpayment.
80. Petition to director of finance.
81. Review of director's decision.
82. Mailing rules; holidays.
83. Collection, levy and liens.
84. Transferees.
85. Jeopardy assessment.
86. Criminal penalties.
87. General powers of director of finance.
88. Secrecy required of official; penalty for violation.
89. Disposition of revenues.
90. Inconsistencies with other laws.
91. Effect of invalidity in part.
PART I
GENERAL PROVISIONS
Section 1. Definitions. When used in parts one through six:
1. "Taxpayer" means any corporation subject to tax;
2. "City" or "the city" means the city imposing the tax;
3. "State," "the state" or "this state" means the state of New York;
4. "Tax commission," "department of state," "department of taxation
and finance," "department of public service," and "department of
insurance," refers to agencies and departments of the state;
5. "Commission" means the tax commission of the state;
6. "Tax law," "insurance law," "private housing finance law," "public
health law," "public housing law," "finance law," "general municipal
law," "public service law," "general corporation law," "business
corporation law," "civil practice law and rules," "code of criminal
procedure," and "banking law," refer to laws of the state;
7. "Attorney General," "superintendent of insurance," "commissioner of
taxation and finance," "secretary of state," "commissioner of health,"
and "comptroller," refer to officials of the state;
8. "Director of finance" means the director of finance or other fiscal
officer of the city charged with administration of excise taxes by the
charter of the city or by other provision of law.
9. "Domestic corporation" means a corporation organized under the laws
of the state; and
10. Unless a different meaning is clearly required, any term used in
any title other than parts four and five shall have the same meaning as
when used in a comparable context in the laws of the United States
relating to federal income taxes, and any reference to the laws of the
United States shall mean the provisions of the internal revenue code of
nineteen hundred fifty-four, and amendments thereto, and other
provisions of the laws of the United States relating to federal income
taxes, as the same are included in the title appendix hereinafter set
forth or as included by reference to an appendix of another title
enacted by the same local law. (The quotation of the aforesaid laws of
the United States is intended to make them a part of any appropriate
title and to avoid constitutional uncertainties which might result if
such laws were merely incorporated by reference. The quotation of a
provision of the federal internal revenue code or of any other law of
the United States shall not necessarily mean that it is applicable to or
has relevance to any of the titles.)
11. "Title," when used in any part except parts four or five, means
all parts except parts four or five, and, when used in part four or part
five, means the part in which it is used together with part one;
provided, however, that, whenever it is used in a manner which clearly
shows that it is intended to encompass all parts, it shall be so
construed.
PART II
GENERAL CORPORATION TAX
§ 2. Definitions. When used in this part:
1. "Corporation" includes a joint-stock company or association and any
business conducted by a trustee or trustees wherein interest or
ownership is evidenced by certificate or other written instrument;
2. "Subsidiary" means a corporation of which over fifty per centum of
the number of shares of stock entitling the holders thereof to vote for
the election of directors or trustees is owned by the taxpayer;
3. "Subsidiary capital" means investments in the stock of subsidiaries
and any indebtedness from subsidiaries, whether or not evidenced by
written instrument, on which interest is not claimed and deducted by the
subsidiary for purposes of taxation under this part or part three of
this title, provided, however, that, in the discretion of the director
of finance, there shall be deducted from subsidiary capital any
liabilities payable by their terms on demand or within one year from the
date incurred, other than loans or advances outstanding for more than a
year as of any date during the year covered by the report, which are
attributable to subsidiary capital;
4. "Investment capital" means investments in stocks, bonds and other
securities, corporate and governmental, not held for sale to customers
in the regular course of business, exclusive of subsidiary capital and
stock issued by the taxpayer, provided, however, that, in the discretion
of the director of finance there shall be deducted from investment
capital any liabilities payable by their terms on demand or within one
year from the date incurred, other than loans or advances outstanding
for more than a year as of any date during the year covered by the
report, which are attributable to investment capital;
5. "Investment income" means income, including capital gains in excess
of capital losses, from investment capital, to the extent included in
computing entire net income, less, (a) in the discretion of the director
of finance, any deductions allowable in computing entire net income
which are attributable to investment capital or investment income, and
(b) such portion of any net operating loss deduction allowable in
computing entire net income, as the investment income, before such
deduction, bears to entire net income, before such deduction, provided,
however, that in no case shall investment income exceed entire net
income;
6. "Business capital" means all assets, other than subsidiary capital,
investment capital and stock issued by the taxpayer, less liabilities
not deducted from subsidiary or investment capital which are payable by
their terms on demand or within one year from the date incurred, other
than loans or advances outstanding for more than a year as of any date
during the year covered by the report, except that, subject to the
provisions of subdivision six of section four of this part, cash on hand
and on deposit shall be treated as investment capital or as business
capital as the taxpayer may elect;
7. "Business income" means entire net income minus investment income;
8. "Entire net income" means total net income from all sources which
shall be the same as the taxpayer's entire federal taxable income
computed without regard to any election under subchapter s of chapter
one of the internal revenue code, except as hereinafter provided, and
subject to any modification required by paragraph (d) of subdivision
three of section four of this part.
(a) Entire net income shall not include:
(1) income, gains and losses from subsidiary capital which do not
include the amount of a recovery in respect of any war loss;
(2) fifty per centum of dividends other than from subsidiaries;
(3) bona fide gifts;
(4) income and deductions with respect to amounts received from school
districts and from corporations and associations, organized and operated
exclusively for religious, charitable or educational purposes, no part
of the net earnings of which inures to the benefit of any private
shareholder or individual, for the operation of school buses; and
(5) any refund or credit of a tax imposed under this part, or imposed
by article nine or article nine-A of the tax law, for which tax no
exclusion or deduction was allowed in determining the taxpayer's entire
net income under this part for any prior year;
(6) in the case of a taxpayer who is separately or as a partner of a
partnership doing an insurance business as a member of the New York
insurance exchange described in paragraph (a) of subdivision one of
section four hundred twenty-five-a of the insurance law, any item of
income, gain, loss or deduction of such business which is the taxpayer's
distributive or pro rata share for federal income tax purposes or which
the taxpayer is required to take into account separately for federal
income tax purposes.
(7) for taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code (relating to qualified mass commuting vehicles), any amount
which is included in the taxpayer's federal taxable income solely as a
result of an election made pursuant to the provisions of such paragraph
eight as it was in effect for agreements entered into prior to January
first, nineteen hundred eighty-four;
(8) for taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code (relating to qualified mass commuting vehicles), any amount
which the taxpayer could have excluded from federal taxable income had
it not made the election provided for in such paragraph eight as it was
in effect for agreements entered into prior to January first, nineteen
hundred eighty-four;
(9) the amount deductible pursuant to paragraph (j) of this
subdivision; and
(10) upon the disposition of recovery property to which paragraph (j)
of this subdivision applies, the amount, if any, by which the aggregate
of the amounts described in subparagraph eleven of paragraph (b) of this
subdivision attributable to such property exceeds the aggregate of the
amounts described in paragraph (j) of this subdivision attributable to
such property.
(11) for taxable years ending after September 10, 2001, the amount
deductible pursuant to paragraph (1) of this subdivision.
(b) Entire net income shall be determined without the exclusion,
deduction or credit of:
(1) the amount of any specific exemption or credit allowed in any law
of the United States imposing any tax on or measured by the income of
corporations,
(2) any part of any income from dividends or interest on any kind of
stock, securities or indebtedness, except as provided in clauses one and
two of paragraph (a) hereof,
(3) taxes paid or accrued to the United States on or measured by
profits or income or to the state under article nine or nine-a of the
tax law,
(4) taxes imposed under this part,
(4-a) (A) the entire amount allowable as an exclusion or deduction for
stock transfer taxes imposed by article twelve of the tax law in
determining the entire taxable income which the taxpayer is required to
report to the United States treasury department but only to the extent
that such taxes are incurred and paid in market making transactions and
(B) the amount allowed as an exclusion or deduction for sales and use
taxes imposed by section eleven hundred seven of the tax law in
determining the entire taxable income which the taxpayer is required to
report to the United States treasury department but only such portion of
such exclusion or deduction which is not in excess of the amount of the
credit allowed pursuant to section four-b of this part.
(4-b) the amount allowed as an exclusion or deduction imposed by the
tax law in determining the entire taxable income which the taxpayer is
required to report to the United States treasury department but only
such portion of such exclusion or deduction which is not in excess of
the amount of the credit or part thereof allowed pursuant to section
four-c of this part with respect to a taxable year.
(4-c) the amount allowed as an exclusion or deduction imposed by the
tax law in determining the entire taxable income which the taxpayer is
required to report to the United States treasury department but only
such portion of such exclusion or deduction which is not in excess of
the amount of the credit allowed pursuant to section four-d of this
part.
(4-d) The amount allowed as an exclusion or deduction for sales and
use taxes imposed by section eleven hundred seven of the tax law in
determining the entire taxable income which the taxpayer is required to
report to the United States Treasury Department but only such portion of
such exclusion or deduction which is not in excess of the amount of the
credit allowed pursuant to section four-e of this part.
(4-e) the amount allowed as an exclusion or deduction for sales and
use taxes imposed by section eleven hundred seven of the tax law in
determining the entire taxable income which the taxpayer is required to
report to the United States treasury department, but only such portion
of such exclusion or deduction which is not in excess of the amount of
the credit allowed pursuant to section four-f of this part.
(5) ninety per centum of interest on indebtedness directly or
indirectly owed to any stockholder or shareholder (including
subsidiaries of a corporate stockholder or shareholder), or members of
the immediate family of an individual stockholder or shareholder, owning
in the aggregate in excess of five per centum of the issued capital
stock of the taxpayer, except that such interest may, in any event, be
deducted
(A) up to an amount not exceeding one thousand dollars,
(B) in full to the extent that it relates to bonds or other evidences
of indebtedness issued, with stock, pursuant to a bona fide plan of
reorganization, to persons, who, prior to such reorganization, were bona
fide creditors of the corporation or its predecessors, but were not
stockholders or shareholders thereof,
(C) in full where the investment allocation percentage is applied to
entire net income, and
(D) in full to the extent that it is paid to a federally licensed
small business investment company;
(6) in the discretion of the director of finance, any amount of
interest directly or indirectly and any other amount directly
attributable as a carrying charge or otherwise to subsidiary capital or
to income, gains or losses from subsidiary capital; and
(7) any amount by reason of the granting, issuing or assuming of a
restricted stock option, as defined in the internal revenue code of
nineteen hundred fifty-four, or by reason of the transfer of the share
of stock upon the exercise of the option, unless such share is disposed
of by the grantee of the option within two years from the date of the
granting of the option or within six months after the transfer of such
share to him;
(8) in the case of a taxpayer who is separately or as a partner of a
partnership doing an insurance business as a member of the New York
insurance exchange described in paragraph (a) of subdivision one of
section four hundred twenty-five-a of the insurance law, such taxpayer's
distributive or pro rata share of the allocated entire net income of
such business as determined under sections fifteen hundred three and
fifteen hundred four of the tax law, provided however, in the event such
allocated entire net income is a loss, such taxpayer's distributive or
pro rata share of such loss shall not be subtracted from federal taxable
income in computing entire net income under this subdivision.
(9) for taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code (relating to qualified mass commuting vehicles), any amount
which the taxpayer claimed as a deduction in computing its federal
taxable income solely as a result of an election made pursuant to the
provisions of such paragraph eight as it was in effect for agreements
entered into prior to January first, nineteen hundred eighty-four;
(10) for taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code (relating to qualified mass commuting vehicles), any amount
which the taxpayer would have been required to include in the
computation of its federal taxable income had it not made the election
permitted pursuant to such paragraph eight as it was in effect for
agreements entered into prior to January first, nineteen hundred
eighty-four;
(11) for taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to recovery property subject to
the provisions of section two hundred eighty-F of the internal revenue
code and recovery property placed in service in this state in taxable
years beginning after December thirty-first, nineteen hundred
eighty-four the amount allowable as a deduction under section one
hundred sixty-eight of the internal revenue code;
(12) upon the disposition of recovery property to which paragraph (j)
of this subdivision applies, the amount, if any, by which the aggregate
of the amounts described in such paragraph (j) attributable to such
property exceeds the aggregate of the amounts described in subparagraph
eleven of this paragraph attributable to such property.
(13) for taxable years ending after September 10, 2001, in the case of
qualified property described in paragraph 2 of subsection k of section
168 of the internal revenue code, other than qualified resurgence zone
property described in paragraph (n) of this subdivision, and other than
qualified New York Liberty Zone property described in paragraph 2 of
subsection b of section 1400L of the internal revenue code (without
regard to clause (i) of subparagraph (C) of such paragraph), the amount
allowable as a deduction under section 167 of the internal revenue code.
(c) Entire net income shall include income within and without the
United States;
(d) The director of finance may, whenever necessary in order properly
to reflect the entire net income of any taxpayer, determine the year or
period in which any item of income or deduction shall be included,
without regard to the method of accounting employed by the taxpayer;
(e) The entire net income of any bridge commission created by act of
congress to construct a bridge across an international boundary means
its gross income less the expense of maintaining and operating its
properties, the annual interest upon its bonds and other obligations,
and the annual charge for the retirement of such bonds or obligations at
maturity;
(f) A net operating loss deduction shall be allowed which shall be the
same as the net operating loss deduction allowed under section one
hundred seventy-two of the internal revenue code or which would have
been allowed if the taxpayer had not made an election under subchapter s
of chapter one of the internal revenue code, except that (1) any net
operating loss included in determining such deduction shall be adjusted
to reflect the inclusions and exclusions from entire net income pursuant
to paragraphs (a), (b), (g) and (h) hereof, (2) such deductions shall
not include any net operating loss sustained during any taxable year in
which the taxpayer was not subject to the tax imposed by this part, (3)
such deduction shall not exceed the deduction for the taxable year
allowable under section one hundred seventy-two of the internal revenue
code, or the deduction for the taxable year which would have been
allowable if the taxpayer had not made an election under subchapter s of
chapter one of the internal revenue code, and (4) any net operating loss
for a taxable year beginning in nineteen hundred eighty-one shall be
computed without regard to the deduction allowed with respect to
recovery property under section one hundred sixty-eight of the internal
revenue code; in lieu of such deduction, a taxpayer shall be allowed for
such taxable year with respect to such property the depreciation
deduction allowable under section one hundred sixty-seven of such code
as such section was in full force and effect on December thirty-first,
nineteen hundred eighty;
(g) At the election of the taxpayer, a deduction shall be allowed for
expenditures paid or incurred during the taxable year for the
construction, reconstruction, erection or improvement of industrial
waste treatment facilities and air pollution control facilities.
(1) (A) The term "industrial waste treatment facilities" shall mean
facilities for the treatment, neutralization or stabilization of
industrial waste (as the term "industrial waste" is defined in section
twelve hundred two of the public health law) from a point immediately
preceding the point of such treatment, neutralization or stabilization
to the point of disposal, including the necessary pumping and
transmitting facilities, but excluding such facilities installed for the
primary purpose of salvaging materials which are usable in the
manufacturing process or are marketable.
(B) The term "air pollution control facilities" shall mean facilities
which remove, reduce, or render less noxious air contaminants emitted
from an air contamination source (as the terms "air contaminant" and
"air contamination source" are defined in section twelve hundred
sixty-seven of the state public health law) from a point immediately
preceding the point of such removal, reduction or rendering to the point
of discharge of air, meeting emission standards as established by the
air pollution control board, but excluding such facilities installed for
the primary purpose of salvaging materials which are usable in the
manufacturing process or are marketable and excluding those facilities
which rely for their efficacy on dilution, dispersion or assimilation of
air contaminants in the ambient air after emission.
(2) However, such deduction shall be allowed only
(A) with respect to tangible property which is depreciable, pursuant
to section one hundred sixty-seven of the internal revenue code, having
a situs in the city and used in the taxpayer's trade or business, the
construction, reconstruction, erection or improvement of which, in the
case of industrial waste treatment facilities, is initiated on or after
January first, nineteen hundred sixty-six, and only for expenditures
paid or incurred prior to January first, nineteen hundred seventy-two,
or which, in the case of air pollution control facilities, is initiated
on or after January first, nineteen hundred sixty-six, and
(B) on condition that such facilities have been certified by the state
commissioner of health or his designated representative, pursuant to the
public health law, as complying with applicable provisions of the public
health law, the state sanitary code and regulations, permits or orders
issued pursuant thereto, and
(C) on condition that entire net income for the taxable year and all
succeeding taxable years be computed without any deductions for such
expenditures or for depreciation of the same property other than the
deductions allowed by this paragraph (g) except to the extent that the
basis of the property may be attributable to factors other than such
expenditures, or in case a deduction is allowable pursuant to this
paragraph for only a part of such expenditures, on condition that any
deduction allowed for federal income tax purposes for such expenditures
or for depreciation of the same property be proportionately reduced in
computing entire net income for the taxable year and all succeeding
taxable years, and
(D) where the election provided for in paragraph (d) of subdivision
three of section four of this part has not been exercised in respect to
the same property.
(3) (A) If expenditures in respect to an industrial waste treatment
facility or an air pollution control facility have been deducted as
provided herein and if within ten years from the end of the taxable year
in which such deduction was allowed such property or any part thereof is
used for the primary purpose of salvaging materials which are usable in
the manufacturing process or are marketable, the taxpayer shall report
such change of use in its report for the first taxable year during which
it occurs, and the director of finance may recompute the tax for the
year or years for which such deduction was allowed and any carryback or
carryover year, and may assess any additional tax resulting from such
recomputation within the time fixed by paragraph (h) of subdivision
three of section seventy-four.
(B) If a deduction is allowed as herein provided for expenditures paid
or incurred during any taxable year on the basis of a temporary
certificate of compliance issued pursuant to the public health law and
if the taxpayer fails to obtain a permanent certificate of compliance
upon completion of the facilities with respect to which such temporary
certificate was issued, the taxpayer shall report such failure in its
report for the taxable year during which such facilities are completed,
and the director of finance may recompute the tax for the year or years
for which such deduction was allowed and any carryback or carryover
year, and may assess any additional tax resulting from such
recomputation within the time fixed by paragraph (h) of subdivision
three of section seventy-four.
(4) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to this
paragraph, such deduction shall be disregarded in computing gain or
loss, and the gain or loss on the sale or other disposition of such
property shall be the gain or loss entering into the computation of
entire taxable income which the taxpayer is required to report to the
United States treasury department for such taxable year;
(h) With respect to gain derived from the sale or other disposition of
any property acquired prior to January first, nineteen hundred
sixty-six, which had a federal adjusted basis on such date (or on the
date of its sale or other disposition prior to January first, nineteen
hundred sixty-six) lower than its fair market value on January first,
nineteen hundred sixty-six or the date of its sale or other disposition
prior thereto, except property described in subsections one and four of
section twelve hundred twenty-one of the internal revenue code, the
difference between---
(a) the amount of the taxpayer's federal taxable income, and
(b) the amount of the taxpayer's federal taxable income (if smaller
than the amount described in (a)) computed as if the federal adjusted
basis of each such property (on the sale or other disposition of which
gain was derived) on the date of the sale or other disposition had been
equal to either (i) its fair market value on January first, nineteen
hundred sixty-six or the date of its sale or other disposition prior to
January first, nineteen hundred sixty-six, plus or minus all adjustments
to basis made with respect to such property for federal income tax
purposes for periods on and after January first, nineteen hundred
sixty-six or (ii) the amount realized from its sale or disposition,
whichever is lower; provided, however, that the total modification
provided by this paragraph (h) shall not exceed the amount of the
taxpayer's net gain from the sale or other disposition of all such
property.
(i) If the period covered by a report under this part is other than
the period covered by the report to the United States treasury
department, entire net income shall be determined by multiplying the
federal taxable income (as adjusted pursuant to the provisions of this
part) by the number of calendar months or major parts thereof covered by
the report under this part and dividing by the number of calendar months
or major parts thereof covered by the report to such department. If it
shall appear that such method of determining entire net income does not
properly reflect the taxpayer's income during the period covered by the
report under this part, the director of finance shall be authorized in
his discretion to determine such entire net income solely on the basis
of the taxpayer's income during the period covered by its report under
this part.
(j) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to recovery property subject to
the provisions of section two hundred eighty-F of the internal revenue
code and recovery property placed in service in this state in taxable
years beginning after December thirty-first, nineteen hundred
eighty-four, and provided a deduction has not been excluded from entire
net income pursuant to subparagraph nine of paragraph (b) of this
subdivision, a taxpayer shall be allowed with respect to recovery
property the depreciation deduction allowable under section one hundred
sixty-seven of the internal revenue code as such section would have
applied to property placed in service on December thirty-first, nineteen
hundred eighty.
(l) for taxable years ending after September 10, 2001, in the case of
qualified property described in paragraph 2 of subsection k of section
168 of the internal revenue code, other than qualified resurgence zone
property described in paragraph (n) of this subdivision, and other than
qualified New York Liberty Zone property described in paragraph 2 of
subsection b of section 1400L of the internal revenue code (without
regard to clause (i) of subparagraph (C) of such paragraph), a taxpayer
shall be allowed with respect to such property the depreciation
deduction allowable under section 167 of the internal revenue code as
such section would have applied to such property had it been acquired by
the taxpayer on September 10, 2001.
(m) for taxable years ending after September 10, 2001, upon the
disposition of property to which paragraph (l) of this subdivision
applies, the amount of any gain or loss includible in entire net income
shall be adjusted to reflect the inclusions and exclusions from entire
net income pursuant to subparagraph 11 of paragraph (a) and subparagraph
13 of paragraph (b) of this subdivision attributable to such property.
(n) for purposes of paragraphs (l) and (m) of this subdivision,
qualified resurgence zone property shall mean qualified property
described in paragraph 2 of subsection k of section 168 of the internal
revenue code substantially all of the use of which is in the resurgence
zone, as defined below, and is in the active conduct of a trade or
business by the taxpayer in such zone, and the original use of which in
the resurgence zone commences with the taxpayer after September 10,
2001. The resurgence zone shall mean the area of New York county bounded
on the south by a line running from the intersection of the Hudson River
with the Holland Tunnel, and running thence east to Canal Street, then
running along the centerline of Canal Street to the intersection of the
Bowery and Canal Street, running thence in a southeasterly direction
diagonally across Manhattan Bridge Plaza, to the Manhattan Bridge and
thence along the centerline of the Manhattan Bridge to the point where
the centerline of the Manhattan Bridge would intersect with the easterly
bank of the East River, and bounded on the north by a line running from
the intersection of the Hudson River with the Holland Tunnel and running
thence north along West Avenue to the intersection of Clarkson Street
then running east along the centerline of Clarkson Street to the
intersection of Washington Avenue, then running south along the
centerline of Washington Avenue to the intersection of West Houston
Street, then east along the centerline of West Houston Street, then at
the intersection of the Avenue of the Americas continuing east along the
centerline of East Houston Street to the easterly bank of the East
River.
9. (a) The term "calendar year" means a period of twelve calendar
months (or any shorter period beginning on the date the taxpayer becomes
subject to the tax imposed by this part) ending on the thirty-first day
of December, provided the taxpayer keeps its books on the basis of such
period or on the basis of any period ending on any day other than the
last day of a calendar month, or provided the taxpayer does not keep
books, and includes, in case the taxpayer changes the period on the
basis of which it keeps its books from a fiscal year to a calendar year,
the period from the close of its last old fiscal year up to and
including the following December thirty-first.
(b) The term "fiscal year" means a period of twelve calendar months
(or any shorter period beginning on the date the taxpayer becomes
subject to the tax imposed by this part) ending on the last day of any
month other than December, provided the taxpayer keeps its books on the
basis of such period, and includes, in case the taxpayer changes the
period on the basis of which it keeps its books from a calendar year to
a fiscal year or from one fiscal year to another fiscal year, the period
from the close of its last old calendar or fiscal year up to the date
designated as the close of its new fiscal year.
10. The term "tangible personal property" means corporeal personal
property, such as machinery, tools, implements, goods, wares and
merchandise, and does not mean money, deposits in banks, shares of
stock, bonds, notes, credits or evidences of an interest in property and
evidences of debt.
§ 3. Imposition of tax; exemptions. 1. For the privilege of doing
business in the city in a corporate or organized capacity for all or any
part of each of its fiscal or calendar years, every domestic or foreign
corporation, except corporations specified in subdivision four of this
section, shall annually pay a tax, upon the basis of its entire net
income, or upon such other basis as may be applicable as hereinafter
provided, for such fiscal or calendar year or part thereof, on a report
which shall be filed, except as hereinafter provided, on or before the
fifteenth day of March next succeeding the close of each such year, or,
in the case of a taxpayer which reports on the basis of a fiscal year,
within two and one-half months after the close of such fiscal year, and
shall be paid as hereinafter provided.
2. The holding of real property in the city shall be deemed to be
doing business in the city within the meaning of this part. A
corporation shall not be deemed to be doing business in the city, for
the purposes of this part, by reason of (a) the maintenance of cash
balances with banks or trust companies in the city, or (b) the ownership
of shares of stock or securities kept in the city, if kept in a safe
deposit box, safe, vault or other receptacle rented for the purpose, or
if pledged as collateral security, or if deposited with one or more
banks or trust companies, or brokers who are members of a recognized
security exchange, in safekeeping or custody accounts, or (c) the taking
of any action by any such bank or trust company or broker, which is
incidental to the rendering of safekeeping or custodian service to such
corporation, or (d) any combination of the foregoing activities.
3. Any receiver, referee, trustee, assignee or other fiduciary, or any
officer or agent appointed by any court, who conducts the business of
any corporation, shall be subject to the tax imposed by this part in the
same manner and to the same extent as if the business were conducted by
the agents or officers of such corporation. A dissolved corporation
which continues to conduct business shall also be subject to the tax
imposed by this part.
4. Corporations subject to tax under part three, part four or part
five, or under a local law of the city imposing a tax on utilities, and
any trust company organized under a law of this state all of the stock
of which is owned by not less than twenty savings banks organized under
a law of this state, and housing companies organized and operating
pursuant to the provisions of article two, article four or article five
of the private housing finance law, shall not be subject to tax under
this part; provided, however, that corporations, other than utility
corporations subject to the supervision of the state department of
public service, which are subject to tax under a local law of the city
imposing a tax on vendors of utility services shall be subject to tax
under this part on that percentage of their entire net income allocable
to the city under section four which their receipts other than those
taxable under such local law taxing vendors of utility services is of
their total receipts.
5. The tax imposed by subdivision one of this section, with the
modifications provided by subdivision six of this section, is imposed
for each calendar or fiscal year beginning with calendar or fiscal years
ending in or with the calendar year nineteen hundred sixty-six.
6. (a) The tax for any taxable year ending prior to December
thirty-first, nineteen hundred sixty-six shall be an amount equal to the
tax imposed by subdivision one of this section for such taxable year,
multiplied by the number of months (or major portions thereof) in such
taxable year which occur after December thirty-first, nineteen hundred
sixty-five and divided by the number of months (or major portions
thereof) in such taxable year.
(b) In lieu of the method of computation of tax prescribed in
paragraph (a) of this subdivision, if the taxpayer maintained adequate
records for the portion of any taxable year ending prior to December
thirty-first, nineteen hundred sixty-six, which portion falls within the
calendar year nineteen hundred sixty-six, it may elect to compute the
tax for such taxable year by determining entire net income on the basis
of the entire taxable income which it would have reported for federal
income tax purposes had it filed a federal income tax return for a
taxable year beginning January first, nineteen hundred sixty-six and
ending with the close of its actual taxable year and such taxable year
beginning January first, nineteen hundred sixty-six, shall be deemed to
be the period covered by its report, except that in computing such tax
any portion of a capital loss which results from a capital loss
carryover and any net operating loss deduction, as modified pursuant to
paragraph (f) of subdivision eight of section two shall be reduced by
the same part of such portion of such capital loss or of such net
operating loss deduction (as the case may be) as the number of months (
or major portions thereof) in the taxable year occurring before January
first, nineteen hundred sixty-six is of the number of months (or major
portions thereof) in such taxable year.
§ 4. Computation of tax. * 1. The tax imposed by subdivision one of
section three of this part shall be, in the case of each taxpayer: (a) a
tax (1) for taxable years beginning on or after January first, nineteen
hundred seventy-eight but before January first, nineteen hundred
eighty-seven, computed at the rate of nine per centum, and for taxable
years beginning on or after January first, nineteen hundred
eighty-seven, computed at the rate of eight and eighty-five one
hundredths per centum on its entire net income, or the portion thereof
allocated within the city as hereinafter provided, subject to any
modification required by paragraph (d) of subdivision three of this
section, or (2) computed at one and one-half mills for each dollar of
its total business and investment capital, or the portion thereof
allocated within the city as hereinafter provided, except that in the
case of a cooperative housing corporation as defined in the internal
revenue code, the applicable rate shall be four-tenths of one mill, or
(3) for taxable years beginning on or after January first, nineteen
hundred seventy-eight but before January first, nineteen hundred
eighty-seven, computed at the rate of nine per centum, and for taxable
years beginning on or after January first, nineteen hundred
eighty-seven, computed at the rate of eight and eighty-five one
hundredths per centum on thirty per centum of the taxpayer's entire net
income plus salaries and other compensation paid to the taxpayer's
elected or appointed officers and to every stockholder owning in excess
of five per centum of its issued capital stock minus fifteen thousand
dollars (except as hereinafter provided) and any net loss for the
reported year, or on the portion of such sum allocated within the city
as hereinafter provided for the allocation of entire net income, subject
to any modification required by paragraph (d) of subdivision three of
this section, or (4) one hundred twenty-five dollars, whichever is the
greatest, plus (b) a tax computed at the rate of three-quarters of a
mill for each dollar of the portion of its subsidiary capital allocated
within the city as hereinafter provided. In the case of a taxpayer which
is not subject to tax for an entire year, or which elects to compute its
tax pursuant to paragraph (b) of subdivision six of section three, the
exemption allowed in clause three of paragraph (a) shall be prorated
according to the period such taxpayer was subject to tax or, in the case
of such an election, the period for which its entire net income is
determined pursuant to such paragraph (b) of subdivision six of section
three.
* NB Effective until December 31, 2003
* 1. The tax imposed by subdivision one of section three of this part
shall be, in the case of each taxpayer: (a) a tax (1) computed at the
rate of five and one-half per centum, or as an alternative for taxable
years beginning on or after January first, nineteen hundred seventy-one,
at the rate of six and seven-tenths per centum, on its entire net
income, or the portion thereof allocated within the city as hereinafter
provided, subject to any modification required by paragraph (d) of
subdivision three of this section, or (2) computed at one mill for each
dollar of its total business and investment capital, or the portion
thereof allocated within the city as hereinafter provided, except that
in the case of a cooperative housing corporation as defined in the
internal revenue code, the applicable rate shall be one-quarter of one
mill, or (3) computed at the rate of five and one-half per centum, or as
an alternative for taxable years beginning on or after January first,
nineteen hundred seventy-one, at the rate of six and seven-tenths per
centum, on thirty per centum of the taxpayer's entire net income plus
salaries and other compensation paid to the taxpayer's elected or
appointed officers and to every stockholder owning in excess of five per
centum of its issued capital stock minus fifteen thousand dollars
(except as hereinafter provided) and any net loss for the reported year,
or on the portion of such sum allocated within the city as hereinafter
provided for the allocation of entire net income, subject to any
modification required by paragraph (d) of subdivision three of this
section, or (4) twenty-five dollars, whichever is the greatest, plus (b)
a tax computed at the rate of one-half mill for each dollar of the
portion of its subsidiary capital allocated within the city as
hereinafter provided. In the case of a taxpayer which is not subject to
tax for an entire year, or which elects to compute its tax pursuant to
paragraph (b) of subdivision six of section three, the exemption allowed
in clause three of paragraph (a) shall be prorated according to the
period such taxpayer was subject to tax or, in the case of such an
election, the period for which its entire net income is determined
pursuant to such paragraph (b) of subdivision six of section three.
* NB Effective December 31, 2003
2. The amount of subsidiary capital, investment capital and business
capital shall each be determined by taking the average fair market value
of the gross assets included therein (less, in the case of business
capital, average liabilities deductible therefrom which are payable by
their terms on demand or within one year from the date incurred, other
than loans or advances outstanding for more than a year as of any date
during the year covered by the report), and, if the period covered by
the report is other than a period of twelve calendar months, by
multiplying such value by the number of calendar months or major parts
thereof included in such period, and dividing the product thus obtained
by twelve.
3. The portion of the entire net income of a taxpayer to be allocated
within the city shall be determined as follows:
(a) multiply its business income by a business allocation percentage
to be determined by
(1) ascertaining the percentage which the average value of the
taxpayer's real and tangible personal property within the city during
the period covered by its report bears to the average value of all the
taxpayer's real and tangible personal property wherever situated during
such period;
(2) ascertaining the percentage which the receipts of the taxpayer,
computed on the cash or accrual basis according to the method of
accounting used in the computation of its entire net income, arising
during such period from
(A) sales of its tangible personal property located within the city at
the time of the receipt of or appropriation to the orders, where
shipments are made to points within the city,
(B) sales of its tangible personal property not located at the time of
the receipt of or appropriation to the orders at any permanent or
continuous place of business maintained by the taxpayer without the city
where the orders were received or accepted within the city and where
shipments are made to points within the city,
(C) sales of its tangible personal property located within the city at
the time of the receipt of or appropriation to the orders where shipment
is made to points outside of the city and sales of its tangible personal
property (except sales described in clause (B)) located without the city
at the time of the receipt of or appropriation to the orders where
shipment is made to points within the city, but only to the extent of
fifty per centum of the receipts from the sales referred to in this
clause,
(D) sales of its tangible personal property not located at the time of
the receipt of or appropriation to the orders at any permanent or
continuous place of business maintained by the taxpayer without the
city, where the orders were received or accepted within the city and
where shipment is made between points outside the city, but only to the
extent of fifty per centum of the receipts from the sales referred to in
this clause. For purposes of this clause and clause (B) an order shall
be deemed received or accepted within the city if it has been received
or accepted by an employee, agent, agency or independent contractor
chiefly situated at, connected with, by contract or otherwise, or sent
out from a permanent or continuous place of business of the taxpayer
within the city,
(E) services performed within the city,
(F) rentals from property situated and royalties from the use of
patents or copyrights, within the city, and
(G) all other business receipts earned within the city,
bear to the total amount of the taxpayer's receipts, similarly computed,
arising during such period from all sales of its tangible personal
property, services, rentals, royalties and all other business
transactions, whether within or without the city;
(3) ascertaining the percentage of the total wages, salaries and other
personal service compensation, similarly computed, during such period of
employees within the city, except general executive officers, to the
total wages, salaries and other personal service compensation, similarly
computed, during such period of all the taxpayer's employees within and
without the city, except general executive officers, and
(4) adding together the percentages so determined and dividing the
result by the number of percentages; provided, however, that if the
taxpayer does not have a regular place of business outside the city
other than a statutory office, the business allocation percentage shall
be one hundred per centum; and
(b) multiply its investment income by an investment allocation
percentage to be determined by
(1) multiplying the amount of its investment capital invested in each
stock, bond or other security (other than governmental securities)
during the period covered by its report by the percentage, if any, of
the entire capital or the issued capital stock, or the gross direct
premiums, or the net income, as the case may be, of the issuer or
obligor thereof required to be allocated within the city on the report
or reports, if any, required of any such issuer or obligor under part
II, part III, part IV, or part V or under a local law of the city
imposing a tax on utilities for the preceding year, provided, however,
that for taxable years ending in or with calendar year nineteen hundred
sixty-six, such percentage shall be presumed to be that percentage, if
any, of the entire capital or the issued capital stock, or the gross
direct premiums, or the net income, as the case may be, of the issuer or
obligor thereof required to be allocated within the state on the report
or reports, if any, required of any such issuer or obligor under the tax
law or the insurance law for the preceding year, unless the taxpayer
establishes the actual percentage which such issuer or obligor would
have been required to allocate within the city had part II, part III,
part IV, or part V been in effect for such year, or which such issuer or
obligor did allocate within the city under a local law of the city
imposing a tax on utilities, but without regard to any minimum,
(2) adding together the sum so obtained, and
(3) dividing the result so obtained by the total of its investment
capital invested during such period in stocks, bonds and other
securities (other than obligations of the United States and its
instrumentalities and obligations of the state of New York, its
political subdivisions and its instrumentalities); provided, however,
that in case any investment capital is invested in any stock, bond or
other security during only a portion of the period covered by the
report, only such portion of such capital shall be taken into account;
and provided further, that if a taxpayer's investment allocation
percentage is zero, interest received on bank accounts, on obligations
of the United States and its instrumentalities and on obligations of the
state of New York, its political subdivisions and its instrumentalities
shall be multiplied by its business allocation percentage; and
(c) add the products so obtained.
(d) At the election of the taxpayer there shall be deducted from the
portion of its entire net income allocated within the city either or
both of the items set forth in subparagraphs one and two of this
paragraph, except that only one of such deductions shall be allowed with
respect to any one items of property.
(1) Depreciation with respect to any property such as described in
subparagraph three of this paragraph, not exceeding twice the
depreciation allowed with respect to the same property for federal
income tax purposes. Such deduction shall be allowed only upon condition
that entire net income be computed without any deduction for the
depreciation of the same property, and the total of all deductions
allowed pursuant to the preceding sentence in any taxable year or years
with respect to any property shall not exceed its cost or other basis.
(2) Expenditures paid or incurred during the taxable year for the
construction, reconstruction, erection or acquisition of any property
such as described in subparagraph three of this paragraph which is used
or to be used for purposes of research and development in the
experimental or laboratory sense. Such purposes shall not be deemed to
include the ordinary testing or inspection of materials or products for
quality control, efficiency surveys, management studies, consumer
surveys, advertising, promotions or research in connection with
literary, historical or similar projects. Such deduction shall be
allowed only on condition that entire net income for the taxable year
and all succeeding taxable years be computed without the deduction of
any such expenditures and without any deduction for depreciation of the
same property, except to the extent that its basis may be attributable
to factors other than such expenditures, or in case a deduction is
allowable pursuant to this subparagraph for only a part of such
expenditures, on condition that any deduction allowed for federal income
tax purposes on account of such expenditures or on account of
depreciation of the same property be proportionately reduced in
computing entire net income for the taxable year and all succeeding
taxable years. With respect to property which is used or to be used for
research and development only in part, or during only part of its useful
life, a proportionate part of such expenditures shall be deductible. If
all or part of such expenditures with respect to any property shall have
been deducted as provided herein, and such property is used for purposes
other than research and development to a greater extent than originally
reported, the taxpayer shall report such use in its report for the first
taxable year during which it occurs, and the director of finance may
recompute the tax for the year or years for which such deduction was
allowed, and may assess any additional tax resulting from such
recomputation regardless of the time limitations set forth in section
seventy-four of this title.
(3) Such deductions shall be allowed only with respect to tangible
property which is depreciable pursuant to section one hundred
sixty-seven of the internal revenue code, having a situs in the city and
used in the taxpayer's trade or business, (A) the construction,
reconstruction or erection of which is completed after December
thirty-first, nineteen hundred sixty-five, and then only with respect to
that portion of the basis thereof or the expenditures relating thereto
which is properly attributable to such construction, reconstruction or
erection after December thirty-first, nineteen hundred sixty-five, or
(B) acquired after December thirty-first, nineteen hundred sixty-five by
purchase as defined in section one hundred seventy-nine (d) of the
internal revenue code, if the original use of such property commenced
with the taxpayer, commenced in the city and commenced after such date.
(4) If the deductions allowable for any taxable year, pursuant to this
subdivision, exceed the portion of the taxpayer's entire net income
allocated to the city for such year, the excess may be carried over to
the following taxable year or years and may be deducted from the portion
of the taxpayer's entire net income allocated to the city for such year
or years.
(5) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to
subparagraph one or two of this paragraph, the gain or loss thereon
entering into the computation of federal taxable income shall be
disregarded in computing entire net income, and there shall be added to
or subtracted from the portion of entire net income allocated within the
city the gain or loss upon such sale or other disposition. In computing
such gain or loss the basis of the property sold or disposed of shall be
adjusted to reflect the deduction allowed with respect to such property
pursuant to subparagraph one or two of this paragraph. Provided,
however, that no loss shall be recognized for the purposes of this
subparagraph with respect to a sale or other disposition of property to
a person whose acquisition thereof is not a purchase as defined in
section one hundred seventy-nine (d) of the internal revenue code.
4. The portion of the business capital of a taxpayer to be allocated
within the city shall be determined by multiplying the amount thereof by
the business allocation percentage determined as hereinabove provided.
5. The portion of the investment capital of a taxpayer to be allocated
within the city shall be determined by multiplying the amount thereof by
the investment allocation percentage determined as hereinabove provided.
6. Any taxpayer not taxed upon the basis of a combined report, the
investment income of which is less than twenty-five per centum of its
entire net income and the investment capital of which is less than
twenty-five per centum of its total business and investment capital, may
at its election apply its business allocation percentage to its entire
net income and its total business and investment capital. Any taxpayer
not taxed upon the basis of a combined report, the investment income of
which is more than eighty-five per centum of its entire net income and
the investment capital of which is more than eighty-five per centum of
its total business and investment capital, may at its election apply its
investment allocation percentage to its entire net income and its total
business and investment capital. Any taxpayer not taxed upon the basis
of a combined report, the subsidiary capital of which (computed without
regard to this sentence) is more than eighty-five per centum of its
total capital, exclusive of cash on hand and on deposit, obligations of
the United States and its instrumentalities and obligations of the state
of New York, its political subdivisions and its instrumentalities, may
at its election treat as subsidiary capital a proportion of such cash
and obligations not in excess of the proportion of its subsidiary
capital (so computed) to its total capital.
7. The portion of the subsidiary capital of a taxpayer to be allocated
within the city shall be determined by (a) multiplying the amount of its
subsidiary capital invested in each subsidiary during the period covered
by its report (or, in the case of any such capital so invested during
only a portion of such period, such portion of such capital) by the
percentage, if any, of the entire capital or the issued capital stock,
or the gross direct premiums, or the net income, as the case may be, of
such subsidiary required to be allocated within the city on the report
or reports, if any, required of such subsidiary under this title for the
preceding year, or which would have been required for such year had this
title been in effect, but without regard to any minimum, (b) multiplying
the proportion of cash and obligations of the United States and its
instrumentalities and obligations of the state of New York, its
political subdivisions and its instrumentalities treated as subsidiary
capital, by the weighted average of the percentages used in clause (a)
hereof, and (c) adding together the sums so obtained.
8. If it shall appear to the director of finance that any business or
investment allocation percentage determined as hereinabove provided does
not properly reflect the activity, business, income or capital of a
taxpayer within the city, the director of finance shall be authorized in
his discretion, in the case of a business allocation percentage, to
adjust it by (a) excluding one or more of the factors therein, (b)
including one or more other factors, such as expenses, purchases,
contract values (minus subcontract values), (c) excluding one or more
assets in computing such allocation percentage, provided the income
therefrom is also excluded in determining entire net income, or (d) any
other similar or different method calculated to effect a fair and proper
allocation of the income and capital reasonably attributable to the
city, and in the case of an investment allocation percentage to adjust
it by excluding one or more assets in computing such percentage provided
the income therefrom is also excluded in determining entire net income.
The director of finance from time to time shall publish all rulings of
general public interest with respect to any application of the
provisions of this subdivision.
9. If it shall appear to the director of finance that any business
allocation percentage determined as hereinabove provided does not
properly reflect the activity, business, income or capital of a taxpayer
within the city, the director of finance shall be authorized in his
discretion to adjust it by (a) excluding one or more of the factors
therein, (b) including one or more other factors, such as expenses,
purchases, contract values (minus subcontract values), (c) excluding one
or more assets in computing such allocation percentage, provided the
income therefrom is also excluded in determining entire net income, or
(d) any other similar or different method calculated to effect a fair
and proper allocation of the income and capital reasonably attributable
to the city, and in the case of an investment allocation percentage, to
adjust it by excluding one or more assets in computing such percentage
provided the income therefrom is also excluded in determining entire net
income. The director of finance from time to time shall publish all
rulings of general public interest with respect to any application of
the provisions of this subdivision.
10. For purposes of this section the taxpayer's real property shall
include not only such property owned by the taxpayer but also such
property rented to it.
§ 4-a. Credit relating to stock transfer tax. (1) A taxpayer shall be
allowed a credit, to be credited or refunded in the manner hereinafter
provided in this section, against the tax imposed by this part. The
amount of such credit shall be fifty per cent of the tax incurred in
market making transactions under the provisions of article twelve of the
tax law on such transactions subject to such tax occurring on and after
August first, nineteen hundred seventy-six and paid by such taxpayer
(except when such tax shall have been paid pursuant to section two
hundred seventy-nine-a of such tax law).
(2) For purposes of this subsection:
(a) the term "taxpayer" shall mean any corporation subject to tax
under this part registered with the United States securities and
exchange commission in accordance with subsection (b) of section fifteen
of the securities exchange act of nineteen hundred thirty-four, as
amended, and acting as a dealer in a transaction described in paragraph
(b) of this subdivision, and
(b) the term "market making transaction" shall mean any transaction
involving a sale (including a short sale) by a dealer of shares or
certificates subject to the tax imposed by article twelve of the tax
law, provided such shares or certificates are sold:
(i) as stock in trade or inventory or as property held for sale in the
ordinary course of such dealer's trade or business (including transfers
which are part of an underwriting),
(ii) in (a) a bona fide arbitrage transaction; (b) a bona fide hedge
transaction involving a long or short position in any equity security
and a long or short position in a security entitling the holder to
acquire or sell such equity security; or (c) a risk arbitrage
transaction in connection with a merger, acquisition, tender offer,
recapitalization, reorganization, or similar transaction, or
(iii) to offset a transaction made in error.
Provided, however, that, except as to subparagraph (ii) (c) of this
paragraph, the term "market making transaction" shall not include any
sale of shares or certificates identified in such dealer's records as a
security held for investment within the meaning of section twelve
hundred thirty-six of the internal revenue code.
(3) The credit allowed under this section for any taxable year shall
be deemed to be an overpayment of tax by the taxpayer to be credited or
refunded in accordance with the provisions of section seventy-seven of
this title, except as otherwise provided in subdivision three of section
six and subdivision eleven of section eight of this part; provided,
however, that the provisions of this chapter notwithstanding, the amount
to be refunded pursuant to this section shall not be paid prior to the
first day of the eighth month following the close of the taxable year,
and the provisions of subdivision three of section seventy-nine of this
title notwithstanding, interest shall be allowed and paid on the
overpayment of the credit under this section from the first day of the
eleventh month following the close of the taxable year, or three months
after a claim for the credit or refund provided for in this section has
been filed, whichever is later.
(4) Provided, however, that the credit provided under this subsection
shall be allowed only to the extent that the amount of credit allowable
with respect to market making transactions under the provisions of this
subsection (determined without regard to the provisions of this
subdivision) exceeds fifty percent of all rebates (provided for under
the provisions of section two hundred eighty-a of article twelve of the
tax law) allowed for such taxes incurred in the same market making
transactions with respect to which the credit is allowed. No credit
shall be allowed under this subsection with respect to any tax incurred
in market making transactions occurring on or after October first,
nineteen hundred eighty-one.
§ 4-b. Credit relating to certain sales and compensating use taxes.
(1) In addition to the credit allowed by section four-a of such chapter,
a taxpayer shall be allowed a credit against the tax imposed by this
part to be credited or refunded in the manner hereinafter provided in
this section. The amount of such credit shall be the excess of (A) the
amount of sales and compensating use taxes imposed by section eleven
hundred seven of the tax law during the taxpayer's taxable year which
became legally due on or after and was paid on or after July first,
nineteen hundred seventy-seven, less any credits or refunds of such
taxes, with respect to the purchase or use by the taxpayer of machinery
or equipment for use or consumption directly and predominantly in the
production of tangible personal property, gas, electricity,
refrigeration or steam for sale, by manufacturing, processing,
generating, assembling, refining, mining or extracting, or telephone
central office equipment or station apparatus or comparable telegraph
equipment for use directly and predominantly in receiving at destination
or initiating and switching telephone or telegraph communication, but
not including parts with a useful life of one year or less or tools or
supplies used in connection with such machinery, equipment or apparatus
over (B) the amount of any credit for such sales and compensating use
taxes allowed or allowable against the taxes imposed by any local law of
the city imposing a tax on utilities and vendors of utility services,
for any periods embraced within the taxable year of the taxpayer under
this part. (2) The credit allowed under this section for any taxable
year shall be deemed to be an overpayment of tax by the taxpayer to be
credited or refunded, without interest, in accordance with the
provisions of section seventy-seven of this title. (3) Where the
taxpayer receives a refund or credit of any tax imposed under section
eleven hundred seven of the tax law for which the taxpayer had claimed a
credit under the provisions of section four-b of such chapter in a prior
taxable year, the amount of such tax refund or credit shall be added to
the tax imposed by section three of such chapter, and such amount shall
be subtracted in computing entire net income for the taxable year.
§ 4-c. Credit relating to certain expenses involved in the cost of
relocating industrial and commercial employment opportunities. (1) In
addition to any other credit allowed by this section, a taxpayer shall
be allowed a credit against the tax imposed by this part to be credited
or refunded, without interest, in the manner hereinafter provided in
this section. The amount of such credit shall be:
(A) A maximum of three hundred dollars for each commercial employment
opportunity and a maximum of five hundred dollars for each industrial
employment opportunity relocated to the city from an area outside the
state. Such credit shall be allowed to a taxpayer which relocates a
minimum of ten employment opportunities. The credit shall be allowed
against employment opportunity relocation costs incurred by the
taxpayer. Such credit shall be allowed only to the extent that the
taxpayer has not claimed a deduction for allowable employment
opportunity relocation costs. The credit allowed hereunder may be taken
by the taxpayer in whole or in part in the year in which the employment
opportunity is relocated by such taxpayer or either of the two years
succeeding such event.
The director of finance is empowered to promulgate rules and
regulations and to prescribe the form of application to be used by a
taxpayer seeking the credit provided hereunder.
(B) Definitions: When used in this section, "Employment Opportunity"
means the creation of a full time position of gainful employment for an
industrial or commercial employee and the actual hiring of such employee
for the said position.
"Industrial Employee" means one engaged in the manufacture or
assembling of tangible goods or the processing of raw materials.
"Commercial Employee" means one engaged in the buying, selling or
otherwise providing of goods or services other than on a retail basis.
"Retail" means the selling or otherwise disposing or furnishing of
tangible goods or services directly to the ultimate user or consumer.
"Full Time Position" means the hiring of an industrial or commercial
employee in a position of gainful employment where the number of hours
worked by such employee is not less than thirty hours during any given
work week.
"Employment Opportunity Relocation Costs" means the costs incurred by
the taxpayer in moving furniture, files, papers and office equipment
into the city from a location outside the state; the costs incurred by
the taxpayer in the moving and installation of machinery and equipment
into the city from a location outside the state; the costs of
installation of telephones and other communications equipment required
as a result of the relocation to the city from a location outside the
state; the cost incurred in the purchase of office furniture and
fixtures required as a result of the relocation to the city from a
location outside the state; and the cost of renovation of the premises
to be occupied as a result of the relocation provided, however, that
such renovation costs shall be allowable only to the extent that they do
not exceed seventy-five cents per square foot of the total area utilized
by the taxpayer in the occupied premises.
(2) The credit allowed under this section for any taxable year shall
be deemed to be an overpayment of tax by the taxpayer to be credited or
refunded, without interest, in accordance with the provisions of section
seventy-seven of this title.
(3) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law for which the taxpayer
had claimed a credit under the provisions of this section in a prior
taxable year, the amount of such tax refund or credit shall be added to
the tax imposed by section three, and such amount shall be subtracted in
computing entire net income for the taxable year.
§ (4-d) Credit relating to the annual increase in certain payments to
a landlord by a taxpayer relocating industrial and commercial employment
opportunities. (1) In addition to any other credit allowed by this
section, a taxpayer shall be allowed a credit against the tax imposed by
this part to be credited or refunded, without interest, in the manner
hereinafter provided in this section.
(A) Where a taxpayer shall have relocated to the city from a location
outside the state, and by such relocation shall have created a minimum
of one hundred industrial or commercial employment opportunities; and
where such taxpayer shall have entered into a written lease for the
relocation premises, the terms of which lease provide for increased
additional payments to the landlord which are based solely and directly
upon any increase or addition in real estate taxes imposed on the leased
premises, the taxpayer upon approval and certification by the industrial
and commercial incentive board as hereinafter provided shall be entitled
to a credit against the tax imposed by this section. The amount of such
credit shall be: An amount equal to the annual increased payments
actually made by the taxpayer to the landlord which are solely and
directly attributable to an increase or addition to the real estate tax
imposed upon the leased premises. Such credit shall be allowed only to
the extent that the taxpayer has not otherwise claimed said amount as a
deduction against the tax imposed by this section.
The industrial and commercial incentive board in approving and
certifying to the qualifications of the taxpayer to receive the tax
credit provided for herein shall first determine that the applicant has
met the requirements of this section, and further, that the granting of
the tax credit to the applicant is in the "public interest." In
determining that the granting of the tax credit is in the public
interest, the board shall make affirmative findings that: the granting
of the tax credit to the applicant will not effect an undue hardship on
similar taxpayers already located within the city; the existence of this
tax incentive has been instrumental in bringing about the relocation of
the applicant to the city; and the granting of the tax credit will
foster the economic recovery and economic development of the city.
The tax credit, if approved and certified by the industrial and
commercial incentive board, must be utilized annually by the taxpayer
for the length of the term of the lease or for a period not to exceed
ten years from the date of relocation, whichever period is shorter.
(B) Definitions: When used in this section, "Employment opportunity"
means the creation of a full time position of gainful employment for an
industrial or commercial employee and the actual hiring of such employee
for the said position.
"Industrial employee" means one engaged in the manufacture or
assembling of tangible goods or the processing of raw materials.
"Commercial employee" means one engaged in the buying, selling or
otherwise providing of goods or services other than on a retail basis.
"Retail" means the selling or otherwise disposing or furnishing of
tangible goods or services directly to the utlimate user or consumer.
"Full time position" means the hiring of an industrial or commercial
employee in a position of gainful employment where the number of hours
worked by such employee is not less than thirty hours during any given
work week.
"Industrial and commercial incentive board" means the board created
pursuant to section four hundred eighty-nine-nn of the real property tax
law.
(2) The credit allowed under this section for any taxable year shall
be deemed to be an overpayment of tax by the taxpayer to be credited or
refunded in accordance with the provisions of section seventy-seven of
this title.
(3) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law for which the taxpayer
had claimed a credit under the provisions of this section in a prior
taxable year, the amount of such tax refund or credit shall be added to
the tax imposed by section three of this part, and such amount shall be
subtracted in computing entire net income for the taxable year.
§ 4-e. Credit relating to certain sales and compensating use taxes.
(1) in addition to any other credit allowed by this section, a taxpayer
shall be allowed a credit against the tax imposed by this part to be
credited or refunded in the manner hereinafter provided in this section.
The amount of such credit shall be equal to one-half the amount of sales
and compensating use taxes imposed by section eleven hundred seven of
the tax law during the taxpayer's taxable year which became legally due
on or after and was paid on or after July first, nineteen hundred
eighty-one, less one-half of any credits or refunds of such taxes, with
respect to the purchase or use by the taxpayer of (i) parts with a
useful life of one year or less, tools and supplies for use or
consumption directly and predominantly in the production of tangible
personal property, gas, electricity, refrigeration or steam for sale by
manufacturing, processing, generating, assembling, refining, mining or
extracting or for use directly and predominantly in or on telephone
central office equipment or station apparatus or comparable telegraph
equipment where such equipment or apparatus is used directly and
predominantly in receiving at destination or initiating and switching
telephone or telegraph communication, and (ii) the service of
installing, repairing, maintaining or servicing the tangible personal
property described in section four-b of this part, including the parts
with a useful life of one year or less, tools and supplies described in
clause (i) of this subdivision. The foregoing credit shall be reduced
by the amount of any credit for such sales and compensating use taxes
allowed or allowable against the taxes imposed by any local law of the
city imposing a tax on utilities and vendors of utility services, for
any periods embraced within the taxable year of the taxpayer under this
part.
(2) The credit allowed under this section for any taxable year shall
be deemed to be an overpayment of tax by the taxpayer to be credited or
refunded without interest in accordance with the provisions of section
seventy-seven of this title.
(3) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law for which the taxpayer
had claimed a credit under the provisions of this section in a prior
taxable year, the amount of such tax refund or credit shall be added to
the tax imposed by section three of this part, and such amount shall be
subtracted in computing entire net income for the taxable year.
§ 4-f. Credit relating to certain sales and compensating use taxes on
electricity used in manufacturing, processing or assembling. (1) (a) In
addition to any other credit allowed by this part, a taxpayer shall be
allowed a credit against the tax imposed by this part to be credited or
refunded in the manner hereinafter provided in this section. The amount
of such credit shall be equal to the amount of sales and compensating
use taxes imposed by section eleven hundred seven of the tax law during
the taxpayer's taxable year which became legally due on or after and was
paid on or after July first, nineteen hundred eighty-four, less any
credits or refunds of such taxes, with respect to the purchase or use by
the taxpayer of electricity or electric service of whatever nature for
use or consumption directly and exclusively in the production of
tangible personal property for sale by manufacturing, processing or
assembling. Provided, however, the amount of the credit allowed by this
paragraph shall be reduced by the amount of any rebate or rebates
received during the taxpayer's taxable year pursuant to a local law
enacted in accordance with article two-G of the general city law.
(b) In addition to any other credit allowed by this part, a taxpayer
shall be allowed a credit against the tax imposed by this part to be
credited or refunded in the manner hereinafter provided in this
subdivision. The amount of such credit shall be equal to the percentage
specified below of the amount of sales and compensating use taxes
imposed by section eleven hundred seven of the tax law during the
taxpayer's taxable year which became legally due on or after and was
paid on or after July first, nineteen hundred eighty-eight, less any
credit or refund of such taxes, with respect to the purchase or use by a
non-residential energy user, as such term is defined in article two-G of
the general city law, of electricity or electric service purchased at
retail from the power authority of the state of New York or the port
authority of the state of New York and New Jersey, provided, however,
that no credit shall be allowed with respect to purchases from such port
authority unless it shall be an "eligible vendor of energy services", as
defined in paragraph one of subdivision (c) of section twenty-five-v of
the general city law, and shall have obtained a certification of
eligibility in accordance with subdivision (b) of section twenty-five-w
of such law; during the period commencing July first, nineteen hundred
eighty-eight and ending June thirtieth, nineteen hundred eighty-nine the
credit shall be in an amount equal to twenty-five per centum of such
sales and compensating use taxes imposed; during the period commencing
July first, nineteen hundred eighty-nine and ending June thirtieth,
nineteen hundred ninety the credit shall be in an amount equal to fifty
per centum of such taxes imposed; during the period commencing July
first, nineteen hundred ninety and ending June thirtieth, nineteen
hundred ninety-one the credit shall be in an amount equal to
seventy-five per centum of such taxes imposed; and during the period
commencing July first, nineteen hundred ninety-one and thereafter the
credit shall be in an amount equal to one hundred per centum of such
taxes imposed.
(c) In addition to any other credit allowed by this part, a taxpayer
shall be allowed a credit against the tax imposed by this part to be
credited or refunded in the manner hereinafter provided in this
subdivision. The amount of such credit shall be equal to the percentage
specified below of the amount of sales and compensating use taxes
imposed by section eleven hundred seven of the tax law during the
taxpayer's taxable year which became legally due on or after and was
paid on or after July first, nineteen hundred eighty-eight, less any
credit or refund of such taxes, with respect to the purchase or use by a
non-residential fuel user of fuel or fuel service except fuel used to
operate motor vehicles; during the period commencing July first,
nineteen hundred eighty-eight and ending June thirtieth, nineteen
hundred eighty-nine the credit shall be in an amount equal to
twenty-five per centum of such sales and compensating use taxes imposed,
during the period commencing July first, nineteen hundred eighty-nine
and ending June thirtieth, nineteen hundred ninety the credit shall be
in an amount equal to fifty per centum of such taxes imposed; during the
period commencing July first, nineteen hundred ninety and ending June
thirtieth, nineteen hundred ninety-one the credit shall be in an amount
equal to seventy-five per centum of such taxes imposed; and during the
period commencing July first, nineteen hundred ninety-one and thereafter
the credit shall be in an amount equal to one hundred per centum of such
taxes imposed. For purposes of this paragraph, the term "non-residential
fuel user" shall mean any non-residential user of fuel, except a
government agency or instrumentality thereof, public benefit
corporation, or any entity that is exempt from the sales tax imposed
pursuant to section eleven hundred seven of the tax law, provided that
the term "non-residential fuel user" shall not include an owner or
operator of residential income producing property, except a hotel.
(2) The credit allowed under this section for any taxable year shall
be deemed to be an overpayment of tax by the taxpayer to be credited or
refunded, without interest, in accordance with the provisions of section
seventy-seven of this title.
(3) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law for which the taxpayer
had claimed a credit under the provisions of this section in a prior
taxable year, the amount of such tax refund or credit shall be added to
the tax imposed by section three of this part, and such amount shall be
subtracted in computing entire net income for the taxable year.
§ 4-h. Relocation and employment assistance credit. (1) In addition
to any other credit allowed by this part, a taxpayer that has obtained
the certifications in accordance with subdivision (b) of section
twenty-five-z of the general city law shall be allowed a credit against
the tax imposed by this part. The amount of the credit shall be the
amount determined by multiplying five hundred dollars or, in the case of
a taxpayer that has obtained pursuant to subdivision (b) of such section
twenty-five-z a certification of eligibility dated on or after July
first, nineteen hundred ninety-five, one thousand dollars or, in the
case of an eligible business that has obtained pursuant to subdivision
(b) of such section twenty-five-z a certification of eligibility dated
on or after July first, two thousand, for a relocation to eligible
premises located within a revitalization area defined in subdivision (n)
of section twenty-five-y of the general city law, three thousand
dollars, by the number of eligible aggregate employment shares
maintained by the taxpayer during the taxable year with respect to
particular premises to which the taxpayer has relocated; provided,
however, with respect to a relocation for which no application for a
certificate of eligibility is submitted prior to July first, two
thousand three, to eligible premises that are not within a
revitalization area, if the date of such relocation as determined
pursuant to subdivision (j) of section twenty-five-y of the general city
law is before July first, nineteen hundred ninety-five, the amount to be
multiplied by the number of eligible aggregate employment shares shall
be five hundred dollars, and with respect to a relocation for which no
application for a certificate of eligibility is submitted prior to July
first, two thousand three, to eligible premises that are within a
revitalization area, if the date of such relocation as determined
pursuant to subdivision (j) of such section is before July first,
nineteen hundred ninety-five, the amount to be multiplied by the number
of eligible aggregate employment shares shall be five hundred dollars,
and if the date of such relocation as determined pursuant to subdivision
(j) of such section is on or after July first, nineteen hundred
ninety-five, and before July first, two thousand, one thousand dollars;
provided, however, that no credit shall be allowed for the relocation of
any retail activity or hotel services; provided, further, that no credit
shall be allowed under this section to any taxpayer that has elected
pursuant to subdivision (d) of section twenty-five-z of the general city
law to take such credit against a gross receipts tax imposed under a
local law enacted pursuant to subdivision (a) of section twelve hundred
one of the tax law; and provided that in the case of an eligible
business that has obtained pursuant to subdivision (b) of such section
twenty-five-z certifications of eligibility for more than one
relocation, the portion of the total amount of eligible aggregate
employment shares to be multiplied by the dollar amount specified in
this subdivision for each such certification of a relocation shall be
the number of total attributed eligible aggregate employment shares
determined with respect to such relocation pursuant to subdivision (o)
of section twenty-five-y of the general city law. For purposes of this
section, the terms "eligible aggregate employment shares", "relocate",
"retail activity" and "hotel services" shall have the meanings ascribed
by section twenty-five-y of the general city law.
(2) The credit allowed under this section with respect to eligible
aggregate employment shares maintained with respect to particular
premises to which the taxpayer has relocated shall be allowed for the
first taxable year during which such eligible aggregate employment
shares are maintained with respect to such premises and for any of the
twelve succeeding taxable years during which eligible aggregate
employment shares are maintained with respect to such premises; provided
that the credit allowed for the twelfth succeeding taxable year shall be
calculated by multiplying the number of eligible aggregate employment
shares maintained with respect to such premises in the twelfth
succeeding taxable year by the lesser of one and a fraction, the
numerator of which is such number of days in the taxable year of
relocation less the number of days the eligible business maintained
employment shares in the eligible premises in the taxable year of
relocation and the denominator of which is the number of days in such
twelfth succeeding taxable year during which such eligible aggregate
employment shares are maintained with respect to such premises. Except
as provided in subdivision four of this section, if the amount of the
credit allowable under this section for any taxable year exceeds the tax
imposed for such year, the excess may be carried over, in order, to the
five immediately succeeding taxable years and, to the extent not
previously deductible, may be deducted from the taxpayer's tax for such
years.
(3) The credit allowable under this section shall be deducted prior to
the deduction of any other credit allowed by this part.
(4) In the case of a taxpayer that has obtained a certification of
eligibility pursuant to subdivision (b) of section twenty-five-z of the
general city law dated on or after July first, two thousand for a
relocation to eligible premises located within the revitalization area
defined in subdivision (n) of section twenty-five-y of the general city
law, the credits allowed under this section, or in the case of a
taxpayer that has relocated more than once, the portion of such credits
attributed to such certification of eligibility pursuant to subdivision
one of this section, against the tax imposed by this chapter for the
taxable year of such relocation and for the four taxable years
immediately succeeding the taxable year of such relocation, shall be
deemed to be overpayments of tax by the taxpayer to be credited or
refunded, without interest, in accordance with the provisions of section
seventy-seven of this title. For such taxable years, such credits or
portions thereof may not be carried over to any succeeding taxable year;
provided, however, that this subdivision shall not apply to any
relocation for which an application for a certification of eligibility
was not submitted prior to July first, two thousand three, unless the
date of such relocation is on or after July first, two thousand.
§ 4-i. Lower Manhattan relocation and employment assistance credit.
(1) In addition to any other credit allowed by this part, a taxpayer
that has obtained the certifications in accordance with subdivision (b)
of section twenty-five-ee of the general city law shall be allowed a
credit against the tax imposed by this part. The amount of the credit
shall be the amount determined by multiplying three thousand dollars by
the number of eligible aggregate employment shares maintained by the
taxpayer during the taxable year with respect to eligible premises to
which the taxpayer has relocated; provided, however, that no credit
shall be allowed for the relocation of any retail activity or hotel
services; provided, further, that no credit shall be allowed under this
subdivision to any taxpayer that has elected pursuant to subdivision (d)
of section twenty-five-ee of the general city law to take such credit
against a gross receipts tax imposed under a local law enacted pursuant
to subdivision (a) of section twelve hundred one of the tax law. For
purposes of this subdivision, the terms "eligible aggregate employment
shares," "eligible premises," "relocate," "retail activity" and "hotel
services" shall have the meanings ascribed by section twenty-five-dd of
the general city law.
(2) The credit allowed under this section with respect to eligible
aggregate employment shares maintained with respect to eligible premises
to which the taxpayer has relocated shall be allowed for the taxable
year of the relocation and for any of the twelve succeeding taxable
years during which eligible aggregate employment shares are maintained
with respect to eligible premises; provided that the credit allowed for
the twelfth succeeding taxable year shall be calculated by multiplying
the number of eligible aggregate employment shares maintained with
respect to eligible premises in the twelfth succeeding taxable year by
the lesser of one and a fraction the numerator of which is such number
of days in the taxable year of relocation less the number of days the
eligible business maintained employment shares in eligible premises in
the taxable year of relocation and the denominator of which is the
number of days in such twelfth taxable year during which such eligible
aggregate employment shares are maintained with respect to such
premises.
(3) Except as provided in subdivision four of this section, if the
amount of the credit allowable under this section for any taxable year
exceeds the tax imposed for such year, the excess may be carried over,
in order, to the five immediately succeeding taxable years and, to the
extent not previously deductible, may be deducted from the taxpayer's
tax for such years.
(4) The credits allowed under this section, against the tax imposed by
this chapter for the taxable year of the relocation and for the four
taxable years immediately succeeding the taxable year of such
relocation, shall be deemed to be overpayments of tax by the taxpayer to
be credited or refunded, without interest, in accordance with the
provisions of section seventy-seven of this title. For such taxable
years, such credits or portions thereof may not be carried over to any
succeeding taxable year.
(5) The credit allowed under this section shall be deducted after the
credits allowed by section four-h of this part, but prior to the
deduction of any other credit allowed by this part.
§ 5. Reports. 1. Every corporation having an officer, agent or
representative within the city, shall annually on or before March
fifteenth transmit to the director of finance a report in a form
prescribed by him (except that a corporation which reports on the basis
of a fiscal year shall transmit its report within two and one-half
months after the close of its fiscal year), setting forth such
information as the director of finance may prescribe and every taxpayer
which ceases to do business in the city or to be subject to the tax
imposed by this part shall transmit to the director of finance a report
on the date of such cessation or at such other time as he may require
covering each year or period for which no report was theretofore filed.
Every taxpayer shall also transmit such other reports and such facts and
information as the director of finance may require in the administration
of this part. The director of finance may grant a reasonable extension
of time for filing reports whenever good cause exists.
With respect to taxable years ending prior to December thirty-first,
nineteen hundred sixty-six, the returns required to be made and filed
pursuant to this section shall be made and filed on or before the
fifteenth day of the third month following the close of such taxable
year or the sixtieth day following the date this title becomes
effective, whichever is later.
An automatic extension of three months for the filing of its annual
report shall be allowed any taxpayer if, within the time prescribed by
either of the preceding paragraphs, whichever is applicable, such
taxpayer files with the director of finance an application for extension
in such form as he may prescribe by regulation and pays on or before the
date of such filing the amount properly estimated as its tax.
2. Every report shall have annexed thereto a certification by the
president, vice-president, treasurer, assistant treasurer, chief
accounting officer or any other officer of the taxpayer duly authorized
so to act to the effect that the statements contained therein are true.
The fact that an individual's name is signed on a certification of the
report shall be prima facie evidence that such individual is authorized
to sign and certify the report on behalf of the corporation. Blank forms
of reports shall be furnished by the director of finance, on
application, but failure to secure such a blank shall not release any
corporation from the obligation of making any report required by this
part.
3. If the amount of taxable income for any year of any taxpayer, or of
any shareholder of any taxpayer, which has elected to be taxed under
subchapter s of chapter one of the internal revenue code, as returned to
the United States treasury department is changed or corrected by the
commissioner of internal revenue or other officer of the United States
or other competent authority, or where a renegotiation of a contract or
subcontract with the United States results in a change in taxable
income, or where a recovery of a war loss results in a computation or
recomputation of any tax imposed by the United States, or if a taxpayer
or such shareholder of a taxpayer, pursuant to subsection (d) of section
sixty-two hundred thirteen of the internal revenue code, executes a
notice of waiver of the restrictions provided in subsection (a) of said
section, such taxpayer shall report such changed or corrected taxable
income, or the results of such renegotiation, or such computation or
recomputation, or such execution of such notice of waiver and the
changes or corrections of his federal taxable income on which it is
based, within ninety days after such execution or the final
determination of such change or correction or renegotiation, or such
computation, or recomputation or on its next report under this part, or
as required by the director of finance, and shall concede the accuracy
of such determination or state wherein it is erroneous. Any taxpayer
filing an amended return with such department shall also file within
ninety days thereafter an amended report with the director of finance.
4. In the discretion of the director of finance, any taxpayer which
owns or controls either directly or indirectly substantially all the
capital stock of one or more other corporations, or substantially all
the capital stock of which is owned or controlled either directly or
indirectly by one or more other corporations or by interests which own
or control either directly or indirectly substantially all the capital
stock of one or more other corporations, may be required or permitted to
make a report on a combined basis covering any such other corporations
and setting forth such information as the director of finance may
require; provided, however, that no combined report covering any
corporation not a taxpayer shall be required unless the director of
finance deems such a report necessary, because of inter-company
transactions or some agreement, understanding, arrangement or
transaction referred to in subdivision five of this section, in order
properly to reflect the tax liability under this part. In the case of a
combined report the tax shall be measured by the combined entire net
income or combined capital, of all the corporations included in the
report. In computing combined entire net income intercorporate dividends
shall be eliminated, in computing combined business and investment
capital intercorporate stock holdings and intercorporate bills, notes
and accounts receivable and payable and other intercorporate
indebtedness shall be eliminated and in computing combined subsidiary
capital intercorporate stockholdings shall be eliminated.
5. In case it shall appear to the director of finance that any
agreement, understanding or arrangement exists between the taxpayer and
any other corporation or any person or firm, whereby the activity,
business, income or capital of the taxpayer within the city is
improperly or inaccurately reflected, the director of finance is
authorized and empowered, in its discretion and in such manner as it may
determine, to adjust items of income, deductions and capital, and to
eliminate assets in computing any allocation percentage provided only
that any income directly traceable thereto be also excluded from entire
net income, so as equitably to determine the tax. Where (a) any taxpayer
conducts its activity or business under any agreement, arrangement or
understanding in such manner as either directly or indirectly to benefit
its members or stockholders, or any of them, or any person or persons
directly or indirectly interested in such activity or business, by
entering into any transaction at more or less than a fair price which,
but for such agreement, arrangement or understanding, might have been
paid or received therefor, or (b) any taxpayer, a substantial portion of
whose capital stock is owned either directly or indirectly by another
corporation, enters into any transaction with such other corporation on
such terms as to create an improper loss or net income, the director of
finance may include in the entire net income of the taxpayer the fair
profits, which, but for such agreement, arrangement or understanding,
the taxpayer might have derived from such transaction.
6. An action may be brought at any time by the corporation counsel at
the instance of the director of finance as agent and trustee for the
city to compel the filing of reports due under this part.
7. Reports shall be preserved for five years, and thereafter until the
director of finance orders them to be destroyed.
8. Where the state tax commission changes or corrects a taxpayer's
sales and compensating use tax liability with respect to the purchase or
use of items for which a sales or compensating use tax credit against
the tax imposed by this part was claimed, the taxpayer shall report such
change or correction to the commissioner of finance within ninety days
of the final determination of such change or correction, or as required
by the commissioner of finance, and shall concede the accuracy of such
determination or state wherein it is erroneous. Any taxpayer filing an
amended return or report relating to the purchase or use of such items
shall also file within ninety days thereafter a copy of such amended
return or report with the commissioner of finance.
§ 6. Payment and lien of tax. 1. To the extent the tax imposed by
section three of this part shall not have been previously paid pursuant
to section eight of this part,
(a) such tax, or the balance thereof, shall be payable to the
commissioner of finance in full at the time the report is required to be
filed, and
(b) such tax, or the balance thereof, imposed on any taxpayer which
ceases to do business in the city or to be subject to the tax imposed by
this part shall be payable to the commissioner of finance at the time
the report is required to be filed; all other taxes of any such
taxpayer, which pursuant to the foregoing provisions of this section
would otherwise be payable subsequent to the time such report is
required to be filed, shall nevertheless be payable at such time. If the
taxpayer, within the time prescribed by section five of this part, shall
have applied for an automatic extension of time to file its annual
report and shall have paid to the commissioner of finance on or before
the date such application is filed an amount properly estimated as
provided by said section, the only amount payable in addition to the tax
shall be interest at the rate set by the commissioner of finance
pursuant to section eighty-seven of part six, or, if no rate is set, at
the rate of six per centum per annum upon the amount by which the tax,
or the portion thereof payable on or before the date the report was
required to be filed, exceeds the amount so paid. For purposes of the
preceding sentence:
(1) an amount so paid shall be deemed properly estimated if it is
either (A) not less than ninety per centum of the tax as finally
determined (computed without regard to any credit allowable under
section four-a of this part), or (B) not less than the tax shown
(computed without regard to any credit allowable under section four-a of
this part) on the taxpayer's report for the preceding taxable year, if
such preceding year was a taxable year of twelve months; and
(2) the time when a report is required to be filed shall be determined
without regard to any extension of time for filing such report.
2. The director of finance may grant a reasonable extension of time
for payment of any tax imposed by this part under such conditions as it
deems just and proper.
3. Subdivision one of this section shall apply to a taxpayer which has
a right to a credit pursuant to section four-a of this part, except that
the tax, or balance thereof, payable to the director of finance in full
pursuant to subdivision one of this section, at the time the report is
required to be filed, shall be calculated and paid at such time as if
the credit provided for in section four-a of this part were not allowed.
§ 7. Declaration of estimated tax. 1. Every taxpayer subject to the
tax imposed by section three of this part shall make a declaration of
its estimated tax for the current privilege period, containing such
information as the director of finance may prescribe by regulations or
instructions, if such estimated tax can reasonably be expected to exceed
one thousand dollars.
2. The term "estimated tax" means the amount which a taxpayer
estimates to be the tax imposed by section three of this part for the
current privilege period, less the amount which it estimates to be the
sum of any credits allowable against the tax other than the credit
allowable under section four-a of this part.
3. A declaration of estimated tax shall be filed on or before June
fifteenth of the current privilege period in the case of a taxpayer
which reports on the basis of a calendar year, except that if the
requirements of subdivision one are first met:
(a) after June first and before October second of such current
privilege period, the declaration shall be filed on or before October
fifteenth, or
(b) after October first of such current privilege period, the
declaration shall be filed on or before January fifteenth of the
succeeding calendar year.
Notwithstanding any other provision of this subdivision, no
declaration need be filed prior to the sixtieth day after the date this
title becomes effective.
4. A taxpayer may amend a declaration under regulations of the
director of finance.
5. If, on or before February fifteenth of the succeeding year in the
case of a taxpayer which reports on the basis of a calendar year, a
taxpayer files its report for the year for which the declaration is
required, and pays therewith the balance, if any, of the full amount of
the tax shown to be due on the report,
(a) such report shall be considered as its declaration if no
declaration was required to be filed during the calendar or fiscal year
for which the tax was imposed, but is otherwise required to be filed on
or before the fifteenth day of the first month of the succeeding year
pursuant to subdivision three, and
(b) such report shall be considered as the amendment permitted by
subdivision four to be filed on or before the fifteenth day of the first
month of the succeeding year if the tax shown on the report is greater
than the estimated tax shown on a declaration previously made.
6. This section shall apply to privilege periods of twelve months
other than a calendar year by the substitution of the months of such
fiscal year for the corresponding months specified in this section.
7. If the privilege period for which a tax is imposed by section three
of this part is less than twelve months, every taxpayer required to make
a declaration of estimated tax for such privilege period shall make such
a declaration in accordance with regulations of the director of finance.
8. The director of finance may grant a reasonable extension of time,
not to exceed three months, for the filing of any declaration required
pursuant to this section, on such terms and conditions as it may
require.
§ 8. Payments on account of estimated tax. 1. Every taxpayer subject
to the tax imposed by section three of this part shall pay with the
report required to be filed for the preceding privilege period, if any,
or with an application for extension of the time for filing such report,
an amount equal to twenty-five per centum of the preceding year's tax,
computed without regard to the credits provided for in section four-b,
four-c, four-d, four-e, four-f, four-g and four-h of this part if such
preceding year's tax exceeded one thousand dollars.
2. The estimated tax with respect to which a declaration for such
privilege period is required shall be paid, in the case of a taxpayer
which reports on the basis of a calendar year, as follows:
(a) If the declaration is filed on or before June fifteenth, the
estimated tax shown thereon, after applying thereto the amount, if any,
paid during the same privilege period pursuant to subdivision one, shall
be paid in three equal installments. One of such installments shall be
paid at the time of the filing of the declaration, one shall be paid on
the following October fifteenth, and one on the following January
fifteenth.
(b) If the declaration is filed after June fifteenth and not after
October fifteenth of such privilege period, and is not required to be
filed on or before June fifteenth of such period, the estimated tax
shown on such declaration, after applying thereto the amount, if any,
paid during the same privilege period pursuant to subdivision one, shall
be paid in two equal installments. One of such installments shall be
paid at the time of the filing of the declaration and one shall be paid
on the following January fifteenth.
(c) If the declaration is filed after October fifteenth of such
privilege period, and is not required to be filed on or before October
fifteenth of such privilege period, the estimated tax shown on such
declaration, after applying thereto the amount, if any, paid in respect
of such privilege period pursuant to subdivision one, shall be paid in
full at the time of the filing of the declaration.
(d) If the declaration is filed after the time prescribed therefor, or
after the expiration of any extension of time therefor, paragraphs (b)
and (c) of this subdivision shall not apply, and there shall be paid at
the time of such filing all installments of estimated tax payable at or
before such time, and the remaining installments shall be paid at the
times at which, and in the amounts in which, they would have been
payable if the declaration had been filed when due.
3. If any amendment of a declaration is filed, the remaining
installments, if any, shall be ratably increased or decreased (as the
case may be) to reflect any increase or decrease in the estimated tax by
reason of such amendment, and if any amendment is made after October
fifteenth of the privilege period, any increase in the estimated tax by
reason thereof shall be paid at the time of making such amendment.
4. Any amount paid pursuant to subdivision one or the first sentence
of subdivision three shall be applied after payment as a first
installment against the estimated tax of the taxpayer for the current
privilege period shown on the declaration required to be filed pursuant
to section seven of this part or, if no declaration of estimated tax is
required to be filed by the taxpayer pursuant to such section, any such
amount shall be considered a payment on account of the tax shown on the
report required to be filed by the taxpayer for such privilege period.
5. Notwithstanding the provisions of section seventy-nine of this
title or of section three-a of the general municipal law, if an amount
paid pursuant to subdivision one exceeds the tax shown on the report
required to be filed by the taxpayer for the privilege period during
which the amount was paid, interest shall be allowed and paid on the
amount by which the amount so paid pursuant to such subdivision exceeds
such tax, at the rate set by the commissioner of finance pursuant to
section eighty-seven of part six, or, if no rate is set, at the rate of
four per centum per annum from the date of payment of the amount so paid
pursuant to such subdivision to the fifteenth day of the third month
following the close of the privilege period, provided, however, that no
interest shall be allowed or paid under this subdivision if the amount
thereof is less than one dollar or if such interest becomes payable
solely because of a carryback of a net operating loss in a subsequent
privilege period.
6. As used in this section, "the preceding year's tax" means the tax
imposed upon the taxpayer by section three of this part for the
preceding calendar or fiscal year, or, for purposes of computing the
first installment of estimated tax when an application has been filed
for extension of the time for filing the report required to be filed for
such preceding calendar or fiscal year, the amount properly estimated
pursuant to section seven of this part as the tax imposed upon the
taxpayer for such calendar or fiscal year.
7. This section shall apply to a privilege period of less than twelve
months in accordance with regulations of the director of finance.
8. The provisions of this section shall apply to privilege periods of
twelve months other than a calendar year by the substitution of the
months of such fiscal year for the corresponding months specified in
such provisions.
9. The commissioner of finance may grant a reasonable extension of
time, not to exceed six months, for payment of any installment of
estimated tax required pursuant to this section, on such terms and
conditions as it may require, including the furnishing of a bond or
other security by the taxpayer in an amount not exceeding twice the
amount for which any extension of time for payment is granted, provided,
however that interest at the rate set by the commissioner of finance
pursuant to section eighty-seven of part six, or, if no rate is set, at
the rate of six per centum per annum for the period of the extension
shall be charged and collected on the amount for which any extension of
time for payment is granted under this subdivision.
10. A taxpayer may elect to pay any installment of estimated tax prior
to the date prescribed in this section for payment thereof.
11. The portion of an overpayment attributable to a credit allowable
pursuant to section four-a of this part may not be credited against any
payment due under this section.
§ 9. Collection of taxes. Every foreign corporation (other than a
moneyed corporation) subject to the provisions of this part, except a
corporation having a certificate of authority under section two hundred
twelve of the general corporation law or having authority to do business
by virtue of section thirteen hundred five of the business corporation
law, shall file in the department of state a certificate of designation
in its corporate name, signed and acknowledged by its president or a
vice-president or its secretary or treasurer, under its corporate seal,
designating the secretary of state as its agent upon whom process in any
action provided for by this part may be served within this state, and
setting forth an address to which the secretary of state shall mail a
copy of any such process against the corporation which may be served
upon him. In case any such corporation shall have failed to file such
certificate of designation, it shall be deemed to have designated the
secretary of state as its agent upon whom such process against it may be
served; and until a certificate of designation shall have been filed the
corporation shall be deemed to have directed the secretary of state to
mail copies of process served upon him to the corporation at its last
known office address within or without the state. When a certificate of
designation has been filed by such corporation the secretary of state
shall mail copies of process thereafter served upon him to the address
set forth in such certificate. Any such corporation, from time to time,
may change the address to which the secretary of state is directed to
mail copies of process, by filing a certificate to that effect executed,
signed and acknowledged in like manner as a certificate of designation
as herein provided. Service of process upon any such corporation or upon
any corporation having a certificate of authority under section two
hundred twelve of the general corporation law or having authority to do
business by virtue of section thirteen hundred five of the business
corporation law, in any action commenced at any time pursuant to the
provisions of this part, may be made by either (a) personally delivering
to and leaving with the secretary of state, a deputy secretary of state
or with any person authorized by the secretary of state to receive such
service duplicate copies thereof at the office of the department of
state in the city of Albany, in which event the secretary of state shall
forthwith send by registered mail, return receipt requested, one of such
copies to the corporation at the address designated by it or at its last
known office address within or without the state, or (b) personally
delivering to and leaving with the secretary of state, a deputy
secretary of state or with any person authorized by the secretary of
state to receive such service, a copy thereof at the office of the
department of state in the city of Albany and by delivering a copy
thereof to, and leaving such copy with, the president, vice-president,
secretary, assistant secretary, treasurer, assistant treasurer, or
cashier of such corporation, or the officer performing corresponding
functions under another name, or a director or managing agent of such
corporation, personally without the state. Proof of such personal
service without the state shall be filed with the clerk of the court in
which the action is pending within thirty days after such service, and
such service shall be complete ten days after proof thereof is filed.
§ 10. Limitations of time. The provisions of the civil practice law
and rules relative to the limitation of time of enforcing a civil remedy
shall not apply to any proceeding or action taken to levy, appraise,
assess, determine or enforce the collection of any tax or penalty
prescribed by this part, provided, however, that as to real estate in
the hands of persons who are owners thereof who would be purchasers in
good faith but for such tax or penalty and as to the lien on real estate
of mortgages held by persons who would be holders thereof in good faith
but for such tax or penalty, all such taxes and penalties shall cease to
be a lien on such real estate as against such purchasers or holders
after the expiration of ten years from the date such taxes became due
and payable. The limitations herein provided for shall not apply to any
transfer from a corporation to a person or corporation with intent to
avoid payment of any taxes, or where with like intent the transfer is
made to a grantee corporation, or any subsequent grantee corporation,
controlled by such grantor or which has any community of interest with
it, either through stock ownership or otherwise.
PART III
FINANCIAL CORPORATION TAX
SUBPART 1
TAX ON STATE BANKS, TRUST COMPANIES, FINANCIAL CORPORATIONS
AND SAVINGS AND LOAN ASSOCIATIONS
§ 11. Definitions. When used in this subpart:
1. The term "financial corporation" means every corporation doing a
banking business as defined in this section, other than a national
banking association, a trust company all of the capital stock of which
is owned by not less than twenty savings banks organized under a law of
this state, or a corporation taxable under part two of this title, and
shall include the mortgage facilities corporation created by chapter
five hundred sixty-four of the laws of nineteen hundred fifty-six.
2. The word "paid, " for the purpose of the deductions and credits
under this subpart, means "paid or accrued" or "paid or incurred," and
the terms "paid or incurred" and "paid or accrued" shall be construed
according to the method of accounting upon the basis of which the net
income is computed, under this subpart. The term "received," for the
purpose of the computation of net income under this subpart means
"received or accrued" and the term "received or accrued" shall be
construed according to the method of accounting upon the basis of which
the net income is computed under this subpart.
3. The word "dividend" means any distribution made by a corporation to
its shareholders or members, out of its earnings or profits, whether in
cash, or in property other than stock of the corporation.
4. The words "doing a banking business" means doing such business as a
corporation may be created to do under articles three, five, five-a, six
and seven of the banking law, or doing any business which a corporation
is authorized by such articles to do.
5. The words "foreign banker doing a banking business" in the city,
include every foreign corporation doing a banking business in the city,
except a national banking association.
6. The words "savings and loan association" means every corporation
doing such business as a corporation may be created to do under article
ten of the banking law, including every federal savings and loan
association organized under authority of the United States.
§ 12. Tax based on net income; imposition; minimum tax; new
incorporations; dissolution; consolidations; mergers; etc. 1. For the
privilege of doing business in the city:
(a) Every bank and savings and loan association organized under the
authority of this state;
(b) Every trust company incorporated, organized or formed under, by or
pursuant to a law of the state, other than a trust company all of the
stock of which is owned by not less than twenty savings banks organized
under a law of the state, and every domestic corporation authorized to
do a trust company's business solely or in connection with any other
business, under a general or special law of the state;
(c) Every other domestic financial corporation;
(d) Every incorporated foreign banker doing a banking business and
every other foreign financial corporation; and
(e) Every federal savings and loan association located within the
city,
shall annually pay a tax at the rate of four and one-half per centum
except that for the years nineteen hundred seventy-one and those
following, as an alternative, at the rate of five and sixty-three one
hundredths per centum, to be computed as provided in this subpart, upon
the basis of its net income for each calendar year, beginning with the
calendar year nineteen hundred sixty-six, next preceding the date when
such tax becomes due and, if the taxpayer is required to file a
declaration of estimated tax and to make payments on account of such
estimated tax as provided by section thirty-five of this part, upon the
basis of its net income for the calendar year with respect to which such
declaration is required to be filed.
2. Every such corporation for the privilege of doing business in the
city and every federal savings and loan association located in the city
shall be subject to a minimum tax of not less than ten dollars and not
less than one mill or, as an alternative for the years nineteen hundred
seventy-one and those following, a minimum tax of not less than twelve
and one-half dollars and not less than one and one quarter mills upon
each dollar of such a part of its issued capital stock on the last day
of the calendar year preceding that in which such tax becomes due, at
its face value, as the gross income of such corporation derived from
business carried on within the city, during such calendar year, bears to
its gross income derived from all business, both within and without the
city, during said year, but if such a corporation has stock without par
value, such stock shall be taken at its actual or market value, and not
less than five dollars per share, as may be determined by the director
of finance; except that a savings bank and savings and loan association
shall be subject to a minimum tax of not less than ten dollars and not
less than an amount equal to two per centum of the amount of interest or
dividends credited by it by depositors or shareholders during the
calendar year preceding that in which such tax becomes due or, as an
alternative, for the years nineteen hundred seventy-one and those
following, a minimum tax of not less than twelve and one-half dollars
and not less than an amount equal to two and one-half per centum of the
amount of interest or dividends credited to by it to depositors or
shareholders during the calendar year preceding that in which such tax
becomes due, provided, that, in determining such amount, each interest
or dividend credit to a depositor or shareholder shall be deemed to be
the interest or dividend actually credited or the interest or dividend
which would have been credited if it had been computed and credited at
the rate of two per centum per annum, whichever is less, and except also
that in the case of a trust company or savings bank incorporated in the
calendar year preceding that in which its first return under this
subpart shall be due and after the thirtieth day of June in such year,
the minimum tax, computed as in this subdivision provided, shall be
reduced one-twelfth for each month, or major portion thereof, subsequent
to said thirtieth day of June during which such trust company or savings
bank did not exercise the privilege of doing business in the city.
3. For the privilege of doing business in the city, every such
domestic corporation, except trust companies and savings banks, shall be
subject to a tax for the calendar year in which its organization
certificate is filed, and, for the privilege of doing business in the
city, every such foreign corporation shall be subject to a tax for the
calendar year in which it first does business in the city, and, every
federal savings and loan association located within the city shall be
subject to a tax for the calendar year in which it first becomes located
within the city, computed in the same manner and at the same rate as the
minimum tax under subdivision two of this section, except that the
income forming the basis for proration shall be the income for such
calendar year, and the issued capital stock shall be taken as of the
last day of such calendar year; provided, however, that the tax so
computed shall be reduced one-twelfth for each month, or major portion
thereof, in such calendar year, during which such corporation was not
doing business in the city, or, if a federal savings and loan
association, was not located in the city, and in no event shall the tax
be less than ten dollars or, as an alternative, for the year nineteen
hundred seventy-one and those following, not less than twelve and
one-half dollars.
4. For the privilege of doing business in the city, every such trust
company and savings bank which shall become incorporated between the
thirty-first day of December and the succeeding first day of July, shall
be subject to a tax for such period, computed in the same manner and at
the same rate as the minimum tax under subdivision two of this section,
except that the income forming the basis for proration shall be the
income for such period; and the issued capital stock, or interest
credited to depositors of a savings bank, shall be taken as of the last
day of such period; provided, however, that the tax so computed shall be
reduced one-half and an additional one-twelfth for each month, or major
portion thereof, in such period, during which such trust company or
savings bank was not doing business in the city, and in no event shall
the tax be less than ten dollars or, as an alternative, for the year
nineteen hundred seventy-one and those following, not less than twelve
and one-half dollars.
5. For the privilege of doing business in the city, every such
corporation, except trust companies and savings banks, which shall be
dissolved between the thirty-first day of December and the succeeding
second day of September, and shall not become merged or consolidated
with another corporation taxable under this subpart and, every such
foreign corporation which shall cease to do business in the city during
the same period, and every federal savings and loan association which
ceases to be located in the city during the same period, and shall not
become merged or consolidated with another corporation taxable under
this subpart, shall pay a tax for the period from the thirty-first day
of December up to the time of dissolution, ceasing to do business in the
city, or ceasing to be located in the city, as the case may be, equal to
that which would have been payable had it not been dissolved, ceased to
do business in the city, or ceased to be located in the city, except
that such tax shall be reduced one-third and an additional one-twelfth
for each month, or major portion thereof, prior to such succeeding
second day of September, during which such corporation was not doing
business in the city, or was not located in the city, and in no event
shall the tax be less than ten dollars or, as an alternative, for the
year nineteen hundred seventy-one and those following, not less than
twelve and one-half dollars. If such dissolution or cessation occurs
between the fifteenth day of March and the second day of September, and
if such corporation shall have filed its return on or before the
fifteenth day of March as required by section thirty-two of this part,
it may file a claim for refund as provided in section seventy-eight of
this title, showing any reduction in tax to which it may be entitled as
provided in the preceding sentence; and if it shall be made to appear
that the amount of tax due is less than the amount as computed on the
basis of the original return, the director of finance shall adjust the
computation of tax accordingly. If the amount of tax as so adjusted
shall be less than theretofore amount heretofore paid, the excess shall
be refunded by the comptroller as provided in subdivision one of section
seventy-seven of this title.
6. Every such trust company and savings bank, which shall be
dissolved, and shall not become merged or consolidated with another
corporation taxable under this subpart, shall, if dissolution takes
place between the thirtieth day of June and the succeeding first day of
January, be subject to a tax, for that part of such period in which it
had been doing business, computed in the same manner and at the same
rate as the minimum tax under subdivision two of this section, except
that the income forming the basis for proration shall be the income for
the calendar year in which such dissolution occurs; and the issued
capital stock, or interest credited to depositors of a savings bank,
shall be taken as of the date of dissolution; provided, however, that
the tax so computed shall be reduced one-half and an additional
one-twelfth for each month, or major portion thereof, between the date
of dissolution and the succeeding first day of January. If dissolution
occurs between the thirty-first day of December and the succeeding
sixteenth day of March, such trust company and savings bank shall be
subject to the same tax that would have been due from it on or before
the fifteenth day of March had it not been dissolved, except that such
tax shall be reduced one-twelfth for each month, or major portion
thereof, from the date of dissolution to the succeeding first day of
July, and shall be for the period beginning on the preceding first day
of July and ending on the date of dissolution. In no event shall the tax
under this subdivision be less than ten dollars or, as an alternative,
for the year nineteen hundred seventy-one and those following, not less
than twelve and one-half dollars.
7. In the case of a consolidation or merger of taxpayers, or in case a
national bank taxable under subpart two of this part shall be
consolidated or merged with a taxpayer under this subpart, or in case of
a series of such transactions, there shall be added to the net income of
the taxpayer resulting from such consolidations or mergers the net
income of the taxpayers which are consolidated or merged for the period
for which the taxpayer resulting from such consolidation or merger is
required to render any return under this subpart, except that net income
shall not be included if it has already been used as the basis for a tax
under this subpart, and the tax payable on the filing of such return
shall be based upon the entire net income reported therein. The
acquisition by a taxpayer, directly or indirectly, of the assets or
franchises of another taxpayer or national bank shall be deemed a merger
for the purposes of this section.
8. The tax imposed by this subpart shall be for the calendar year next
preceding the year in which it becomes due; except that with respect to
corporations subject to a tax imposed under subdivisions three, four,
five or six of this section, the tax shall be for the period therein
specified, and except that with respect to corporations required to file
a declaration of estimated tax and to make payments on account of such
estimated tax as provided by section thirty-five of this part, all
payments of tax within a calendar year, whether computed on the basis of
net income for the current calendar year or on the basis of net income
for the preceding calendar year, shall be for the calendar year in which
the payments are required to be made.
9. In the event that it shall be finally determined by a court of
competent jurisdiction that the taxes imposed on national banking
associations by subpart two of this part are unconstitutional or invalid
for the reason that they are not in conformity with the provisions of
section fifty-two hundred nineteen of the United States revised
statutes, then, in lieu of the taxes imposed by the provisions of this
subpart, every corporation that otherwise would have been subject to tax
under this subpart shall be subject to the tax imposed under part two as
of the effective date of part two, and all of the provisions of part
two, unless clearly inappropriate, shall be applicable except
subdivision four of section three; and, in such event, any payments
made, reports or returns filed or any act of the director of finance or
of a taxpayer purportedly under this part shall be treated as though
made, filed or done pursuant to part two.
10. Notwithstanding the provisions of subdivisions one and two, for
the years nineteen hundred seventy-three and those following, such city
may impose, by local law, a surtax of fifteen per centum of the
percentage of tax in effect for the year nineteen hundred seventy-two.
§ 13. Years for which imposed. The tax imposed by section twelve of
this part is imposed for each calendar year beginning with the calendar
year nineteen hundred sixty-six.
§ 14. Ascertainment of gain or loss. 1. For the purpose of
ascertaining the gain derived or loss sustained from the sale or other
disposition of property, real, personal or mixed, the basis shall be the
cost thereof, or the inventoried value if the inventory is made in
accordance with section seventeen of this part.
2. Notwithstanding subdivision one of this section, with respect to
gain derived from the sale or other disposition of any property acquired
prior to January first, nineteen hundred sixty-six, except stock in
trade of the taxpayer or other property of a kind which would properly
be included in the inventory of the taxpayer if on hand at the close of
the taxable year, or property held by the taxpayer primarily for sale to
customers in the ordinary course of its trade or business, and accounts
or notes receivable acquired in the ordinary course of trade or business
from the sale of such stock in trade or property, or for services
rendered, net income shall not include
(a) That portion of the gain included in determining net income
pursuant to subdivision one of this section with respect to each such
property, which exceeds
(b) The amount of gain that would be included in determining net
income pursuant to subdivision one of this section with respect to each
such property if the basis of such property on the date of sale or other
disposition were equal to its fair market value on January first,
nineteen hundred sixty-six, plus or minus all adjustments to basis made
with respect to each such property in computing net income for periods
on or after January first, nineteen hundred sixty-six;
provided that the total adjustment to net income provided by this
subdivision shall not exceed the amount of the taxpayer's net gain from
the sale or other disposition of all such property, as determined
pursuant to subdivision one of this section.
3. In the case of any bond, with respect to which a deduction for
amortizable bond premium is allowable under subdivision nine of section
twenty-one of this part, the basis for determining gain or loss shall be
reduced by the total amount of such deductions so allowable.
§ 15. Exchange of property.--Upon the sale or exchange of property the
entire amount of the gain or loss, determined under section fourteen,
shall be recognized, except as hereinafter provided in this section:
1. No gain or loss shall be recognized if common stock in a
corporation is exchanged solely for common stock in the same
corporation, or if preferred stock in a corporation is exchanged solely
for preferred stock in the same corporation;
2. No gain or loss shall be recognized if stock or securities in a
corporation a party to a reorganization are, in pursuance of the plan of
reorganization, exchanged solely for stock or securities in such
corporation or in another corporation a party to the reorganization;
3. No gain or loss shall be recognized if a taxpayer, a party to a
reorganization, exchanges property, in pursuance of the plan of
reorganization, solely for stock or securities in another corporation a
party to the reorganization; and
4. No gain or loss shall be recognized if property is transferred to a
corporation by a taxpayer solely in exchange for stock or securities in
such corporation, and immediately after the exchange such taxpayer is in
control of the corporation; but in the case of an exchange by a taxpayer
and one or more other corporations or persons this subdivision shall
apply only if the amount of the stock and securities received by each is
substantially in proportion to its interest in the property prior to the
exchange.
5. If property (as a result of its destruction in whole or in part,
theft or seizure, or an exercise of the power of requisition or
condemnation, or the threat of imminence thereof) is compulsorily or
involuntarily converted into property similar or related in service or
use to the property so converted, or into money which is forthwith in
good faith, under regulations prescribed by the director of finance,
expended in the acquisition of other property similar or related in
service or use to the property so converted, or in the acquisition of
control of a corporation owning such other property, or in the
establishment of a replacement fund, no gain or loss shall be
recognized. If any part of the money is not so expended, the gain, if
any, shall be recognized, but in an amount not in excess of the money
which is not so expended.
6. If there is distributed, in pursuance of a plan of reorganization,
to a taxpayer shareholder in a corporation a party to the
reorganization, stock or securities in such corporation or in another
corporation a party to the reorganization, without the surrender by such
taxpayer shareholder of stock or securities in such a corporation, no
gain to the distributee from the receipt of such stock or securities
shall be recognized.
7. If an exchange would be within the provisions of subdivision one,
two, or four of this section if it were not for the fact that the
property received in exchange consists not only of property permitted by
such subdivision to be received without the recognition of gain, but
also of other property or money, then the gain, if any, to the recipient
shall be recognized, but in an amount not in excess of the sum of such
money and the fair market value of such other property.
8. If an exchange would be within the provisions of subdivision three
of this section if it were not for the fact that the property received
in exchange consists not only of stock or securities permitted by such
subdivision to be received without the recognition of gain, but also of
other property or money, then--
(a) If the taxpayer receiving such other property or money distributes
it in pursuance of the plan of reorganization, no gain to the taxpayer
shall be recognized from the exchange, but
(b) If the taxpayer receiving such other property or money does not
distribute it in pursuance of the plan of reorganization, the gain, if
any, to the taxpayer shall be recognized, but in an amount not in excess
of the sum of such money and the fair market value of such other
property so received, which is not so distributed.
9. If an exchange would be within the provisions of subdivision one,
two, three, or four of this section if it were not for the fact that the
property received in exchange consists not only of property permitted by
such subdivision to be received without the recognition of gain or loss,
but also of other property or money, then no loss from the exchange
shall be recognized.
10. As used in this section:
The term "reorganization" means (a) a merger or consolidation
(including the acquisition by one corporation of at least a majority of
the voting stock and at least a majority of the total number of shares
of all other classes of stock of another corporation, or substantially
all the properties of another corporation), or (b) a transfer by a
corporation of all or a part of its assets to another corporation if
immediately after the transfer the transferor or its stockholders or
both are in control of the corporation to which the assets are
transferred, or (c) a recapitalization, or (d) a mere change in
identity, form or place of organization, however effected;
The term "a party to a reorganization" includes a corporation
resulting from a reorganization and includes both corporations in the
case of an acquisition by one corporation of at least a majority of the
voting stock and at least a majority of the total number of shares of
all other classes of stock of another corporation; and
The term "control" means the ownership of at least eighty per centum
of the voting stock and at least eighty per centum of the total number
of shares of all other classes of stock of the corporation.
11. No gain or loss shall be recognized upon the receipt by a taxpayer
of property distributed in complete liquidation of a corporation. For
the purposes of this paragraph a distribution shall be considered to be
in complete liquidation only if--
(a) the taxpayer receiving such property was, on the date of the
adoption of the plan of liquidation, and has continued to be at all
times until the receipt of the property, the owner of stock (in such
corporation) possessing at least eighty per centum of the total combined
voting power of all classes of stock entitled to vote and the owner of
at least eighty per centum of the total number of shares of all other
classes of stock (except nonvoting stock which is limited and preferred
as to dividends), and was at no time on or after the date of the
adoption of the plan of liquidation and until the receipt of the
property the owner of a greater percentage of any class of stock than
the percentage of such class owned at the time of the receipt of the
property; and either
(b) the distribution is by such corporation in complete cancellation
or redemption of all its stock, and the transfer of all the property
occurs within the base year; in such case the adoption by the
shareholders of the resolution under which is authorized the
distribution of all the assets of the corporation in complete
cancellation or redemption of all its stock, shall be considered an
adoption of a plan of liquidation, even though no time for the
completion of the transfer of the property is specified in such
resolution; or
(c) such distribution is one of a series of distributions by such
corporation in complete cancellation or redemption of all its stock in
accordance with a plan of liquidation under which the transfer of all
the property under the liquidation is to be completed within three years
from the close of the year during which is made the first of the series
of distributions under the plan, except that if such transfer is not
completed within such period, or if the taxpayer does not continue
qualified under paragraph (a) until the completion of such transfer, no
distribution under the plan shall be considered a distribution in
complete liquidation.
If such transfer of all the property does not occur within the year,
the director of finance may require of the taxpayer such bond, or waiver
of the statute of limitations on assessment and collection, or both, as
he may deem necessary to insure, if the transfer of the property is not
completed within such three year period, or if the taxpayer does not
continue qualified under paragraph (a) until the completion of such
transfer, the assessment and collection of all taxes then imposed under
this subpart for such year or subsequent years, to the extent
attributable to property so received. A distribution otherwise
constituting a distribution in complete liquidation within the meaning
of this paragraph shall not be considered as not constituting such a
distribution merely because it does not constitute a distribution or
liquidation within the meaning of the corporate law under which the
distribution is made; and for the purposes of this paragraph a transfer
of property of such corporation to the taxpayer shall not be considered
as not constituting a distribution (or one of a series of distributions)
in complete cancellation or redemption of all the stock of such
corporation, merely because the carrying out of the plan involves (1)
the transfer under the plan to the taxpayer by such corporation of
property, not attributable to shares owned by the taxpayer, upon an
exchange described in subdivision three of this section, and (2) the
complete cancellation or redemption under the plan, as a result of
exchanges described in subdivision two of this section, of the shares
not owned by the taxpayers.
§ 16. Exchange of property when no gain or loss is realized. When
property is exchanged for other property and no gain or loss is realized
under the provisions of the preceding section, the property received
shall be treated as taking the place of the property exchanged therefor.
Where no gain or loss is realized under the provisions of subdivision
eleven of the preceding section, the basis of the property received
shall be the same as it would be in the hands of the transferror
determined in accordance with the provisions of section fourteen of this
part.
§ 17. Inventory. Whenever in the opinion of the director of finance
the use of inventories is necessary in order clearly to determine the
income of any taxpayer, inventory shall be taken by such taxpayer upon
such basis as the director of finance may prescribe, conforming as
nearly as may be to the best accounting practice in the banking business
and most clearly reflecting the income.
§ 18. Net income defined. The term "net income" means the gross
income of a taxpayer less the deductions allowed by this subpart.
§ 19. Computation of net income. The net income shall be computed in
accordance with the method of accounting regularly employed in keeping
the books of such taxpayer; but if no such method of accounting has been
so employed, or if the method employed does not clearly reflect the
income, the computation shall be made upon such basis and in such manner
as in the opinion of the director of finance does clearly reflect the
income. In determining net income, war losses, taxation of property
recovered, and basis of property shall be treated in substantially the
same manner as such losses, recoveries and basis are treated under the
applicable provisions of section thirteen hundred thirty-one of the
internal revenue code.
§ 20. Gross income defined. 1. The term "gross income" includes gains,
profits and income derived from the business, of whatever kind and in
whatever form paid, including gains, profits or income from dealings in
property, whether real or personal, or gains, profits or income received
as compensation for services, as interest, rents, commissions, brokerage
or other fees, or otherwise in carrying on such business, including all
dividends received on stocks and all interest received from federal,
state, municipal or other bonds.
2. If the gross income of a taxpayer is derived from business carried
on both within and without the city, "gross income" means that
proportion thereof which is derived from business carried on within the
city, to be allocated and determined on the basis of separate accounting
for each office or branch or, at the election of the taxpayer, under
rules and regulations prescribed by the director of finance.
3. "Gross income" of a savings bank shall include the amount received
by it in any taxable year as a distribution in liquidation of the mutual
savings bank fund.
§ 21. Deductions. In computing net income there shall be allowed as
deductions:
1. All the ordinary and necessary expenses paid or incurred during the
year in carrying on business, including a reasonable allowance for
salaries or other compensation for personal services actually rendered,
and including rentals or other payments required to be made as a
condition to the continued use or possession for business purposes of
property to which the taxpayer has not taken or is not taking title or
in which such taxpayer has no equity.
2. All interest paid or accrued during the year on indebtedness.
3. Taxes, other than taxes on income or profits paid or accrued within
the year, imposed, first, by the authority of the United States, or of
any of its possessions, or, second, by the authority of any state, or
territory, or any county, school district, municipality, or other taxing
subdivisions of any state or territory, not including those assessed
against local benefits of a kind tending to increase the value of the
property assessed, or, third, by the authority of any foreign
government, or, fourth, under the franchise tax on banking corporations
imposed by article thirty-two of the tax law, or, fifth, any tax imposed
under this subpart.
4. Losses sustained during the year and not compensated for by
insurance or otherwise, if incurred in business; unless in order to
clearly reflect the income the losses should in the opinion of the
director of finance be accounted for as of a different period. No
deduction shall be allowed for any loss claimed to have been sustained
in any sale or other disposition of shares of stock or securities where
it appears that within thirty days before or after the date of such sale
or other disposition the taxpayer has acquired substantially identical
property, and the property so acquired is held by the taxpayer for any
period after such sale or other disposition, unless such claim is made
with respect to a transaction made in the ordinary course of business.
If such acquisition is to the extent of part only of substantially
identical property, only a proportionate part of the loss shall be
disallowed.
5. Debts ascertained to be worthless and charged off within the year;
or in the discretion of the director of finance a reasonable addition to
a reserve for bad debts. When satisfied that a debt is recoverable only
in part, the director of finance may allow such debt to be charged off
in part.
6. A reasonable allowance for the exhaustion, wear and tear of
property used in business, including a reasonable allowance for
obsolescence. In the case of any such property acquired before January
first, nineteen hundred sixty-six, the amount of such deduction shall be
equal to the deduction properly taken for such property in reporting the
tax due pursuant to article nine-b of the tax law. With respect to
property such as described in subdivision twelve of this section, this
deduction may be computed and allowed as provided therein.
7. If the gross income be derived from business carried on within and
without the city, the deductions allowed by this section shall be
allocated and determined on the basis of separate accounting for each
office or branch or, at the election of the taxpayer, under rules and
regulations to be prescribed by the director of finance.
8. In the case of any taxpayer who establishes or maintains a pension
trust to provide for the payment of reasonable pensions to its
employees, there shall be allowed as a deduction (in addition to the
contributions to such trust during the taxable year to cover the pension
liability accruing during the year, allowed as a deduction under
subdivision one of this section) a reasonable amount transferred or paid
into such trust during the taxable year in excess of such contributions,
but only if such amount (a) has not theretofore been allowable as a
deduction, and (b) is apportioned in equal parts over a period of ten
consecutive years beginning with the year in which the transfer or
payment is made, or, under regulations of the director of finance,
covers not more than one-tenth of the total pension liability with
respect to services rendered prior to such taxable year; provided that
said deduction shall be allowable only with respect to a taxable year
(whether the year of the transfer or payment or a subsequent year) of
the taxpayer ending within or with a taxable year of the trust with
respect to which the trust, by reason of its purposes or activities, is
exempt from federal income tax.
9. The amount of the amortizable bond premium on a bond for the year
shall be allowed as a deduction as hereinafter provided. In computing
such deduction, (a) the amount of the bond premium shall be determined
with reference to the amount of the basis (for determining loss on sale
or exchange) of such bond, and with reference to the amount payable on
maturity or on earlier call date, with adjustments proper to reflect
unamortized bond premium with respect to the bond, for the period prior
to the date as of which this subdivision becomes applicable with respect
to the taxpayer with respect to such bond, and (b) the amortizable bond
premium of the year shall be the amount of the bond premium attributable
to such year. The determination required in the preceding sentence shall
be made in accordance with the method of amortizing bond premium
regularly employed by the holder of such bond, if such method is
reasonable, and in all other cases in accordance with regulations of the
director of finance prescribing reasonable methods of amortizing bond
premium. This subdivision shall apply only if the taxpayer shall so
elect, in accordance with regulations of the director of finance, and
such election shall be made separately with respect to (1) bonds, the
interest of which is wholly taxable, and (2) bonds, the interest of
which is wholly or partially tax exempt, for purposes of the income tax
imposed by chapter one of the internal revenue code. If such election is
made with respect to any bond of the taxpayer described in clauses one
or two hereof, it shall also apply to all bonds in the same class held
by the taxpayer at the beginning of the first year to which the election
applies and to all such bonds thereafter acquired by it and shall be
binding for all subsequent years with respect to all such bonds of the
taxpayer, unless, upon the application by the taxpayer, the director of
finance permits the taxpayer, subject to such conditions as the director
of finance deems necessary, to revoke such election. As used in this
subdivision the term "bond" means any bond, debenture, note or
certificate or other evidence of indebtedness, issued by any corporation
and bearing interest (including any like obligation issued by a
government or political subdivision thereof), with interest coupons or
in registered form, but does not include any such obligation which
constitutes stock in trade of the taxpayer or any such obligation of a
kind which would properly be included in the inventory of the taxpayer
if on hand at the close of the year, or any such obligation held by the
taxpayer primarily for sale to customers in the ordinary course of its
trade or business.
10. In the case of a savings bank and savings and loan association,
amounts paid or credited to depositors or holders of accounts as
interest or dividends on their deposits or withdrawable accounts, if
such amounts are withdrawable on demand subject only to customary notice
of intention to withdraw.
11. A savings bank and savings and loan association may deduct in any
taxable year the amount of the repayment of any loan or advance from the
mutual savings bank fund in computing its net income and the amount of
interest or dividends subject to the minimum tax under subdivision three
of section twelve.
12. (a) At the election of the taxpayer there shall be deducted from
gross income, or if gross income is derived from business carried on
within and without this city, from the portion thereof allocated within
the city, depreciation with respect to any property such as described in
paragraph (b) of this subdivision, not exceeding twice the depreciation
allowed with respect to the same property for federal income tax
purposes.
(b) Such deduction shall be allowed only with respect to tangible
property which is depreciable pursuant to section one hundred
sixty-seven of the internal revenue code, having a situs in this city
and used in the taxpayer's business, (i) the construction,
reconstruction or erection of which is completed after December
thirty-first, nineteen hundred sixty-five, and then only with respect to
that portion of the basis thereof which is properly attributable to such
construction, reconstruction or erection after December thirty-first,
nineteen hundred sixty-five, or (ii) acquired after December
thirty-first, nineteen hundred sixty-five, by purchase as defined in
section one hundred seventy-nine (d) of the internal revenue code, if
the original use of such property commenced with the taxpayer, commenced
in this city and commenced after such date.
(c) If the deduction allowable for any taxable year pursuant to this
subdivision exceeds the taxpayer's net income computed without the
allowance of such deduction and without the allowance of any deduction
pursuant to subdivision six of this section with references to the same
property, the excess may be carried over to the following taxable year
or years and may be deducted in computing net income for such year or
years.
(d) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to this
subdivision, the gain or loss thereon shall be computed by adjusting the
basis of such property to reflect the deductions so allowed, and if the
taxpayer's gross income is derived from business carried on both within
and without the city, shall be allocated within the city. Provided,
however, that no loss shall be recognized for the purposes of this
paragraph with respect to a sale or other disposition of property to a
person whose acquisition thereof is not a purchase as defined in section
one hundred seventy-nine (d) of the internal revenue code.
§ 22. Items not deductible. In computing net income no deduction shall
in any case be allowed in respect of:
(a) Any amount paid out for new buildings or for permanent
improvements or betterments made to increase the value of any property.
(b) Any amount expended in restoring property or in making good the
exhaustion thereof for which an allowance is or has been made.
SUBPART 2
TAX ON NATIONAL BANKING ASSOCIATIONS
AND PRODUCTION CREDIT ASSOCIATIONS
§ 23. Imposition of tax. 1. Pursuant to the authority conferred by
section fifty-two hundred nineteen of the United States revised statutes
and in conformity with the provisions contained in subdivision c of
clause one of such section, every national banking association organized
under authority of the United States and located within the city, shall
annually pay a tax, measured by its net income, to be computed, as
provided in this subpart, at the rate of four and one-half per centum
except that for the year nineteen hundred seventy-one and those
following, as an alternative, at the rate of five and sixty-three one
hundredths per centum, upon the basis of its net income for the calendar
year next preceding the date when such tax becomes due. Such tax shall
be for the calendar year next preceding the year in which it becomes
due; except that with respect to national banking associations required
to file a declaration of estimated tax and to make payments on account
of such estimated tax in accordance with the provisions of section
thirty-five of this part, all payments of tax within a calendar year,
whether computed on the basis of net income for the current calendar
year or on the basis of net income for the preceding calendar year,
shall be for the calendar year in which the payments are required to be
made. If, however, such a national banking association shall be
dissolved between the thirty-first day of December and the succeeding
second day of September, and shall not become merged or consolidated
with a corporation taxable under subpart one of this part, it shall pay
a tax for the period from the thirty-first day of December up to the
time of dissolution equal to that which would have been payable had it
not been dissolved, except that such tax shall be reduced one-third and
an additional one-twelfth for each month, or major portion thereof,
prior to such succeeding second day of September, during which such
corporation was so dissolved. If such dissolution occurs between the
fifteenth day of March and the second day of September, and if such
corporation shall have filed its return on or before the fifteenth day
of March as required by sections thirty and thirty-two of this part, it
may file a claim for refund as provided in section seventy-eight of this
title, showing any reduction in tax to which it may be entitled as
provided in the preceding sentence; and if it shall be made to appear
that the amount of tax due is less than the amount as computed on the
basis of the original return, the director of finance shall adjust the
computation of tax accordingly. If the amount of tax as so adjusted
shall be less than the amount theretofore paid, the excess shall be
refunded by the comptroller as provided in subdivision one of section
seventy-seven of this title.
1-a. Notwithstanding the provisions of subdivision one, for the year
nineteen hundred seventy-three and those following, such city may
impose, by local law, a surtax of fifteen per centum of the percentage
of tax in effect for the year nineteen hundred seventy-two.
2. In the event that the taxes imposed by this subpart shall be
finally determined to be unconstitutional or invalid for the reason that
they do not conform with the provisions of section fifty-two hundred
nineteen of the United States revised statutes, then, in lieu of the
taxes imposed by the provisions of this subpart, every national banking
association and every production credit association that otherwise would
have been subject to tax under this subpart shall be subject to the tax
imposed under part two as of the effective date of part two, and all of
the provisions of part two, unless clearly inappropriate, shall be
applicable except subdivision four of section three; and, in such event,
any payments made, reports or returns filed or any act of the director
of finance or of a taxpayer purportedly under this part shall be treated
as though made, filed or done pursuant to part two.
§ 24. Years for which imposed. The tax imposed by section
twenty-three of this part is imposed for each calendar year beginning
with the calendar year nineteen hundred sixty-six.
§ 25. Ascertainment of gain or loss; exchange of property. 1. For the
purpose of ascertaining the gain derived or loss sustained from the sale
or other disposition of property, real, personal or mixed, the basis
shall be the cost thereof, or the inventoried value if the inventory is
made in accordance with section twenty-six of this part.
2. Notwithstanding subdivision one of this section, with respect to
gain derived from the sale or other disposition of any property acquired
prior to January first, nineteen hundred sixty-six, except stock in
trade of the taxpayer or other property of a kind which would properly
be included in the inventory of the taxpayer if on hand at the close of
the taxable year, or property held by the taxpayer primarily for sale to
customers in the ordinary course of its trade or business, and accounts
or notes receivable acquired in the ordinary course of trade or business
from the sale of such stock in trade or property, or for services
rendered, net income shall not include
(a) That portion of the gain included in determining net income
pursuant to subdivision one of this section with respect to each such
property, which exceeds
(b) The amount of gain, if any, that would be included in determining
net income pursuant to subdivision one of this section with respect to
each such property if the basis of such property on the date of sale or
other disposition were equal to its fair market value on January first,
nineteen hundred sixty-six, plus or minus all adjustments to basis made
with respect to each such property in computing net income for periods
on or after January first, nineteen hundred sixty-six;
provided that the total adjustment to net income provided by this
subdivision shall not exceed the amount of the taxpayer's net gain from
the sale or other disposition of all such property, as determined
pursuant to subdivision one of this section.
3. Upon the sale or exchange of property the amount of the gain or
loss shall be determined in the manner prescribed by section fifteen of
this part and the basis of such property shall be determined in the
manner prescribed by section sixteen of this part.
4. In the case of any bond, with respect to which a deduction for
amortizable bond premium is allowable under paragraph (i) of subdivision
one of section twenty-nine of this part, the basis for determining gain
or loss shall be reduced by the total amount of such deductions so
allowable.
§ 26. Inventory. Whenever in the opinion of the director of finance
the use of inventories is necessary in order clearly to determine the
income of any taxpayer, inventory shall be taken by such taxpayer upon
such basis as the director of finance may prescribe, conforming as
nearly as may be to the best accounting practice in the banking business
and most clearly reflecting the income.
§ 27. Net income defined; computation. The term "net income" means the
gross income of a taxpayer less the deductions allowed by this subpart.
The net income shall be computed in accordance with the method of
accounting regularly employed in keeping the books of such taxpayer; but
if no such method of accounting has been so employed, or if the method
employed does not clearly reflect the income, the computation shall be
made upon such basis and in such manner as in the opinion of the
director of finance does clearly reflect the income. In determining net
income, war losses, taxation of property recovered, and basis of
property shall be treated in substantially the same manner as such
losses, recoveries and basis are treated under the applicable provisions
of section thirteen hundred thirty-one of the internal revenue code.
§ 28. Gross income defined. 1. The term "gross income" includes gains,
profit and income derived from the business, of whatever kind and in
whatever form paid, including gains, profits or income from dealings in
property, whether real or personal, or gains, profits, or income
received as compensation for services, as interest, rents, commissions,
brokerage or other fees, or otherwise in carrying on such business,
including all dividends received on stocks and all interest received
from federal, state, municipal or other bonds.
2. If the gross income of such an association is derived from business
carried on both within and without the city, "gross income" means that
proportion thereof which is derived from business carried on within the
city, to be allocated and determined on the basis of separate accounting
for each office or branch or, at the election of the taxpayer, under
rules and regulations prescribed by the director of finance.
§ 29. Deductions. 1. In computing net income there shall be allowed as
deductions:
(a) All the ordinary and necessary expenses paid or incurred during
the year in carrying on business, including a reasonable allowance for
salaries or other compensation for personal services actually rendered,
and including rentals or other payments required to be made as a
condition to the continued use or possession for business purposes of
property to which the taxpayer has not taken or is not taking title or
in which such taxpayer has no equity;
(b) All interest paid or accrued during the year on indebtedness;
(c) Taxes, other than taxes on income or profits paid or accrued
within the year, imposed, first, by the authority of the United States,
or of any of its possessions, or, second, by the authority of any state,
or territory, or any county, school district, municipality, or other
taxing subdivisions of any state or territory, not including those
assessed against local benefits of a kind tending to increase the value
of the property assessed, or, third, by the authority of any foreign
government;
(d) Losses sustained during the year and not compensated for by
insurance or otherwise, if incurred in business; unless in order to
clearly reflect the income the losses should in the opinion of the
director of finance be accounted for as of a different period. No
deduction shall be allowed for any loss claimed to have been sustained
in any sale or other disposition of shares of stock or securities where
it appears that within thirty days before or after the date of such sale
or other disposition the taxpayer has acquired substantially identical
property, and the property so acquired is held by the taxpayer for any
period after such sale or other disposition, unless such claim is made
with respect to a transaction made in the ordinary course of business.
If such acquisition is to the extent of part only of substantially
identical property, only a proportionate part of the loss shall be
disallowed;
(e) Debts ascertained to be worthless and charged off within the year;
or in the discretion of the director of finance a reasonable addition to
a reserve for bad debts. When satisfied that a debt is recoverable only
in part, the director of finance may allow such debt to be charged off
in part;
(f) A reasonable allowance for the exhaustion, wear and tear of
property used in business, including a reasonable allowance for
obsolescence. In the case of any such property acquired before January
first, nineteen hundred sixty-six, the amount of such deduction shall be
equal to the deduction properly taken for such property in reporting the
tax due pursuant to article nine-c of the tax law. With respect to
property such as described in paragraph (j) of this subdivision, this
deduction may be computed and allowed as provided therein;
(g) If the gross income be derived from business carried on within and
without the city, the deductions allowed by this section shall be
allocated and determined on the basis of separate accounting for each
office or branch or, at the election of the taxpayer, under rules and
regulations to be prescribed by the director of finance;
(h) In the case of any taxpayer, who establishes or maintains a
pension trust to provide for the payment of reasonable pensions to its
employees, there shall be allowed as a deduction (in addition to the
contributions to such trust during the taxable year to cover the pension
liability accruing during the year, allowed as a deduction under
paragraph (a) of this subdivision) a reasonable amount transferred or
paid into such trust during the taxable year in excess of such
contributions, but only if such amount (1) has not theretofore been
allowable as a deduction, and (2) is apportioned in equal parts over a
period of ten consecutive years beginning with the year in which the
transfer or payment is made; provided that said deduction shall be
allowable only with respect to a taxable year (whether the year of the
transfer or payment or a subsequent year) of the taxpayer ending within
or with a taxable year of the trust with respect to which the trust, by
reason of its purposes or activities is exempt from federal income tax;
(i) The amount of the amortizable bond premium on a bond for the year
shall be allowed as a deduction as hereinafter provided. In computing
such deduction, (a) the amount of the bond premium shall be determined
with reference to the amount of the basis (for determining loss on sale
or exchange) of such bond, and with reference to the amount payable on
maturity or on earlier call date, with adjustments proper to reflect
unamortized bond premium with respect to the bond, for the period prior
to the date as of which this paragraph becomes applicable with respect
to the taxpayer with respect to such bond, and (b) the amortizable bond
premium of the year shall be the amount of the bond premium attributable
to such year. The determinations required in the preceding sentence
shall be made in accordance with the method of amortizing bond premium
regularly employed by the holder of such bond, if such method is
reasonable, and in all other cases in accordance with regulations of the
director of finance prescribing reasonable methods of amortizing bond
premium. This paragraph shall apply only if the taxpayer shall so elect,
in accordance with regulations of the director of finance, and such
election shall be made separately with respect to (1) bonds, the
interest of which is wholly taxable, and (2) bonds, the interest of
which is wholly or partially tax exempt, for purposes of the income tax
imposed by chapter one of the internal revenue code. If such election is
made with respect to any bond of the taxpayer described in clauses one
or two hereof, it shall also apply to all bonds in the same class held
by the taxpayer at the beginning of the first year to which the election
applies and to all such bonds thereafter acquired by it and shall be
binding for all subsequent years with respect to all such bonds of the
taxpayer, unless, upon application by the taxpayer, the director of
finance permits the taxpayer, subject to such conditions as the director
of finance deems necessary, to revoke such election. As used in this
paragraph, the term "bond" means any bond, debenture, note, or
certificate or other evidence of indebtedness, issued by any corporation
and bearing interest (including any like obligation issued by a
government or political subdivision thereof), with interest coupons or
in registered form, but does not include any such obligation which
constitutes stock in trade of the taxpayer or any such obligation of a
kind which would properly be included in the inventory of the taxpayer
if on hand at the close of the year, or any such obligation held by the
taxpayer primarily for sale to customers in the ordinary course of its
trade or business; and
(j) (1) At the election of the taxpayer there shall be deducted from
gross income, or if gross income is derived from business carried on
within and without this city, from the portion thereof allocated within
the city, depreciation with respect to any property such as described in
subparagraph (2) of this paragraph, not exceeding twice the depreciation
allowed with respect to the same property for federal income tax
purposes.
(2) Such deduction shall be allowed only with respect to tangible
property which is depreciable pursuant to section one hundred
sixty-seven of the internal revenue code, having a situs in this city
and used in the taxpayer's business, (i) the construction,
reconstruction or erection of which is completed after December
thirty-first, nineteen hundred sixty-five, and then only with respect to
that portion of the basis thereof which is properly attributable to such
construction, reconstruction or erection after December thirty-first,
nineteen hundred sixty-five, or (ii) acquired after December
thirty-first, nineteen hundred sixty-five, by purchase as defined in
section one hundred seventy-nine (d) of the internal revenue code, if
the original use of such property commenced with the taxpayer, commenced
in this city and commenced after such date.
(3) If the deduction allowable for any taxable year pursuant to this
subdivision exceeds the taxpayer's net income computed without the
allowance of such deduction and without the allowance of any deduction
pursuant to paragraph (f) of this section with reference to the same
property, the excess may be carried over to the following taxable year
or years and may be deducted in computing net income for such year or
years.
(4) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to this
paragraph, the gain or loss thereon shall be computed by adjusting the
basis of such property to reflect the deductions so allowed, and if the
taxpayer's gross income is derived from business carried on both within
and without the city, shall be allocated within the city. Provided,
however, that no loss shall be recognized for the purposes of this
paragraph with respect to a sale or other disposition of property to a
person whose acquisition thereof is not a purchase as defined in section
one hundred seventy-nine (d) of the internal revenue code.
2. In computing net income no deduction shall in any case be allowed
in respect of:
(a) Any amount paid out for new buildings or for permanent
improvements or betterments made to increase the value of any property.
(b) Any amount expended in restoring property or in making good the
exhaustion thereof for which an allowance is or has been made.
§ 30. Administration; procedure; provisions of law applicable. For the
purpose of carrying into effect the provisions of this subpart, and
except as otherwise provided in this subpart, income shall be computed,
gain or loss ascertained, deductions made, apportionments and
allocations determined, at the same time and subject to the same
limitations and conditions, in so far as practicable, as is provided by
subpart one of this part in relation to the tax imposed by such subpart.
§ 31. Tax on production credit associations. Pursuant to the authority
conferred by the federal farm credit act of nineteen hundred
thirty-three, every production credit association organized under the
authority of the United States and located within the city after the
stock held in it by the federal production credit corporation has been
retired shall annually pay a tax measured by its net income, which shall
be computed in the same manner as the tax imposed upon national banking
associations by section twenty-three and shall be subject to the
provisions of sections twenty-four to thirty inclusive.
SUBPART 3
ADMINISTRATION FOR SUBPARTS 1 AND 2
§ 32. Taxpayers' returns. Every taxpayer, on or before March
fifteenth, nineteen hundred sixty-seven, and annually thereafter, shall
make a return subscribed by the taxpayer and affirmed by him to be true
under the penalties of perjury to the director of finance, for the
calendar year next preceding, as to the business or that portion of the
business of such taxpayer the income from which is the basis of taxation
under this part, except that every trust company and savings bank which
shall become incorporated between the thirty-first day of December and
the succeeding first day of July, shall make its return for such period
on or before September first, and every taxpayer, other than a trust
company and savings bank, which shall commence to do business in the
city or become located in the city, shall make its return for the
calendar year in which it commences to do business or becomes located,
on or before the twentieth day of January of the year succeeding such
calendar year, and except that every taxpayer, other than a trust
company and savings bank, which shall be dissolved, cease to do business
in the city or cease to be located in the city, between the thirty-first
day of December and the succeeding sixteenth day of March and shall not
become merged or consolidated with another corporation taxable under the
same subpart, shall make its return for such period on or before the
date of such dissolution, or cessation of business, and every trust
company and savings bank which shall be dissolved, and shall not become
merged or consolidated with another corporation taxable under the same
subpart, shall make its return, for the period for which it is taxable
under subdivision seven of section twelve of this part on or before the
date of such dissolution. Such return shall be in such form and contain
such information as the director of finance may require for the purpose
of making any computation or otherwise performing its duty under this
part. Such return shall state specifically the items of gross income
derived from such business and the deductions allowed by this part, the
net income which is the basis of the tax, and the amount of tax due.
The return shall be subscribed by the president, vice-president,
treasurer, assistant treasurer, chief accounting officer or any other
officer of the taxpayer duly authorized so to act. The fact that an
individual's name is signed on the return shall be prima facie evidence
that such individual is authorized to subscribe and affirm the return on
behalf of the corporation. Blank forms of return shall be furnished by
the director of finance upon application, but failure to secure the form
shall not relieve any taxpayer from the obligation of making any return
herein required. An automatic extension of three months for the filing
of its annual return shall be allowed any taxpayer if, within the time
prescribed herein for the filing thereof, such taxpayer files with the
director of finance an application for extension in such form as the
director of finance may prescribe by regulation and pays on or before
the date of such filing the amount properly estimated as its tax. The
director of finance may grant a reasonable extension of time for filing
a return, which may be in addition to any automatic extension allowed
under the preceding sentence, whenever in its judgment good cause exists
and shall keep a record of every such extension and the reason therefor.
No such extension or extensions shall aggregate more than three months,
exclusive of any automatic extension.
If the amount of taxable income for any year of any taxpayer as
returned to the United States treasury department is changed or
corrected by the commissioner of internal revenue or other officer of
the United States or other competent authority, or if a taxpayer,
pursuant to subsection (d) of section sixty-two hundred thirteen of the
internal revenue code, executes a notice of waiver of the restrictions
provided in subsection (a) of said section, such taxpayer shall report
such change or corrected taxable income or such execution of such notice
of waiver and the changes or corrections of his federal taxable income
on which it is based, within ninety days after such execution or the
final determination of such change or correction, or on its next return
under this part, or as required by the director of finance, and shall
concede the accuracy of such determination or state wherein it is
erroneous. Any taxpayer filing an amended return with such department
shall also file within ninety days thereafter an amended return with the
director of finance which shall contain such information as it shall
require.
§ 33. Consolidated returns. Corporations which are affiliated may, if
authorized, and shall, if required, by the director of finance, under
regulations prescribed by the director of finance, make a consolidated
return for the purpose of this part. In any case in which a tax is
assessed upon the basis of a consolidated return, the total tax shall be
computed in the first instance as a unit and shall then be assessed upon
the respective affiliated corporations in such proportions as may be
agreed upon among them, or in the absence of any such agreement, then on
the basis of the net income properly assignable to each.
§ 34. Payment of tax. Each taxpayer shall, at the time of filing its
return, pay to the director of finance
(a) the amount of tax payable hereunder as the same shall appear from
the face of the return, or
(b) if payments of estimated tax have been made pursuant to section
thirty-five of this part, the balance, if any, of the tax payable
hereunder, as the same shall appear from the face of the return, after
applying thereto any payments made pursuant to said section.
If the time for filing the return shall be extended, the taxpayer shall
pay in addition interest at the rate of six percentum per annum from the
time when the return was originally required to be filed to the time of
payment upon the amount by which the tax, or the portion thereof payable
when the return was required to be filed, exceeds the amount then paid:
(1) a payment made on or before the date of filing of an application
for an automatic extension shall be deemed properly estimated if it is
either (A) not less than ninety percentum of the tax as finally
determined, or (B) not less than the tax shown on the taxpayer's return
for the preceding taxable year, if such preceding year was a taxable
year of twelve months; and
(2) the time when a return is required to be filed shall be determined
without regard to any extension of time for filing such return.
§ 35. Declaration of estimated tax; payments on account of estimated
tax. 1. Every taxpayer subject to the tax imposed by this part shall
make a declaration of the estimated tax upon the basis of its net income
for the current calendar year, containing such information as the
director of finance may prescribe by regulations or instructions, if
such estimated tax can reasonably be expected to exceed one thousand
dollars.
2. The term "estimated tax" means the amount which a taxpayer
estimates to be the tax imposed by this part upon the basis of its net
income for the current calendar year, less the amount which it estimates
to be the sum of any credits allowable against the tax.
3. A declaration of estimated tax shall be filed on or before June
fifteenth of the calendar year upon the net income of which the tax is
based, except that if the requirements of subdivision one are first met:
(a) after June first and before October second of such calendar year,
the declaration shall be filed on or before October fifteenth, or
(b) after October first of such calendar year, the declaration shall
be filed on or before January fifteenth of the succeeding calendar year.
Notwithstanding any other provision of this subdivision, no
declaration need be filed prior to the sixtieth day after the date this
title becomes effective.
4. A taxpayer may amend a declaration under regulations of the
director of finance.
5. If, on or before February fifteenth of the succeeding year, a
taxpayer files its return for the calendar year upon the net income of
which the declaration is required to be based, and pays therewith the
balance, if any, of the full amount of the tax shown to be due on the
return,
(a) such return shall be considered as its declaration if no
declaration was required to be filed during such calendar year, but is
otherwise required to be filed on or before January fifteenth of the
succeeding year pursuant to subdivision three,
(b) such return shall be considered as an amendment permitted by
subdivision four to be filed on or before January fifteenth if the tax
shown on the return is greater than the estimated tax shown on a
declaration previously made.
6. The director of finance may grant a reasonable extension of time,
not to exceed three months, for the filing of any declaration required
pursuant to this section, on such terms and conditions as he may
require.
7. Every taxpayer subject to the tax imposed by this part shall pay
with the return of tax, if any, required to be filed upon the basis of
its net income for the preceding calendar year, or with an application
for extension of the time for filing such return, an amount equal to
twenty-five per centum of the preceding year's tax, if such preceding
year's tax exceeded one thousand dollars.
8. The estimated tax with respect to which a declaration for such
calendar year is required pursuant to this section shall be paid as
follows:
(a) If the declaration is filed on or before June fifteenth, the
estimated tax shown thereon, after applying thereto the amount, if any,
paid during the same calendar year pursuant to subdivision seven, shall
be paid in three equal installments. One of such installments shall be
paid at the time of the filing of the declaration, one shall be paid on
the following October fifteenth, and one on the following January
fifteenth.
(b) If the declaration is filed after June fifteenth and not after
October fifteenth of such calendar year, and is not required to be filed
on or before June fifteenth of such calendar year, the estimated tax
shown on such declaration, after applying thereto the amount, if any,
paid during the same calendar year pursuant to subdivision seven, shall
be paid in two equal installments. One of such installments shall be
paid at the time of the filing of the declaration and one shall be paid
on the following January fifteenth.
(c) If the declaration is filed after October fifteenth of such
calendar year, and is not required to be filed on or before October
fifteenth of such calendar year, the estimated tax shown on such
declaration, after applying thereto the amount, if any, paid in respect
of such calendar year pursuant to subdivision seven, shall be paid in
full at the time of the filing of the declaration.
(d) If the declaration is filed after the time prescribed therefor, or
after the expiration of any extension of time therefor, paragraphs (b)
and (c) of this subdivision shall not apply, and there shall be paid at
the time of such filing all installments of estimated tax payable at or
before such time, and the remaining installments shall be paid at the
times at which, and in the amounts in which, they would have been
payable if the declaration had been filed when due.
9. If any amendment of a declaration is filed, the remaining
installments, if any, shall be ratably increased or decreased (as the
case may be) to reflect any increase or decrease in the estimated tax by
reason of such amendment, and if any amendment is made after October
fifteenth of the calendar year, any increase in the estimated tax by
reason thereof shall be paid at the time of making such amendment.
10. Any amount paid pursuant to subdivision seven shall be applied
after payment as a first installment against the estimated tax of the
taxpayer shown on the declaration next required to be filed pursuant to
this section or, if no declaration of estimated tax is required to be
filed by the taxpayer pursuant to this section, any such amount shall be
considered a payment on account of the tax shown on the return of tax
required to be filed by the taxpayer upon the basis of its net income
for the calendar year during which such amount was paid.
11. Notwithstanding the provisions of section seventy-nine of this
title or of section three-a of the general municipal law, if any amount
paid pursuant to subdivision seven, exceeds the tax shown on the return
required to be filed by the taxpayer upon the basis of its net income
for the calendar year during which the amount was paid, interest shall
be allowed and paid on the amount by which the amount so paid pursuant
to such subdivision exceeds such tax, at the rate of six per centum per
annum from the date of payment of the amount so paid pursuant to such
subdivision to March fifteenth of the succeeding calendar year,
provided, however, that no interest shall be allowed or paid under this
subdivision if the amount thereof is less than one dollar.
12. As used in this section, "the preceding year's tax" means the tax
imposed upon the taxpayer by this part upon the basis of its net income
for the preceding calendar year, or, for purposes of computing the first
installment of estimated tax when an application has been filed for
extension of time for filing the return required to be filed for such
preceding calendar year, the amount properly estimated pursuant to
section thirty-four of this part as the tax imposed upon the basis of
its net income for such calendar year.
13. This section shall apply to an income period of less than twelve
months in accordance with regulations of the director of finance.
14. The director of finance may grant a reasonable extension of time,
not to exceed six months, for payment of any installment of estimated
tax required pursuant to this section, on such terms and conditions as
he may require, including the furnishing of a bond or other security by
the taxpayer in an amount not exceeding twice the amount for which any
extension of time for payment is granted, provided however that interest
at the rate of six per centum per annum for the period of the extension
shall be charged and collected on the amount for which any extension of
time for payment is granted under this subdivision.
15. A taxpayer may elect to pay any installment of estimated tax prior
to the date prescribed in this section for payment thereof.
§ 36. Real property taxable. Nothing in this part shall be
construed to exempt the real property of any taxpayer from taxation to
the same extent, according to its value, as other real property is
taxed.
PART V
TRANSPORTATION CORPORATION TAX
§ 61. Tax on transportation corporations and associations. 1. The
term "corporation" as used in this part shall include any business
conducted by a trustee or trustees wherein interest or ownership is
evidenced by certificates or other written instruments.
2. For the privilege of doing business or of holding property in the
city every corporation, joint stock company or association formed for or
principally engaged in the conduct of aviation, steamboat, ferry (except
a ferry company operating between any of the boroughs of the city under
a lease granted by the city), or navigation business, or formed for or
principally engaged in the conduct of two or more of such businesses,
except a corporation, joint stock company or association subject to
taxation under a local law of the city imposed on utilities and vendors
of utility services, shall pay, in advance, an annual tax to be computed
upon the basis of the amount of its capital stock within the city during
the preceding year, and upon each dollar of such amount.
3. The measure of the amount of capital stock in the city, except as
hereinafter provided, shall be such a portion of the issued capital
stock as the gross assets, exclusive of obligations issued by the United
States and cash on hand and on deposit, employed in any business within
the city, bear to the gross assets, exclusive of obligations issued by
the United States and cash on hand and on deposit, wherever employed in
business. Provided, however, that in the case of a corporation taxable
hereunder only for the privilege of holding property, the measure shall
be such a portion of the issued capital stock as the gross assets,
exclusive of obligations issued by the United States and cash on hand
and on deposit, located within the city, bear to the gross assets,
exclusive of obligations issued by the United States and cash on hand
and on deposit, wherever located. The capital of a corporation invested
in the stock of another corporation shall be deemed to be assets located
where the assets of the issuing corporation, other than patents,
copyrights, trademarks, contracts and good will, are located.
4. Every corporation, joint stock company or association subject to
taxation under this section shall, in any event, pay annually a minimum
tax of not less than ten dollars nor less than one mill on each dollar
of such a portion of the net value of its issued capital stock, which
net value for the purposes of this section shall be deemed to be not
less than five dollars per share, as may be determined upon such of the
bases herein provided for the measurement thereof as is applicable. The
term "net value" as used in this section shall be construed to mean not
less than the difference between a corporation's assets and liabilities,
and not less than the average price at which such stock sold during the
year covered by the report which forms the basis for the tax. But if the
dividends paid on the par value of any kind of capital stock during any
year ending with the thirty-first day of December amount to six or more
than six per centum, the tax upon such kind of capital stock shall be at
the rate of one-quarter of a mill for each one per centum of dividends
paid and shall be computed upon the par value of such capital stock,
unless such a tax be less than the minimum tax hereinbefore provided in
this section and the director of finance shall, for such purpose, make a
fair and equitable apportionment of the assets of the corporation, joint
stock company or association, between or among the different kinds of
stock.
5. If such corporation, joint stock company or association shall have
more than one kind of capital stock, and upon one of such kinds of stock
a dividend or dividends amounting to six or more than six per centum
upon the part value thereof, has been paid, and upon the other no
dividend has been paid, or the dividend or dividends paid thereon amount
to less than six per centum upon the par value thereof, then the tax
shall be fixed upon each kind as hereinbefore provided.
6. The dividend rate for a corporation having stock without nominal or
par value shall be determined by dividing the amount paid as a dividend
or dividends during the year by the amount paid in on such stock and, if
the rate is six per centum or more, the rate of one-quarter of a mill
for each one per centum of dividends shall be applied to the amount paid
in on such stock, unless such tax be less than the minimum tax
hereinbefore in this section provided for. Any consideration given by a
corporation for the purchase of its own stock in excess of the
consideration received by it for the issuance of such stock shall for
the purposes of this section, be considered as a dividend.
7. The owning or holding in the city by any corporation of property,
other than property exclusively in interstate or foreign commerce, shall
constitute carrying on business within the city within the intent of
this section, except that a corporation having no property in the city
other than a bank balance or stocks or bonds, or one of more of such
kinds of property, either held for safe keeping or pledged as collateral
security shall not be taxable under this section, and further provided
that any corporation having only office furniture or fixtures, a bank
balance, and stocks or bonds pledged as collateral security or merely
deposited for safe keeping, shall not be taxable under this section.
8. The measure of the amount of capital stock in the city of an
aviation corporation shall be a portion of the issued capital stock
determined by applying thereto the arithmetical average of the following
three ratios: (a) the ratio which the aircraft arrivals and departures
within the city scheduled by any such corporation during the preceding
calendar year bear to the total aircraft arrivals and departures within
and without the city scheduled by it during the same period, provided
that in the case of non-scheduled operations all arrivals and departures
shall be substituted for scheduled arrivals and departures; (b) the
ratio which the revenue tons handled by such corporation at airports
within the city during the preceding calendar year bear the total
revenue tons handled by it at airports within and without the city
during the same period; and (c) the ratio which such corporation's
originating revenue within the city for the preceding calendar year
bears to its total originating revenue within and without the city for
the same period. As used in this section, the term "aircraft arrivals
and departures" means the number of scheduled landings and takeoffs of
the aircraft of an aviation corporation, and the number of scheduled air
pickups and deliveries by the aircraft of such corporation, and in the
case of non-scheduled operations shall include all landings and
takeoffs, pickups and deliveries; the term "originating revenue" means
revenue to any such corportion from the transportation of revenue
passengers and revenue property first received by such corporation
either as originating or connecting traffic at airports; and the term
"revenue tons handled" by any such corportion at an airport means the
weight in tons of revenue passengers (at two hundred pounds per
passenger) and revenue cargo first received either as originating or
connecting traffic or finally discharged by such corporation at such
airport.
9. The measure of the capital stock in the city of a corporation
engaged in the operation of vessels in foreign commerce shall be such
portion of the issued capital stock as the aggregate number of working
days in territorial waters of the city of all such vessels bears to the
aggregate number of working days of all such vessels. The dividend rate
for such a corporation shall be determined by dividing the amount paid
as a dividend or dividends on all classes of stock during the year by
the amount of paid-in capital and, if the rate is six per centum or
more, the rate of one-quarter of a mill for each one per centum of
dividends shall be applied to the amount of such paid-in capital.
§ 62. Additional tax on transportation corporations and associations.
Every corporation, joint-stock company or association formed for or
principally engaged in the conduct of aviation, steamboat, ferry (except
a ferry company operating between any of the boroughs of the city under
a lease granted by the city), or navigation business or formed for or
principally engaged in the conduct of two or more of such businesses,
except a corporation, joint-stock company or association subject to
taxation under a local law of the city, imposed on utilities and vendors
of utility services, shall pay for the privilege of carrying on its
business in the city, a tax which shall be equal to five-tenths of one
per centum upon its gross earnings from all sources within the city,
excluding earnings derived from business of a character other than
wholly intra-city. Provided, however, gross earnings from transportation
business both originating and terminating within the city and traversing
both the city and any other city, any state or states or any country
shall be subject to the tax imposed by this section and such earnings
shall be allocated to the city in the same ratio that the mileage within
the city bears to the total mileage of such business.
§ 63. Receivers, etc., conducting corporate business. Any receiver,
liquidator, referee, trustee, assignee, or other fiduciary or officer or
agent appointed by any court, who conducts the business of any
corporation, joint stock company or association shall be subject to the
tax or taxes imposed by this part in the same manner and to the same
extent as if the business were conducted by the agents or officers of
such corporation, joint stock company or association. A dissolved
corporation, joint stock company or association which continues to
conduct business shall also be subject to the tax imposed by this part.
§ 64. Service of process; limitation of time. 1. Every foreign
corporation (other than a moneyed corporation) subject to the provisions
of this part, except a corporation having a certificate of authority
under section two hundred twelve of the general corporation law or
having authority to do business by virtue of section thirteen hundred
five of the business corporation law, shall file in the department of
state a certificate of designation in its corporate name, signed and
acknowledged by its president or vice-president or its secretary or
treasurer, under its corporate seal, designating the secretary of state
as its agent upon whom process in any action provided for by this part
may be served within this state, and setting forth an address to which
the secretary of state shall mail a copy of any such process against the
corporation which may be served upon him. In case any such corporation
shall have failed to file such certificate of designation, it shall be
deemed to have designated the secretary of state as its agent upon whom
such process against it may be served; and until a certificate of
designation shall have been filed the corporation shall be deemed to
have directed the secretary of state to mail copies of process served
upon him to the corporation at its last known office address within or
without the state. When a certificate of designation has been filed by
such corporation the secretary of state shall mail copies of process
thereafter served upon him to the address set forth in such certificate.
Any such corporation, from time to time, may change the address to which
the secretary of state is directed to mail copies of process, by filing
a certificate to that effect executed, signed and acknowledged in like
manner as a certificate of designation as herein provided. Service of
process upon any such corporation or upon any corporation having a
certificate of authority under section two hundred twelve of the general
corporation law or having authority to do business by virtue of section
thirteen hundred five of the business corporation law, in any action
commenced at any time pursuant to the provisions of this part may be
made by either (1) personally delivering to and leaving with the
secretary of state, a deputy secretary of state or with any person
authorized by the secretary of state to receive such service duplicate
copies thereof at the office of the department of state in the city of
Albany, in which event the secretary of state shall forthwith send by
registered mail, return receipt requested, one of such copies to the
corporation at the address designated by it or at its last known office
address within or without the state, or (2) personally delivering to and
leaving with the secretary of state, a deputy secretary of state or with
any person authorized by the secretary of state to receive such service,
a copy thereof at the office of the department of state in the city of
Albany and by delivering a copy thereof to, and leaving such copy with,
the president, vice-president, secretary, assistant secretary,
treasurer, assistant treasurer, or cashier of such corporation, or the
officer performing corresponding functions under another name, or a
director or managing agent of such corporation, personally without the
state. Proof of such personal service without the state shall be filed
with the clerk of the court in which the action is pending within thirty
days after such service, and such service shall be complete ten days
after proof thereof is filed.
2. The provisions of the civil practice law and rules relative to the
limitation of time of enforcing a civil remedy shall not apply to any
proceeding or action taken to levy, appraise, assess, determine or
enforce the collection of any tax or penalty prescribed by this part or
part six of this title, provided, however, that as to real estate in the
hands of persons who are owners thereof who would be purchasers in good
faith but for such tax or penalty and as to the lien on real estate of
mortgages held by persons who would be holders thereof in good faith but
for such tax or penalty, all such taxes and penalties shall cease to be
a lien on such real estate as against such purchasers or holders after
the expiration of ten years from the date such taxes became due and
payable. The limitations herein provided for shall not apply to any
transfer from a corporation to a person or corporation with intent to
avoid payment of any taxes, or where with like intent the transfer is
made to a grantee corporation, or any subsequent grantee corporation
controlled by such grantor or which has any community of interest with
it, either through stock ownership or otherwise.
§ 65. Exemption of Corporations Owned by a Municipality. The
provisions of this part shall not apply to any corporation all of the
capital stock of which is owned by a municipal corporation of this
state.
§ 66. Reports of Corporations. Corporations liable to pay a tax under
this part shall report as follows:
1. Every corporation, association or joint stock company liable to pay
a tax under section sixty-one of this part shall, on or before March
first in each year, make a written report to the director of finance of
its condition at the close of its business on the preceding December
thirty-first, stating the amount of its authorized capital stock, the
amount of stock paid-in, the date and rate per centum of each dividend
paid by it during the year ending with such day, the entire amount of
the capital of such corporation, and the capital employed by it in the
city during such year.
2. Every corporation, joint stock company or association liable to pay
an additional tax under section sixty-two of this part shall also, on or
before February fifteenth, May fifteenth, August fifteenth and November
fifteenth in each year, make a written report to the director of finance
of the amount of its gross earnings subject to the tax imposed by said
section for the quarter year ended on the last day of the second month
preceding that in which the report is required to be filed. Any such
corporation, joint stock company or association which ceases to be
subject to the tax imposed by section sixty-two of this part by reason
of a liquidation, dissolution, merger or consolidation with any other
corporation, or any other cause, shall, on the date of such cessation or
at such other time as the director of finance may require, make a
written report to the director of finance of the amount of its gross
earnings subject to the tax imposed by section sixty-two of this part
for any period for which no report was theretofore filed.
3. The director of finance may for good cause shown extend the time
within which any corporation is required to report by this part.
4. Every report required by this part shall have annexed thereto a
certification by the president, vice-president, treasurer, assistant
treasurer, or chief accounting officer or any other officer of the
corporation, association or joint stock company duly authorized so to
act, or of the person or one of the persons, or the members of the
partnership making the same, to the effect that the statements contained
therein are true. The fact that an individual's name is signed on a
certification attached to a corporate report shall be prima facie
evidence that such individual is authorized to certify the report on
behalf of the corporation. Such reports shall contain any other data,
information or matter which the director of finance may require to be
included therein, and it may prescribe the form in which such reports
shall be made. When so prescribed such forms shall be used in making the
report. The director of finance may require at any time a further or
supplemental report under this part, which shall contain information and
data upon such matters as the director of finance may specify. Reports
shall be preserved for five years, and thereafter until the director of
finance orders them to be destroyed.
§ 67. Payment of tax and penalties. 1. The taxes imposed by sections
sixty-one and sixty-two of this part shall be due and payable at the
time of filing the report required by section sixty-six, or, in case
such a report is not filed when due, on the last day specified for the
filing thereof, except that the tax upon dividends imposed by section
sixty-two of this part shall be due and payable at the time of filing
the report for the period ending June thirtieth, or, in case such report
is not filed when due, on the last day specified for the filing thereof.
2. Where an application for consent to dissolution, as provided by
section one hundred five of the stock corporation law or section one
thousand four of the business corporation law, is filed with the
director of finance prior to the commencement of any tax year or period,
by a corporation subject to tax under this part, such corporation shall
not be liable for any tax imposed by this part for such following year
or period (except as may be otherwise provided in section sixty-three),
provided that the certificate of dissolution for such corporation is
duly filed in the office of the secretary of state within twenty days
after the filing of such application.
3. Notwithstanding any other provision of this part, the director of
finance may grant a reasonable extension of time for payment of any tax
imposed by this part under such conditions as he deems just and proper.
§ 68. Taxable years to which taxes apply. The taxes imposed by this
part are imposed for each taxable year or period beginning with taxable
years or periods ending in or with the calendar year nineteen hundred
sixty-six.
§ 69. First reports for payments for nineteen hundred sixty-six. If
any report under this part is due prior to sixty days after the
enactment of this title, such report and the payment therewith shall be
filed and paid within sixty days after the enactment of this title.
PART VI
(CORPORATE TAX PROCEDURE AND ADMINISTRATION)
§ 71. Application of part. 1. General.--The provisions of this part
shall apply to the administration of and the procedures with respect to
the taxes imposed by part two, part three, part four and part five of
this title.
2. Definitions.--As used in this part: (a) the term "named parts"
means parts two, three, four and five of this title;
(b) The term "return" means a report or return of tax, but does not
include a declaration of estimated tax;
(c) The term "corporation" includes a corporation, association, joint
stock company or other entity subject to tax under any of the named
parts; and
(d) The term "person" includes a corporation, association, company,
partnership, estate, trust, liquidator, fiduciary or other entity or
individual liable for the tax imposed by any of the named parts or under
a duty to perform an act under any of the named parts. Upon notice to
the director of finance that any person is acting for any corporation in
a fiduciary capacity, such fiduciary shall assume the powers, rights,
duties and privileges of such corporation in respect of a tax imposed by
any of the named parts (except as otherwise specifically provided and
except that the tax shall be collected from the estate or other assets
of such corporation in the hands of such fiduciary), until notice is
given that the fiduciary capacity has terminated.
§ 72. Notice of Deficiency. 1. General.--If upon examination of a
taxpayer's return, the director of finance determines that there is a
deficiency of tax, it may mail a notice of deficiency to the taxpayer.
If a taxpayer fails to file a tax return, the director of finance is
authorized to estimate the taxpayer's city tax liability from any
information in his possession, and to mail a notice of deficiency to the
taxpayer. A notice of deficiency shall be mailed by certified or
registered mail to the taxpayer at its last known address in or out of
the city. If the taxpayer has terminated its existence, a notice of
deficiency may be mailed to its last known address in or out of the
city, and such notice shall be sufficient for purposes of this part. If
the director of finance has received notice that a person is acting for
the taxpayer in a fiduciary capacity, a copy of such notice shall also
be mailed to the fiduciary named in such notice.
2. Notice of deficiency as assessment.--After ninety days from the
mailing of a notice of deficiency, such notice shall be an assessment of
the amount of tax specified in such notice, together with the interest,
additions to tax and penalties stated in such notice, except only for
any such tax or other amounts as to which the taxpayer has within such
ninety day period filed with the director of finance a petition under
section eighty. If the notice of deficiency is addressed to a taxpayer
whose last known address is outside of the United States, such period
shall be one hundred fifty days instead of ninety days.
3. Restrictions on assessment and levy.--No assessment of a deficiency
in tax and no levy or proceeding in court for its collection shall be
made, begun or prosecuted, except as otherwise provided in section
eighty-five, until a notice of deficiency has been mailed to the
taxpayer, nor until the expiration of the time for filing a petition
contesting such notice, nor, if a petition with respect to the taxable
year has been filed with the director of finance, until the decision of
the director of finance has become final. For exception in the case of
judicial review of the decision of the director of finance, see
subdivision three of section eighty-one.
4. Exceptions for mathematical errors.--If a mathematical error
appears on a return (including an overstatement of the amount paid as
estimated tax), the director of finance shall notify the taxpayer that
an amount of tax in excess of that shown upon the return is due, and
that such excess has been assessed. Such notice shall not be considered
as a notice of deficiency for the purposes of this section, subdivision
six of section seventy-eight (limiting credits or refunds after petition
to the director of finance), or subdivision two of section eighty
(authorizing the filing of a petition with the director of finance based
on a notice of deficiency), nor shall such assessment or collection be
prohibited by the provisions of subdivision three of this section.
5. Exception where change in federal taxable income is not reported.--
(a) If the taxpayer fails to comply with part two or part three of
this title in not reporting a change or correction or renegotiation, or
computation or recomputation of tax, increasing or decreasing its
federal taxable income as reported on its federal income tax return or
in not reporting a change or correction or renegotiation, or computation
or a recomputaton of tax, which is treated in the same manner as if it
were a deficiency for federal income tax purposes or in not filing an
amended return or in not reporting the execution of a notice of waiver
executed pursuant to subsection (d) of section six thousand two hundred
thirteen of the internal revenue code instead of the mode and time of
assessment provided for in subdivision two of this section, the
commissioner of finance may assess a deficiency based upon such
increased or decreased federal taxable income by mailing to the taxpayer
a notice of additional tax due specifying the amount of the deficiency,
and such deficiency, together with the interest, additions to tax and
penalties stated in such notice, shall be deemed assessed on the date
such notice is mailed unless within thirty days after the mailing of
such notice a report of the federal change or correction or
renegotiation, or computation or recomputation of tax, or an amended
return, where such return was required by part two or part three, is
filed accompanied by a statement showing wherein such federal
determination and such notice of additional tax due are erroneous.
(b) Such notice shall not be considered as a notice of deficiency for
the purposes of this section, subdivision six of section seventy-eight
(limiting credits or refunds after petition to the director of finance),
or subdivision two of section eighty (authorizing the filing of a
petition with the director of finance based on a notice of deficiency),
nor shall such assessment or the collection thereof be prohibited by the
provisions of subdivision three of this section.
(c) If the taxpayer has terminated its existence, a notice of
additional tax due may be mailed to its last known address in or out of
the city, and such notice shall be sufficient for purposes of this part.
If the director of finance has received notice that a person is acting
for the taxpayer in a fiduciary capacity, a copy of such notice shall
also be mailed to the fiduciary named in such notice.
6. Waiver of restrictions.--The taxpayer shall at any time (whether or
not a notice of deficiency has been issued) have the right to waive the
restrictions on assessment and collection of the whole or any part of
the deficiency by a signed notice in writing filed with the director of
finance.
7. Two or more corporations.--In the case of a combined return under
part two or a consolidated return under part three of two or more
corporations, the director of finance may determine a deficiency of tax
under part two or part three with respect to the entire tax due upon
such return against any taxpayer included therein. In the case of a
taxpayer which might have been included in such a return under part two
or part three when the tax was originally reported, the director of
finance may determine a deficiency of tax under part two or part three
against such taxpayer and against any other taxpayers which might have
been included in such a return.
8. Deficiency defined.--For purposes of this part, a deficiency means
the amount of the tax imposed by the named parts, or any of them, less
(a) the amount shown as the tax upon the taxpayer's return (whether the
return was made or the tax computed by it or by the director of
finance), and less (b) the amounts previously assessed (or collected
without assessment) as a deficiency and plus (c) the amount of any
rebates. For the purpose of this definition, the tax imposed by part two
or part three of this title and the tax shown on the return shall both
be determined without regard to any payment of estimated tax; and a
rebate means so much of an abatement, credit, refund or other repayment
(whether or not erroneous) as was made on the ground that the amounts
entering into the definition of a deficiency showed a balance in favor
of the taxpayer.
9. Exception where change or correction of sales and compensating use
tax liability is not reported.
(a) If a taxpayer fails to comply with part two of this title in not
reporting a change or correction of its sales and compensating use tax
liability or in not filing a copy of an amended return or report
relating to its sales and compensating use tax liability, instead of the
mode and time of assessment provided for in subdivision two of this
section, the commissioner of finance may assess a deficiency based upon
such changed or corrected sales and compensating use tax liability, as
same relates to credits claimed under part two of this title by mailing
to the taxpayer a notice of additional tax due specifying the amount of
the deficiency, and such deficiency, together with the interest,
additions to tax and penalties stated in such notice, shall be deemed
assessed on the date such notice is mailed unless within thirty days
after the mailing of such notice a report of the state change or
correction or a copy of an amended return or report, where such copy was
required by part two, is filed accompanied by a statement showing
wherein such state determination and such notice of additional tax due
are erroneous.
(b) Such notice shall not be considered as a notice of deficiency for
the purposes of this section, subdivision six of section seventy-eight
(limiting credits or refunds after petition to the commissioner of
finance), or subdivision two of section eighty (authorizing the filing
of a petition with the commissioner of finance based on a notice of
deficiency), nor shall such assessment or the collection thereof be
prohibited by the provisions of subdivision three of this section.
(c) If the taxpayer has terminated its existence, notice of additional
tax due may be mailed to its last known address in or out of the city,
and such notice shall be sufficient for purposes of this part. If the
commissioner of finance has received notice that a person is acting for
the taxpayer in a fiduciary capacity, a copy of such notice shall also
be mailed to the fiduciary named in such notice.
§ 73. Assessment. 1. Assessment date.--The amount of tax which a
return shows to be due, or the amount of tax which a return would have
shown to be due but for a mathematical error, shall be deemed to be
assessed on the date of filing of the return (including any amended
return showing an increase of tax). If a notice of deficiency has been
mailed, the amount of the deficiency shall be deemed to be assessed on
the date specified in subdivision two of section seventy-two if no
petition to the director of finance is filed, or if a petition is filed,
then upon the date when a decision of the director of finance
establishing the amount of the deficiency becomes final. If a report or
an amended return filed pursuant to part two or part three of this title
concedes the accuracy of a federal adjustment or change or correction or
renegotiation, or computation or recomputation of tax, any deficiency in
tax under part two or part three of this title resulting therefrom shall
be deemed to be assessed on the date of filing such report or amended
return, and such assessment shall be timely notwithstanding section
seventy-four. If a report filed pursuant to part two of this title
concedes the accuracy of a state change or correction of sales and
compensating use tax liability, any deficiency in tax under part two of
this title resulting therefrom shall be deemed assessed on the date of
filing such report, and such assessment shall be timely notwithstanding
section seventy-four. If a notice of additional tax due, as prescribed
in subdivision five of section seventy-two, has been mailed, the amount
of the deficiency shall be deemed to be assessed on the date specified
in such subdivision unless within thirty days after the mailing of such
notice a report of the federal adjustment or change or correction or
renegotiation or computation or recomputation of tax, or an amended
return, where such return was required by part two or part three of this
title, is filed accompanied by a statement showing wherein such federal
determination and such notice of additional tax due are erroneous. If a
notice of additional tax due, as prescribed in subdivision nine of
section seventy-two, has been mailed, the amount of the deficiency shall
be deemed to be assessed on the date specified in such subdivision
unless within thirty days after the mailing of such notice a report of
the state change or correction, or a copy of an amended return or
report, where such copy was required by part two of this title, is filed
accompanied by a statement showing wherein such state determination and
such notice of additional tax due are erroneous. Any amount paid as a
tax or in respect of a tax, other than amounts paid as estimated tax,
shall be deemed to be assessed upon the date of receipt of payment
notwithstanding any other provisions.
2. Other assessment powers.--If the mode or time for the assessment of
any tax under the named parts (including interest, additions to tax and
assessable penalties) is not otherwise provided for, the director of
finance may establish the same by regulations.
3. Estimated tax.--No unpaid amount of estimated tax under part two or
part three shall be assessed.
4. Supplemental assessment.--The director of finance may, at any time
within the period described for assessment, make a supplemental
assessment, subject to the provisions of section seventy-two where
applicable, whenever it is ascertained that any assessment is imperfect
or incomplete in any material respect.
5. Cross reference.--For assessment in case of jeopardy, see section
eighty-five.
§ 74. Limitations on Assessment. 1. General.--Except as otherwise
provided in this section, any tax under the named parts shall be
assessed within three years after the return was filed (whether or not
such return was filed on or after the date prescribed).
2. Time return deemed filed.--For purposes of this section, a return
of tax filed before the last day prescribed by law or by regulations
promulgated pursuant to law for the filing thereof shall be deemed to be
filed on such last day.
3. Exceptions.--
(a) Assessment at any time.--The tax may be assessed at any time if--
(1) no return is filed,
(2) a false or fraudulent return is filed with intent to evade tax,
(3) in the case of the tax imposed under part two or part three of
this title, the taxpayer fails to file a report or amended return
required thereunder, in respect of an increase or decrease in federal
taxable income or federal tax, or in respect of a change or correction
or renegotiation or in respect of the execution of a notice of waiver
report of which is required thereunder, or computation or recomputation
of tax, which is treated in the same manner as if it were a deficiency
for federal income tax purposes; or
(4) in the case of the tax imposed under part two of this title, the
taxpayer fails to file a report or amended return or report required
thereunder, in respect of a change or correction of sales and
compensating use tax liability, relating to the purchase or use of items
for which a sales or compensating use tax credit against the tax imposed
by part two was claimed.
(b) Extension by agreement.--Where, before the expiration of the time
prescribed in this section for the assessment of tax, both the director
of finance and the taxpayer have consented in writing to its assessment
after such time, the tax may be assessed at any time prior to the
expiration of the period agreed upon. The period so agreed upon may be
extended by subsequent agreements in writing made before the expiration
of the period previously agreed upon.
(c) Report of changed or corrected federal income. In the case of the
tax imposed under part two or part three of this title, if the taxpayer
files a report or amended return required thereunder, in respect of an
increase or decrease in federal taxable income or federal tax, or in
respect of a change or correction or renegotiation, or in respect of the
execution of a notice of waiver report of which is required thereunder,
or computation or recomputation of tax, which is treated in the same
manner as if it were a deficiency for federal income tax purposes, the
assessment (if not deemed to have been made upon the filing of the
report or amended return) may be made at any time within two years after
such report or amended return was filed. The amount of such assessment
of tax shall not exceed the amount of the increase in city tax
attributable to such federal change or correction or renegotiation, or
computation or recomputation of tax. The provisions of this paragraph
shall not affect the time within which or the amount for which an
assessment may otherwise be made.
(d) Deficiency attributable to net operating loss carryback.--If a
deficiency of tax under part two of this title is attributable to the
application to taxpayer of a net operating loss carryback, it may be
assessed at any time that a deficiency for the taxable year of the loss
may be assessed.
(e) Recovery of erroneous refund.--An erroneous refund shall be
considered an underpayment of tax on the date made, and an assessment of
a deficiency arising out of erroneous refund may be made at any time
within two years from the making of the refund, except that the
assessment may be made within five years from the making of the refund
if it appears that any part of the refund was induced by fraud or
misrepresentation of a material fact.
(f) Request for prompt assessment.--The tax shall be assessed within
eighteen months after written request therefor (made after the return is
filed) by the taxpayer or by a fiduciary representing the taxpayer, but
not more than three years after the return was filed, except as
otherwise provided in this subdivision and subdivision four. This
subdivision shall not apply unless--
(1) (A) such written request notifies the director of finance that the
taxpayer contemplates dissolution at or before the expiration of such
eighteen-month period, (B) the dissolution is in good faith begun before
the expiration of such eighteen-month period, and (C) the dissolution is
completed;
(2) (A) such written request notifies the director of finance that a
dissolution has in good faith been begun, and (B) the dissolution is
completed; or
(3) a dissolution has been completed at the time such written request
is made.
(g) Change of the allocation of taxpayer's income or capital.--No
change of the allocation of income or capital upon which the taxpayer's
return (or any additional assessment) was based shall be made where an
assessment of tax is made during the additional period of limitation
under subparagraph (3) or (4) of paragraph (a), or under paragraph (c),
(d) or (i); and where any such assessment has been made, or where a
notice of deficiency has been mailed to the taxpayer on the basis of any
such proposed assessment, no change of the allocation of income or
capital shall be made in a proceeding on the taxpayer's claim for refund
of such assessment or on the taxpayer's petition for redetermination of
such deficiency.
(h) Report concerning waste treatment facility. Under the
circumstances described in subparagraph (3) of paragraph (g) of
subdivision eight of section two of this title, the tax may be assessed
within three years after the filing of the report containing the
information required by such paragraph.
(i) Report of changed or corrected sales and compensating use tax
liability. In the case of a tax imposed under part two of this title, if
the taxpayer files a report or amended return or report required
thereunder, in respect of a change or correction of sales and
compensating use tax liability, the assessment (if not deemed to have
been made upon the filing of the report) may be made at any time within
two years after such report or amended return or report was filed. The
amount of such assessment of tax shall not exceed the amount of the
increase in city tax attributable to such state change or correction.
The provisions of this paragraph shall not affect the time within which
or the amount for which an assessment may otherwise be made.
4. Omission of income on return.--The tax may be assessed at any time
within six years after the return was filed if a taxpayer omits from
gross income required to be reported on a return under any of the named
parts an amount properly includable therein which is in excess of
twenty-five percentum of the amount of gross income stated in the
return.
For purposes of this subdivision--
(a) the term "gross income" means gross income for federal income tax
purposes as reportable on a return under part two of this title and
"gross earnings," "gross income," "gross operating income" and "gross
direct premiums less return premiums," as those terms are used in
whichever of the named parts is applicable;
(b) there shall not be taken into account any amount which is omitted
in the return if such amount is disclosed in the return, or in a
statement attached to the return, in a manner adequate to apprise the
director of finance of the nature and amount of such item.
5. Suspension of running of period of limitations. The running of the
period of limitations on assessment or collection of tax or other amount
(or of a transferee's liability) shall, after the mailing of a notice of
deficiency, be suspended for the period during which the director of
finance is prohibited under subdivision three of section seventy-two
from making the assessment or from collecting by levy.
§ 75. Interest on underpayment. 1. General.--If any amount of tax is
not paid on or before the last date prescribed in whichever of the named
parts is applicable for payment, interest on such amount at the rate set
by the commissioner of finance pursuant to section eighty-seven, or, if
no rate is set, at the rate of six percentum per annum shall be paid for
the period from such last date to the date paid, whether or not any
extension of time for payment was granted. Interest under this
subdivision shall not be paid if the amount thereof is less than one
dollar.
2. Exception as to estimated tax.--This section shall not apply to any
failure to pay estimated tax under part two or part three of this title.
3. Exception for mathematical error.--No interest shall be imposed on
any underpayment of tax due solely to mathematical error if the taxpayer
files a return within the time prescribed in whichever of the named
parts is applicable (including any extension of time) and pays the
amount of underpayment within three months after the due date of such
return, as it may be extended.
5. Suspension of interest on deficiencies.--If a waiver of
restrictions on assessment of a deficiency has been filed by the
taxpayer, and if notice and demand by the director of finance for
payment of such deficiency is not made within thirty days after the
filing of such waiver, interest shall not be imposed on such deficiency
for the period beginning immediately after such thirtieth day and ending
with the date of notice and demand.
6. Tax reduced by carryback.--If the amount of tax under part two for
any taxable year is reduced by reason of a carryback of a net operating
loss, such reduction in tax shall not affect the computation of interest
under this section for the period ending with the filing date for the
taxable year in which the net operating loss arises. Such filing date
shall be determined without regard to extensions of time to file.
7. Interest treated as tax.--Interest under this section shall be paid
upon notice and demand and shall be assessed, collected and paid in the
same manner as the taxes under the named parts. Any reference in this
part to the tax imposed by the named parts, or any of them, shall be
deemed also to refer to interest imposed by this section on such tax.
8. Interest on penalties or additions to tax.--Interest shall be
imposed under subdivision one in respect of any assessable penalty or
addition to tax only if such assessable penalty or addition to tax is
not paid within ten days from the date of the notice and demand therefor
under subdivision two of section eighty-three and in such case interest
shall be imposed only for the period from such date of the notice and
demand to the date of payment.
9. Payment prior to notice of deficiency.--If, prior to the mailing to
the taxpayer of a notice of deficiency under subdivision two of section
seventy-two, the director of finance mails to the taxpayer a notice of
proposed increase of tax and within thirty days after the date of the
notice of proposed increase the taxpayer pays all amounts shown on the
notice to be due to the director of finance, no interest under this
section on the amount so paid shall be imposed for the period after the
date of such notice of proposed increase.
10. Payment within ninety days after notice of deficiency.--If a
notice of deficiency under section seventy-two is mailed to the
taxpayer, and the total amount specified in such notice is paid on or
before the ninetieth day after the date of mailing, interest under this
section shall not be imposed for the period after the date of the
notice.
11. Payment within ten days after notice and demand.--If notice and
demand is made for payment of any amount under subdivision two of
section eighty-three, and if such amount is paid within ten days after
the date of such notice and demand, interest under this section on the
amount so paid shall not be imposed for the period after the date of
such notice and demand.
12. Limitation on assessment and collection.--Interest prescribed
under this section may be assessed and collected at any time during the
period within which the tax or other amount to which such interest
relates may be assessed and collected, respectively.
13. Interest on erroneous refund.--Any portion of tax or other amount
which has been erroneously refunded, and which is recoverable by the
commissioner of finance, shall bear interest at the rate set by the
commissioner of finance pursuant to section eighty-seven, or, if no rate
is set, at the rate of six percentum per annum from the date of the
payment of the refund, but only if it appears that any part of the
refund was induced by fraud or a misrepresentation of a material fact.
14. Satisfaction by credits.--If any portion of a tax is satisfied by
credit of an overpayment, then no interest shall be imposed under this
section on the portion of the tax so satisfied for any period during
which, if the credit had not been made, interest would have been
allowable with respect to such overpayment.
§ 76. Additions to tax and civil penalties. 1. Failure to file
return.--In case of failure to file a return under the named parts on or
before the prescribed date (determined with regard to any extension of
time for filing), unless it is shown that such failure is due to
reasonable cause and not due to willful neglect, there shall be added to
the amount required to be shown as tax on such return five percentum of
the amount of such tax if the failure is for not more than one month,
with an additional five percentum for each additional month or fraction
thereof during which such failure continues, not exceeding twenty-five
percentum in the aggregate. For this purpose, the amount of tax required
to be shown on the return shall be reduced by the amount of any part of
the tax which is paid on or before the date prescribed for payment of
the tax and by the amount of any credit against the tax which may be
claimed upon the return.
2. Deficiency due to negligence.--If any part of a deficiency is due
to negligence or intentional disregard of this part or any of the named
parts or rules or regulations thereunder (but without intent to
defraud), there shall be added to the tax an amount equal to five
percentum of the deficiency.
3. Failure to file declaration or underpayment of estimated tax.--If
any taxpayer fails to file a declaration of estimated tax under part two
or part three, or fails to pay all or any part of an amount which is
applied as an installment against such estimated tax, it shall be deemed
to have made an underpayment of estimated tax. There shall be added to
the tax for the taxable year an amount at the rate set by the
commissioner of finance pursuant to section eighty-seven, or, if no rate
set, at the rate of six percentum per annum upon the amount of the
underpayment for the period of the underpayment but not beyond the
fifteenth day of the third month following the close of the taxable
year. The amount of the underpayment shall be, with respect to any
installment of estimated tax computed on the basis of the preceding
year's tax, the excess of the amount required to be paid over the
amount, if any, paid on or before the last day prescribed for such
payment or, with respect to any other installment of estimated tax, the
excess of the amount of the installment which would be required to be
paid if the estimated tax were equal to ninety percentum of the tax
shown on the return for the taxable year (or if no return was filed,
ninety per centum of the tax for such year) over the amount, if any, of
the installment paid on or before the last day prescribed for such
payment. In any case in which there would be no underpayment if "eighty
per centum" were substituted for "ninety per centum" each place it
appears in this subdivision, the addition to the tax shall be equal to
seventy-five per centum of the amount otherwise determined. No
underpayment shall be deemed to exist with respect to a declaration or
installment otherwise due on or after the termination of existence of
the taxpayer.
4. Exception to addition for underpayment of estimated tax.--The
addition to tax under subdivision three with respect to any underpayment
of any amount which is applied as an installment against estimated tax
under part two or part three of this title shall not be imposed if the
total amount of all payments of estimated tax made on or before the last
date prescribed for the payment of any such amount equals or exceeds the
amount which would have been required to be paid on or before such date
if the estimated tax were whichever of the following is the least--
(a) The tax shown on the return of the taxpayer for the preceding
taxable year, if a return showing a liability for tax was filed by the
taxpayer for the preceding taxable year and such preceding year was a
taxable year of twelve months, or
(b) An amount equal to the tax computed at the rates applicable to the
taxable year, but otherwise on the basis of the facts shown on the
return of the taxpayer for, and the law applicable to, the preceding
taxable year, or
(c) (i) An amount equal to ninety percentum of the tax for the taxable
year computed by placing on an annualized basis the taxable income--
(1) for the first three months or the first five months of the taxable
year, in the case of the installment required to be paid in the sixth
month,
(2) for the first six months, the first eight months or the first nine
months of the taxable year, in the case of the installment required to
be paid in the tenth month, and
(3) for the first nine months, the first eleven months or the full
twelve months of the taxable year, in the case of the installment
required to be paid in the first month of the next succeeding year.
(ii) For purposes of subparagraph (i), the taxable income shall be
placed on an annualized basis by--
(1) multiplying it by twelve (or, in the case of a taxable year of
less than twelve months, the number of months in the taxable year), and
(2) dividing the resulting amount by the number of months in the
taxable year (three, five, six, eight, nine, eleven or twelve, as the
case may be) referred to in subparagraph (i), or
(d) (i) If the base period percentage for any six consecutive months
of the taxable year equals or exceeds seventy percent, an amount equal
to ninety percent of the tax determined in the following manner--
(A) take the taxable income for all months during the taxable year
preceding the filing month,
(B) divide such amount by the base period percentage for all months
during the taxable year preceding the filing month,
(C) determine the tax on the amount determined under clause (B), and
(D) multiply the tax determined under clause (C) by the base period
percentage for the filing month and all months during the taxable year
preceding the filing month.
(ii) For purposes of subparagraph (i)--
(A) the base period percentage for any period of months shall be the
average percent which the taxable income for the corresponding months in
each of the three preceding taxable years bears to the taxable income
for the three preceding taxable years. The commissioner of finance may
by regulations provide for the determination of the base period
percentage in the case of reorganizations, new corporations, and other
similar circumstances, and
(B) the term "filing month" means the month in which the installment
is required to be paid.
5. Allocation of net income.--(a) Except as provided in paragraph (b)
hereof, paragraphs (a) and (b) of subdivision four of this section shall
not apply in the case of any corporation (or any predecessor
corporation) which had entire net income, or the portion thereof
allocated within the city, of one million dollars or more for any
taxable year during the three taxable years immediately preceding the
taxable year involved.
(b) The amount treated as the estimated tax under paragraphs (a) and
(b) of subdivision four of this section shall in no event be less than
seventy-five percent of the tax shown on the return for the taxable year
beginning in nineteen hundred eighty-three or, if no return was filed,
seventy-five percent of the tax for such year.
6. Deficiency due to fraud.--If any part of a deficiency is due to
fraud, there shall be added to the tax an amount equal to fifty
percentum of the deficiency. This amount shall be in lieu of any other
addition to tax imposed by subdivision one or two.
7. Additional penalty.--Any person who with fraudulent intent shall
fail to pay under the named parts any tax, or to make, render, sign or
certify any return or declaration of estimated tax, or to supply any
information within the time required by or under any of the named parts,
shall be liable to penalty of not more than one thousand dollars, in
addition to any other amounts required under this part to be imposed,
assessed and collected by the director of finance. The director of
finance shall have the power, in his discretion, to waive, reduce or
compromise any penalty under this subdivision.
8. Additions treated as tax.--The additions to tax and penalties
provided by this section shall be paid upon notice and demand and shall
be assessed, collected and paid in the same manner as taxes, and any
reference in this part to tax imposed by any of the named parts shall be
deemed also to refer to the additions to tax and penalties provided by
this section. For purposes of section seventy-two, this subdivision
shall not apply to--
(a) any addition to tax under subdivision one except as to that
portion attributable to a deficiency;
(b) any addition to tax under subdivision three; and
(c) any additional penalty under subdivision seven.
9. Determination of deficiency.--For purposes of subdivisions two and
six the amount shown as the tax by the taxpayer upon its return shall be
taken into account in determining the amount of the deficiency only if
such return was filed on or before the last day prescribed for the
filing of such return, determined with regard to any extension of time
for such filing.
10. Person defined.--For purposes of subdivision seven, the term
"person" includes an individual, corporation or partnership or an
officer or employee of any corporation (including a dissolved
corporation), or a member or employee of any partnership, who as such
officer, employee, or member is under a duty to perform the act in
respect of which the violation occurs.
11. Substantial understatement of liability.--If there is a
substantial understatement of tax for any taxable year, there shall be
added to the tax an amount equal to ten percent of the amount of any
underpayment attributable to such understatement. For purposes of this
subdivision, there is a substantial understatement of tax for any
taxable year if the amount of the understatement for the taxable year
exceeds the greater of ten percent of the tax required to be shown on
the return for the taxable year, or ten thousand dollars except that for
an electing small business corporation as defined in section thirteen
hundred sixty-one of the internal revenue code a substantial
understatement exists if the amount of the understatement exceeds ten
percent of the tax or five thousand dollars. For purposes of the
preceding sentence, the term "understatement" means the excess of the
amount of the tax required to be shown on the return for the taxable
year, over the amount of the tax imposed which is shown on the return.
The amount of the understatement under the preceding sentence shall be
reduced by that portion of the understatement which is attributable to
the tax treatment of any item by the taxpayer if there is or was
substantial authority for such treatment, or any item with respect to
which the relevant facts affecting the item's tax treatment are
adequately disclosed in the return or in a statement attached to the
return. The commissioner of finance may waive all or any part of the
addition to tax provided by this subdivision on a showing by the
taxpayer that there was reasonable cause for the understatement (or part
thereof) and that the taxpayer acted in good faith.
§ 77. Overpayment. 1. General.--The director of finance, within the
applicable period of limitations, may credit an overpayment of tax and
interest on such overpayment against any liability in respect of any tax
imposed by any of the named parts of this title or on the taxpayer who
made the overpayment, and the balance shall be refunded out of the
proceeds of the tax.
2. Credits against estimated tax.--The director of finance may
prescribe regulations providing for the crediting against the estimated
tax under part two or part three of this title for any taxable year of
the amount determined to be an overpayment of tax under any such part
for a preceding taxable year. If any overpayment of tax is so claimed as
a credit against estimated tax for the succeeding taxable year, such
amount shall be considered as a payment of the tax under part two or
part three of this title for the succeeding taxable year (whether or not
claimed as a credit in the declaration of estimated tax for such
succeeding taxable year), and no claim for credit or refund of such
overpayment shall be allowed for the taxable year for which the
overpayment arises.
3. Rule where no tax liability.--If there is no tax liability for a
period in respect of which an amount is paid as tax, such amount shall
be considered an overpayment.
4. Assessment and collection after limitation period.--If any amount
of tax is assessed or collected after the expiration of the period of
limitations properly applicable thereto, such amount shall be considered
an overpayment.
5. Assignment of overpayment.--A credit for an overpayment of tax
under any of the named parts may be assigned by the taxpayer to a
corporation liable to pay taxes under any of the named parts, and the
assignee of the whole or any part of such credit, on filing such
assignment with the director of finance, shall thereupon be entitled to
credit upon the books of the director of finance for the amount thereof
on its current account for taxes, in the same manner and to the same
effect as though the credit had originally been allowed in its favor.
6. Notwithstanding any other provision of law to the contrary, the
procedures for the enforcement of money judgments shall not apply to the
department of finance, or to any officer or employee of such department,
as a garnishee, with respect to any amount of money to be refunded or
credited to a taxpayer under this title.
§ 78. Limitations on credit or refund. 1. General.--Claim for credit
or refund of an overpayment of tax under any of the named parts shall be
filed by the taxpayer within three years from the time the return was
filed or two years from the time the tax was paid, whichever of such
periods expires the later, or if no return was filed, within two years
from the time the tax was paid. If the claim is filed within the three
year period, the amount of the credit or refund shall not exceed the
portion of the tax paid within the three years immediately preceding the
filing of the claim plus the period of any extension of time for filing
the return. If the claim is not filed within the three year period, but
is filed within the two year period, the amount of the credit or refund
shall not exceed the portion of the tax paid during the two years
immediately preceding the filing of the claim. Except as otherwise
provided in this section, if no claim is filed, the amount of a credit
or refund shall not exceed the amount which would be allowable if a
claim had been filed on the date the credit or refund is allowed. For
special restriction in a proceeding on a claim for refund of tax paid
pursuant to an assessment made as a result of (a) a net operating loss
carryback, or (b) an increase or decrease in federal taxable income or
federal tax, or (c) a federal change or correction or renegotiation, or
computation or recomputation of tax, which is treated in the same manner
as if it were a deficiency for federal income tax purposes, see
paragraph (g) of subdivision three of section seventy-four.
2. Extension of time by agreement.--If an agreement under the
provisions of paragraph (b) of subdivision three of section seventy-four
(extending the period for assessment of tax) is made within the period
prescribed in subdivision one for the filing of a claim for credit or
refund, the period for filing a claim for credit or refund, or for
making credit or refund if no claim is filed, shall not expire prior to
six months after the expiration of the period within which an assessment
may be made pursuant to the agreement or any extension thereof. The
amount of such credit or refund shall not exceed the portion of the tax
paid after the execution of the agreement and before the filing of the
claim or the making of the credit or refund, as the case may be, plus
the portion of the tax paid within the period which would be applicable
under subdivision one if a claim had been filed on the date the
agreement was executed.
3. Notice of change or correction of fedearl income.--If a taxpayer is
required by part two or part three of this title to file a report or
amended return in respect of (a) a decrease or increase in federal
taxable income or federal tax, or (b) a federal change or correction or
renegotiation, or computation or recomputation of tax, which is treated
in the same manner as if it were an overpayment for federal income tax
purposes, claim for credit or refund of any resulting overpayment of tax
shall be filed by the taxpayer within two years from the time such
report or amended return was required to be filed with the commissioner
of finance. If the report or amended return required by part two or part
three of this title is not filed within the ninety day period therein
specified, interest on any resulting refund or credit shall cease to
accrue after such ninetieth day. The amount of such credit or refund--
(c) shall be computed without change of the allocation of income or
capital upon which the taxpayer's return (or any additional assessment)
was based, and
(d) shall not exceed the amount of the reduction in tax attributable
to such decrease or increase in federal taxable income or federal tax or
to such federal change or correction or renegotiation, or computation or
recomputation of tax.
This subdivision shall not affect the time within which or the amount
for which a claim for credit or refund may be filed apart from this
subdivision.
4. Overpayment attributable to net operating loss carryback.--A claim
for credit or refund of so much of an overpayment under part two of this
title as is attributable to the application to the taxpayer of a net
operating loss carryback shall be filed within three years from the time
the return was due for the taxable year of the loss, or within the
period prescribed in subdivision two in respect of such taxable year, or
within the period prescribed in subdivision three, where applicable, in
respect of the taxable year to which the net operating loss is carried
back, whichever expires the latest. Where such claim for credit or
refund is filed after the expiration of the period prescribed in
subdivision one or in subdivision two where applicable, in respect of
the taxable year to which the net operating loss is carried back, the
amount of such credit or refund shall be computed without change of the
allocation of income or capital upon which the taxpayer's return (or any
additional assessment) was based.
5. Failure to file claim within prescribed period.--No credit or
refund shall be allowed or made, except as provided in subdivision six
of this section or subdivision four of section eighty-one, after the
expiration of the applicable period of limitation specified in this
part, unless a claim for credit or refund is filed by the taxpayer
within such period. Any later credit shall be void and any later refund
erroneous. No period of limitations specified in any other law shall
apply to the recovery by a taxpayer of moneys paid in respect of taxes
under the named parts.
6. Effect of petition to director of finance.--If a notice of
deficiency for a taxable year has been mailed to the taxpayer under
section seventy-two and if the taxpayer files a timely petition with the
director of finance under section eighty, he may determine that the
taxpayer has made an overpayment for such year (whether or not he also
determines a deficiency for such year). No separate claim for credit or
refund for such year shall be filed, and no credit or refund for such
year shall be allowed or made, except--
(a) as to overpayment determined by a decision of the director of
finance which has become final; and
(b) as to any amount collected in excess of an amount computed in
accordance with the decision of the director of finance which has become
final; and
(c) as to any amount collected after the period of limitation upon the
making of levy for collection has expired; and
(d) as to any amount claimed as a result of a change or correction
described in subdivision three.
7. Limit on amount of credit or refund.--The amount of overpayment
determined under subdivision six shall, when the decision of the
director of finance has become final, be credited or refunded in
accordance with subdivision one of section seventy-seven and shall not
exceed the amount of tax which the director of finance determines as
part of his decision was paid--
(a) after the mailing of the notice of deficiency, or
(b) within the period which would be applicable under subdivisions
one, two or three, if on the date of the mailing of the notice of
deficiency a claim had been filed (whether or not filed) stating the
grounds upon which the commissioner of finance finds that there is an
overpayment.
For special restriction on credit or refund in a proceeding on a
petition for redetermination of a deficiency where the notice of
deficiency is issued as a result of (i) a net operating loss carryback,
or (ii) an increase or decrease in federal taxable income or federal
tax, or (iii) a federal change or correction or renegotiation, or
computation or recomputation of tax, which is treated in the same manner
as if it were a deficiency for federal income tax purposes, see
paragraph (g) of subdivision three of section seventy-four.
8. Early return.--For purposes of this section, any return filed
before the last day prescribed for the filing thereof shall be
considered as filed on such last day, determined without regard to any
extension of time granted the taxpayer.
9. Prepaid tax.--For purposes of this section, any tax paid by the
taxpayer before the last day prescribed for its payment (including any
amount paid by the taxpayer as estimated tax for a taxable year) shall
be deemed to have been paid by it on the fifteenth day of the third
month following the close of the taxable year the income of which is the
basis for tax under part two or part three of this title, or on the last
day prescribed in subpart one of part four or in part five for the
filing of a final return for such taxable year, or portion thereof,
determined in all cases without regard to any extension of time granted
the taxpayer.
10. Cross reference.--For provision barring refund of overpayment
credited against tax of a succeeding year, see subdivision two of
section seventy-seven.
11. Notice of change or correction of sales and compensating use tax
liability.--If a taxpayer is required by part two of this title to file
a report or amended return in respect of a change or correction of its
sales and compensating use tax liability, claim for credit or refund of
any resulting overpayment of tax shall be filed by the taxpayer within
two years from the time such report or amended return was required to be
filed with the commissioner of finance. If the report or amended return
required by part two of that title is not filed within the ninety day
period therein specified, interest on any resulting refund or credit
shall cease to accrue after such ninetieth day. The amount of such
credit or refund shall be computed without change of the allocation of
income or capital upon which the taxpayer's return (or any additional
assessment) was based, and shall not exceed the amount of the reduction
in tax attributable to such change or correction of sales and
compensating use tax liability.
This subdivision shall not affect the time within which or the amount
for which a claim for credit or refund may be filed apart from this
subdivision.
§ 79. Interest on overpayment. 1. General.--Notwithstanding the
provisions of section three-a of the general municipal law, interest
shall be allowed and paid as follows at the rate set by the commissioner
of finance pursuant to section eighty-seven, or, if no rate is set, at
the rate of six percent per annum upon any overpayment in respect of the
tax imposed by any of the named parts:
(a) from the date of the overpayment to the due date of an amount
against which a credit is taken;
(b) from the date of the overpayment to a date (to be determined by
the commissioner of finance) preceding the date of a refund check by not
more than thirty days, whether or not such refund check is accepted by
the taxpayer after tender of such check to the taxpayer. The acceptance
of such check shall be without prejudice to any right of the taxpayer to
claim any additional overpayment and interest thereon.
(c) late returns. Notwithstanding paragraph (a) or (b) of this
subdivision, in the case of a return of tax which is filed after the
last date prescribed for filing such return (determined with regard to
extensions), no interest shall be allowed or paid for any day before the
date on which the return is filed.
No interest shall be allowed or paid if the amount thereof is less
than one dollar.
2. Advance payment of tax and estimated tax.--The provisions of
subdivisions eight and nine of section seventy-eight applicable in
determining the date of payment of tax for purposes of determining the
period of limitations on credit or refund, shall be applicable in
determining the date of payment for purposes of this section.
3. Tax refund within three months of due date of tax.--If any
overpayment of tax imposed by any of the named parts is refunded within
three months after the last date prescribed (or permitted by extension
of time) for filing the return of such tax or within three months after
the return was filed, whichever is later, no interest shall be allowed
under this section on such overpayment.
4. Refund of tax caused by carryback.--For purposes of this section,
if any overpayment of tax imposed by part two of this title results from
a carryback of a net operating loss, such overpayment shall be deemed
not to have been made prior to the filing date for the taxable year in
which such net operating loss arises. Such filing date shall be
determined without regard to extensions of time to file. For purposes of
subdivision three of this section any overpayment described herein shall
be treated as an overpayment for the loss year and such subdivision
shall be applied with respect to such overpayment by treating the return
for the loss year as not filed before claim for such overpayment is
filed. The term "loss year" means the taxable year in which such loss
arises.
5. No interest until return in processible form.--
(a) For purposes of subdivisions one and three of this section, a
return shall not be treated as filed until it is filed in processible
form.
(b) For purposes of paragraph (a) of this subdivision, a return is in
a processible form if--
(A) such return is filed on a permitted form, and
(B) such return contains--
(i) the taxpayer's name, address, and identifying number and the
required signatures, and
(ii) sufficient required information (whether on the return or on
required attachments) to permit the mathematical verification of tax
liability shown on the return.
6. Cross reference.--For provision terminating interest after failure
to file a report or amended return under part two or part three, see
subdivision three of section seventy-eight.
§ 80. Petition to director of finance. 1. General. The form of a
petition to the director of finance, and further proceedings before the
director of finance in any case initiated by the filing of a petition,
shall be governed by such rules as the director of finance shall
prescribe. No petition shall be denied in whole or in part without
opportunity for a hearing on reasonable prior notice. Such hearing shall
be conducted by the director of finance, or by a hearing officer
designated by the director of finance to take evidence and report to the
director of finance. The director of finance shall decide the case as
quickly as practicable. Notice of decision shall be mailed promptly to
the taxpayer by certified or registered mail at its last known address,
and such notice shall set forth the director's findings of fact and a
brief statement of the grounds of decision in each case decided in whole
or in part adversely to the taxpayer.
2. Petition for redetermination of a deficiency.--Within ninety days,
or one hundred fifty days if the notice is addressed to a taxpayer whose
last known address is outside of the United States, after the mailing of
the notice of deficiency authorized by section seventy-two, the taxpayer
may file a petition with the commissioner of finance for a
redetermination of the deficiency. Such petition may also assert a claim
for refund for the same taxable year or years, subject to the
limitations of subdivision seven of section seventy-eight. For special
restriction where the notice of deficiency relates to a proposed
assessment made as a result of (a) a net operating loss carryback, (b)
an increase or decrease in federal taxable income or federal tax, or (c)
a federal change or correction or renegotiation, or computation or
recomputation of tax, which is treated in the same manner as if it were
a deficiency for federal income tax purposes, see paragraph (g) of
subdivision three of section seventy-four.
3. Petition for refund.--A taxpayer may file a petition with the
director of finance for the amounts asserted in a claim for refund if--
(a) the taxpayer has filed a timely claim for refund with the director
of finance,
(b) the taxpayer has not previously filed with the director of finance
a timely petition under subdivision two for the same taxable year unless
the petition under this subdivision relates to a separate claim for
credit or refund properly filed under subdivision six of section
seventy-eight, and
(c) either (1) six months have expired since the claim was filed, or
(2) the director of finance has mailed to the taxpayer, by registered or
certified mail, a notice of disallowance of such claim in whole or in
part.
No petition under this subsection shall be filed more than two years
after the date of mailing of a notice of disallowance, unless prior to
the expiration of such two year period it has been extended by written
agreement between the taxpayer and the director of finance. If a
taxpayer files a written waiver of the requirement that he be mailed a
notice of disallowance, the two year period prescribed by this
subdivision for filing a petition for refund shall begin on the date
such waiver is filed.
4. Assertion of deficiency after filing petition.--
(a) Petition for redetermination of deficiency.--If a taxpayer files
with the director of finance a petition for redetermination of a
deficiency, the director of finance shall have power to determine a
greater deficiency then asserted in the notice of deficiency and to
determine if there should be assessed any addition to tax or penalty
provided in section seventy-six, if claim therefor is asserted at or
before the hearing under rules of the director of finance.
(b) Petition for refund.--If the taxpayer files with the director of
finance a petition for credit or refund for a taxable year, the director
of finance may
(1) determine a deficiency for such year as to any amount of
deficiency asserted at or before the hearing under rules of the director
of finance and within the period in which an assessment would be timely
under section seventy-four, or
(2) deny so much of the amount for which credit or refund is sought in
the petition, as is offset by other issues pertaining to the same
taxable year which are asserted at or before the hearing under rules of
the director of finance.
(c) Opportunity to respond.--A taxpayer shall be given a reasonable
opportunity to respond to any matters asserted by the director of
finance under this subdivision.
(d) Restriction on further notices of deficiency.--If the taxpayer
files a petition with the commissioner of finance under this section, no
notice of deficiency under section seventy-two may thereafter be issued
by the commissioner of finance for the same taxable year, except in case
of fraud or with respect to an increase or decrease in federal taxable
income or federal tax or a federal change or correction or
renegotiation, or computation or recomputation of tax, which is treated
in the same manner as if it were a deficiency for federal income tax
purposes, required to be reported under part two or part three of this
title or with respect to a state change or correction of sales and
compensating use tax liability required to be reported under part two of
this title.
5. Burden of proof.--In any case before the director of finance under
this part, the burden of proof shall be upon the petitioner except for
the following issues, as to which the burden of proof shall be upon the
director of finance:
(a) whether the petitioner has been guilty of fraud with intent to
evade tax;
(b) whether the petitioner is liable as the transferee of property of
a taxpayer, but not to show that the taxpayer was liable for the tax;
and
(c) whether the petitioner is liable for any increase in a deficiency
where such increase is asserted initially after a notice of deficiency
was mailed and a petition under this section filed, unless such increase
in deficiency is the result of an increase or decrease in federal
taxable income or federal tax or a federal change or correction or
renegotiation, or computation or recomputation of tax, which is treated
in the same manner as if it were a deficiency for federal income tax
purposes, required to be reported under part two or part three of this
title, and of which increase, decrease, change or correction or
renegotiation, or computation or recomputation, the commissioner of
finance had no notice at the time he mailed the notice of deficiency or
unless such increase in deficiency is the result of a change or
correction of sales and compensating use tax liability required to be
reported under part two of this title, and of which change or correction
the commissionr of finance had no notice at the time he mailed the
notice of deficiency.
6. Evidence of related federal or state determination.--Evidence of a
federal or state determination relating to issues raised in a case
before the director of finance under this section shall be admissible,
under rules established by the director of finance.
7. Jurisdiction over other years.--The director of finance shall
consider such facts with relation to the taxes for other years as may be
necessary correctly to determine the tax for the taxable year, but in so
doing shall have no jurisdiction to determine whether or not the tax for
any other year has been overpaid or underpaid.
§ 81. Review of director's decision. 1. General.--A decision of the
director of finance shall be subject to judicial review at the instance
of any taxpayer affected thereby in the manner provided by law for the
review of a final decision or action of administrative agencies of the
city. An application by a taxpayer for such review must be made within
four months after notice of the decision is sent by certified or
registered mail to the taxpayer.
2. Judicial review exclusive remedy of taxpayer.--The review of a
decision of the director of finance provided by this section shall be
the exclusive remedy available to any taxpayer for the judicial
determination of the liability of the taxpayer for the taxes imposed by
the named parts.
3. Assessment pending review; review bond.--Irrespective of any
restrictions on the assessment and collection of deficiencies, the
director of finance may assess a deficiency after the expiration of the
period specified in subdivision one, notwithstanding that an application
for judicial review in respect of such deficiency has been duly made by
the taxpayer unless the taxpayer, at or before the time the taxpayer's
application for review is made, has paid the deficiency, has deposited
with the director of finance the amount of the deficiency, or has filed
with the director of finance a bond (which may be a jeopardy bond under
subdivision eight of section eighty-five) in the amount of the portion
of the deficiency (including interest and other amounts) in respect of
which the application for review is made and all costs and charges which
may accrue against the taxpayer in the prosecution of the proceeding,
including costs of all appeals, and with surety approved by a justice of
the supreme court of the state, conditioned upon the payment of the
deficiency (including interest and other amounts) as finally determined
and such costs and charges. If as a result of a waiver of the
restrictions on the assessment and collection of a deficiency any part
of the amount determined by the director of finance is paid after the
filing of the review bond, such bond shall, at the request of the
taxpayer, be proportionately reduced.
4. Credit, refund or abatement after review.--If the amount of a
deficiency determined by the director of finance is disallowed in whole
or in part by the court of review, the amount so disallowed shall be
credited or refunded to the taxpayer, without the making of claim
therefor, or, if payment has not been made, shall be abated.
5. Date of finality of director of finance decision.--A decision of
the director of finance shall become final upon the expiration of the
period specified in subdivision one for making an application for
review, if no such application has been duly made within such time, or
if such application has been duly made, upon expiration of the time for
all further judicial review, or upon the rendering by the director of
finance of a decision in accordance with the mandate of the court on
review. Notwithstanding the foregoing, for the purpose of making an
application for review, the decision of the director of finance shall be
deemed final on the date the notice of decision is sent by certified or
registered mail to the taxpayer.
§ 82. Mailing rules; holidays. 1. Timely mailing.--If any claim,
statement, notice, petition, or other document (including to the extent
authorized by the director of finance, a return or a declaration of
estimated tax) required to be filed within a prescribed period or on or
before a prescribed date under authority of any provision of this part
or of the named parts is, after such period or such date, delivered by
United States mail to the director of finance, bureau, office, officer
or person with which or with whom such document is required to be filed,
the date of the United States postmark stamped on the envelope shall be
deemed to be the date of delivery. This subdivision shall apply only if
the postmark date falls within the prescribed period or on or before the
prescribed date for the filing of such document, determined with regard
to any extension granted for such filing, and only if such document was
deposited in the mail, postage prepaid, properly addressed to the
director of finance, bureau, office, officer or person with which or
with whom the document is required to be filed. If any document is sent
by United States registered mail, such registration shall be prima facie
evidence that such document was delivered to the director of finance,
bureau, office, officer or person to which or to whom addressed. To the
extent that the director of finance shall prescribe by regulation,
certified mail may be used in lieu of registered mail under this
subdivision. This subdivision shall apply in the case of postmarks not
made by the United States Post Office only if and to the extent provided
by regulations of the director of finance.
2. Last known address.--For purposes of this part, a taxpayer's last
known address shall be the address given in the last return filed by it,
unless subsequently to the filing of such return the taxpayer shall have
notified the director of finance of a change of address.
3. Last day a Saturday, Sunday or legal holiday.--When the last day
prescribed under authority of this part or the named parts (including
any extension of time) for performing any act falls on a Saturday,
Sunday, or legal holiday in the state, the performance of such act shall
be considered timely if it is performed on the next succeeding day which
is not a Saturday, Sunday or legal holiday.
§ 83. Collection, levy and liens.--1. Collection procedures.--The
taxes imposed by the named parts shall be collected by the director of
finance, and he may establish the mode or time for the collection of any
amount due him thereunder if not otherwise specified. The director of
finance shall, upon request, give a receipt for any sum collected
thereunder. The director of finance may authorize banks or trust
companies which are depositaries or financial agents of the city to
receive and give a receipt for any tax imposed under the named parts in
such manner, at such times, and under such conditions as the director of
finance may prescribe; and the director of finance shall prescribe the
manner, times and conditions under which the receipt of such tax by such
banks and trust companies is to be treated as payment of such tax to the
director of finance.
2. Notice and demand for tax.--The director of finance shall as soon
as practicable give notice to each taxpayer liable for any amount of
tax, addition to tax, penalty or interest, which has been assessed but
remains unpaid, stating the amount and demanding payment thereof. Such
notice shall be left at the principal office of the taxpayer in the city
or shall be sent by mail to such taxpayer's last known address. Except
where the director of finance determines that collection would be
jeopardized by delay, if any tax is assessed prior to the last date
(including any date fixed by extension) prescribed for payment of such
tax, payment of such tax shall not be demanded until after such date.
3. Issuance of warrant after notice and demand.--If any corporation or
other person liable under the named parts for the payment of any tax,
addition to tax, penalty or interest neglects or refuses to pay the same
within ten days after notice and demand therefor is given to such
corporation or other person under subdivision two, the director of
finance may within six years after the date of such assessment issue a
warrant under his official seal directed to the sheriff of any county of
the state, or to any officer or employee of the department of finance,
commanding him to levy upon and sell the real and personal property of
such corporation or other person for the payment of the amount assessed,
with the cost of executing the warrant, and to return such warrant to
the director of finance and pay to him the money collected by virtue
thereof within sixty days after the receipt of the warrant. If the
director of finance finds that the collection of the tax or other amount
is in jeopardy, notice and demand for immediate payment of such tax may
be made by the director of finance and upon failure or refusal to pay
such tax or other amount the director of finance may issue a warrant
without regard to the ten-day period provided in this subdivision.
4. Copy of warrant to be filed and lien to be created.--Any sheriff or
officer or employee who receives a warrant under subdivision three shall
within five days thereafter file a copy with the clerk of the
appropriate county. The clerk shall thereupon enter in the judgment
docket, in the column for judgment debtors, the name of the taxpayer
mentioned in the warrant, and in appropriate columns the tax or other
amounts for which the warrant is issued and the date when such copy is
filed; and such amount shall thereupon be a binding lien upon the real,
personal and other property of the taxpayer.
5. Judgment.--When a warrant has been filed with the county clerk the
director of finance shall, on behalf of the city, be deemed to have
obtained judgment against the taxpayer for the tax or other amounts.
6. Execution.--The sheriff or officer or employee shall thereupon
proceed upon the judgment in all respects, with like effect, and in the
same manner prescribed by law in respect to executions issued against
property upon judgments of a court of record, and a sheriff shall be
entitled to the same fees for his services in executing the warrant, to
be collected in the same manner. An officer or employee of the
department of finance may proceed in any county or counties of this
state and shall have all the powers of execution conferred by law upon
sheriffs, but shall be entitled to no fee or compensation in excess of
actual expenses paid in connection with the execution of the warrant.
7. Foreign corporations.--Where a notice and demand under subdivision
two shall have been given to a foreign corporation or other person who
is not then a resident, and it appears to the director of finance that
it is not practicable to find in the state property of such foreign
corporation or nonresident person sufficient to pay the entire balance
of tax or other amount owing by such foreign corporation or nonresident
person, the director of finance may, in accordance with subdivision
three, issue a warrant directed to an officer or employee of the
department of finance, a copy of which warrant shall be mailed by
certified or registered mail to such foreign corporation or nonresident
person at its last known address, subject to the rules for mailing
provided in subdivision one of section seventy-two. Such warrant shall
command the officer or employee to proceed in New York county, and he
shall, within five days after receipt of the warrant, file the warrant
and obtain a judgment in accordance with this section. Thereupon the
director of finance may authorize the institution of any action or
proceeding to collect or enforce the judgment in any place and by any
procedure that a civil judgment of the supreme court of the state of New
York could be collected or enforced. The director of finance may also,
in his discretion, designate agents or retain counsel for the purpose of
collecting, outside the state, any unpaid taxes, additions to tax,
penalties or interest which have been assessed under this part or under
any of the named parts, against foreign corporations or other
non-resident persons, may fix the compensation of such agents and
counsel to be paid out of money appropriated or otherwise lawfully
available for payment thereof, and may require of them bonds or other
security for the faithful performance of their duties, in such form and
in such amount as the director of finance shall deem proper and
sufficient.
8. Action by city for recovery of taxes.--Action may be brought by the
corporation counsel at the instance of the director of finance to
recover the amount of any unpaid taxes, additions to tax, penalties or
interest which have been assessed under this part or under the named
parts within six years prior to the date the action is commenced.
9. Release of lien.--The director of finance, if it finds that the
interests of the city will not thereby be jeopardized, and upon such
conditions as it may require, may release any property from the lien of
any warrant filed under subdivision four or seven for unpaid taxes,
additions to tax, penalties and interest filed pursuant to this section,
and such release may be recorded in the office of any recording officer
in which such warrant has been filed.
10. Lien from due date of return.--(a) In addition to any other lien
provided for in this section, each tax imposed by the named parts shall
become a lien on the date on which the return is required to be filed
(without regard to any extension of time for filing such return), except
that such tax shall become a lien not later than the date the taxpayer
ceases to be subject to the tax imposed by any of the named parts, or to
do business in this state in a corporate or organized capacity. Each
such tax shall be a lien and binding upon the real and personal property
of the taxpayer, or of a transferee liable to pay the same, until the
same is paid in full, except that no lien for any additional tax
assessed pursuant to this part shall be enforceable against property
which prior to the issuance to the taxpayer of a notice of deficiency
under section seventy-two had been transferred in good faith to a bona
fide transferee for value. But the lien of each such tax shall be
subject to the lien of any mortgage indebtedness existing against real
property previous to the time when the tax became a lien and where such
mortgage indebtedness has been incurred in good faith and was not given,
directly or indirectly, to any officer or stockholder of the corporation
owning such real property, whether as a purchase money mortgage or
otherwise, and shall also be subject to the lien of local taxes and
assessments, without regard to when the lien for such taxes and
assessments may have accrued. If the return is filed and the tax shown
on the report to be due is paid on or before the date on which the
report is required to be filed, without regard to any extensions of time
for filing such report, the lien shall not be enforceable against the
interest of any purchaser or mortgagee in property which is thereafter,
but prior to the issuance to the taxpayer of a notice of deficiency
under section seventy-two transferred to a bona fide purchaser for
value, or mortgaged where the mortgage indebtedness is incurred in good
faith and the mortgage is not given, directly or indirectly, to any
officer or stockholder of the corporation. In any action to foreclose
any such mortgage, or to foreclose the lien of local taxes or
assessments, to which the people of the state, or the city shall have
been made a party defendant by reason of the existence of a lien for any
such tax, or if no such tax was due or was a lien at the time of the
commencement of such action and the filing of the notice of pendency
thereof, but such a tax becomes due or becomes a lien subsequent to the
time of the commencement of such action and the filing of the notice of
pendency thereof, such real property shall be sold and conveyed in such
action free from any such tax lien, and any such tax lien may become a
lien on any surplus moneys which may result from such sale, to be
determined in the proceedings for the distribution of such surplus
moneys. Where title to real property passes from an individual, or from
a corporation owing no tax, to another corporation which is in default
for such tax, the lien herein provided shall not be enforceable except
as to any equity after the prior mortgage or purchase money mortgage
encumbrance.
(b) The director of finance may, upon application made to him and the
payment of a fee of five dollars, release any real property from the
lien under this subdivision, provided payment be made to the director of
finance of such a sum as the director of finance shall deem adequate
consideration for such release, or deposit be made of such security or
such bond be filed as the director of finance shall deem proper to
secure payment of any such tax. The application for such release shall
contain an accurate description of the property to be released together
with such information as the director of finance may require. Such
release may be recorded in any office in which conveyances of real
estate are entitled to be recorded.
(c) All taxes, additions to tax, penalties and interest which have
become a lien under this subdivision shall, after the expiration of ten
years from date they become due and payable, cease to be a lien (1) as
to real estate in the hands of persons who are owners thereof who would
be purchasers in good faith but for such taxes, additions to tax,
penalties or interest and (2) as to the lien on real estate of mortgages
held by persons who would be holders thereof in good faith but for such
taxes, additions to tax, penalties or interest, as against such
purchasers or holders. The limitations herein provided for shall not
apply to any transfer from a corporation to a person or corporation with
intent to avoid payment of any taxes, or where with like intent the
transfer is made to a grantee corporation, or any subsequent grantee
corporation, controlled by such grantor or which has any community of
interest with it, either through stock ownership or otherwise.
§ 84. Transferees. 1. General.--The liability, at law or in equity,
of a transferee of property of a taxpayer for any tax, additions to tax,
penalty or interest due the director of finance under this part or under
the named parts, shall be assessed, paid, and collected in the same
manner and subject to the same provisions and limitations as in the case
of the tax to which the liability relates, except that the period of
limitations for assessment against the transferee shall be extended by
one year for each successive transfer, in order, from the original
taxpayer to the transferee involved, but not by more than three years in
the aggregate. The term transferee includes, in case of successive
transfers, donee, heir, legatee, devisee, distributee, and successor by
merger, consolidation or other reorganization.
2. Exceptions.--
(a) If before the expiration of the period of limitations for
assessment of liability of the transferee, a claim has been filed by the
director of finance in any court against the original taxpayer or the
last preceding transferee based upon the liability of the original
taxpayer, then the period of limitation for assessment of liability of
the transferee shall in no event expire prior to one year after such
claim has been finally allowed, disallowed or otherwise disposed of.
(b) If, before the expiration of the time prescribed in subdivision
one or the immediately preceding paragraph of this subdivision for the
assessment of the liability, the director of finance and the transferee
have both consented in writing to its assessment after such time, the
liability may be assessed at any time prior to the expiration of the
period agreed upon. The period so agreed upon may be extended by
subsequent agreements in writing made before the expiration of the
period previously agreed upon. For the purpose of determining the period
of limitation on credit or refund to the transferee or overpayments of
tax made by such transferee or overpayments of tax made by the
transferor as to which the transferee is legally entitled to credit or
refund, such agreement and any extension thereof shall be deemed an
agreement and extension thereof referred to in subdivision two of
section seventy-eight. If the agreement is executed after the expiration
of the period of limitation for assessment against the original
taxpayer, then in applying the limitations under subdivision two of
section seventy-eight on the amount of the credit or refund, the periods
specified in subdivision one of section seventy-eight shall be increased
by the period from the date of such expiration to the date of the
agreement.
3. Period for assessment against certain transferors.--For purposes of
this section, if any person is deceased or is a corporation which has
terminated its existence, the period of limitation for assessment
against such person or corporation shall be the period that would be in
effect had death or termination of existence not occurred.
4. Evidence.--The director of finance shall use his powers to make
available to the transferee evidence necessary to enable the transferee
to determine the liability of the original taxpayer and of any preceding
transferees, but without undue hardship to the original taxpayer or
preceding transferee. See subdivision three of section eighty for rule
as to burden of proof.
§ 85. Jeopardy assessment. 1. Authority for making.--If the director
of finance believes that the assessment or collection of a deficiency
will be jeopardized by delay, he shall, notwithstanding the provisions
of section seventy-two immediately assess such deficiency (together with
all interest, penalties and additions to tax provided for by law), and
notice and demand shall be made by the director of finance for the
payment thereof.
2. Notice of deficiency.--If the jeopardy assessment is made before
any notice in respect of the tax to which the jeopardy assessment
relates has been mailed under section seventy-two, then the director of
finance shall mail a notice under such section within sixty days after
the making of the assessment.
3. Amount assessable before decision of director of finance.--The
jeopardy assessment may be made in respect of a deficiency greater or
less than that of which notice is mailed to the taxpayer and whether or
not the taxpayer has theretofore filed a petition with the director of
finance. The director of finance may, at any time before rendering his
decision, abate such assessment, or any unpaid portion thereof, to the
extent that he believes the assessment to be excessive in amount. The
director of finance may in his decision redetermine the entire amount of
the deficiency and of all amounts assessed at the same time in
connection therewith.
4. Amounts assessable after decision of director of finance.--If the
jeopardy assessment is made after the decision of the director of
finance is rendered, such assessment may be made only in respect of the
deficiency determined by the director of finance in his decision.
5. Expiration of right to assess.--A jeopardy assessment may not be
made after the decision of the director of finance has become final or
after the taxpayer has made an application for review of the decision of
the director of finance.
6. Collection of unpaid amounts.--When a petition has been filed with
the director of finance and when the amount which should have been
assessed has been determined by a decision of the director of finance
which has become final, then any unpaid portion, the collection of which
has been stayed by bond, shall be collected as part of the tax upon
notice and demand from the director of finance, and any remaining
portion of the assessment shall be abated. If the amount already
collected exceeds the amount determined as the amount which should have
been assessed, such excess shall be credited or refunded to the taxpayer
as provided in section seventy-seven without the filing of claim
therefor. If the amount determined as the amount which should have been
assessed is greater than the amount actually assessed, then the
difference shall be assessed and shall be collected as part of the tax
upon notice and demand from the director of finance.
7. Abatement if jeopardy does not exist.--The director of finance may
abate the jeopardy assessment if he finds that jeopardy does not exist.
Such abatement may not be made after a decision of the director of
finance in respect of the deficiency has been rendered or, if no
petition is filed with the director of finance, after the expiration of
the period for filing such petition. The period of limitation on the
making of assessments and levy or a proceeding for collection, in
respect of any deficiency, shall be determined as if the jeopardy
assessment so abated had not been made, except that the running of such
period shall in any event be suspended for the period from the date of
such jeopardy assessment until the expiration of the tenth day after the
day on which such jeopardy assessment is abated.
8. Bond to stay collection.--The collection of the whole or any amount
of any jeopardy assessment may be stayed by filing with the director of
finance, within such time as may be fixed by regulation, a bond in an
amount equal to the amount as to which the stay is desired, conditioned
upon the payment of the amount (together with interest thereon) the
collection of which is stayed at the time at which, but for the making
of the jeopardy assessment, such amount would be due. Upon the filing of
the bond the collection of so much of the amount assessed as is covered
by the bond shall be stayed. The taxpayer shall have the right to waive
such stay at any time in respect of the whole or any part of the amount
covered by the bond, and if as a result of such waiver any part of the
amount covered by the bond is paid, then the bond shall at the request
of the taxpayer, be proportionately reduced. If any portion of the
jeopardy assessment is abated, or if a notice of deficiency under
section seventy-two is mailed to the taxpayer in a lesser amount, the
bond shall, at the request of the taxpayer, be proportionately reduced.
9. Petition to director of finance.--If the bond is given before the
taxpayer has filed its petition under section eighty, the bond shall
contain a further condition that if a petition is not filed within the
period provided in such section, then the amount, the collection of
which is stayed by the bond, will be paid on notice and demand at any
time after the expiration of such period, together with interest thereon
from the date of the jeopardy notice and demand to the date of notice
and demand under this subdivision. The bond shall be conditioned upon
the payment of so much of such assessment (collection of which is stayed
by the bond) as is not abated by a decision of the director of finance
which has become final. If the director of finance determines that the
amount assessed is greater than the amount which should have been
assessed, then the bond shall, at the request of the taxpayer, be
proportionately reduced when the decision of the director of finance is
rendered.
10. Stay of sale of seized property pending director's
decision.--Where a jeopardy assessment is made, the property seized for
the collection of the tax shall not be sold--
(a) if subdivision two is applicable, prior to the issuance of the
notice of deficiency and the expiration of the time provided in section
eighty for filing a petition with the director of finance, and
(b) if a petition is filed with the director of finance (whether
before or after the making of such jeopardy assessment), prior to the
expiration of the period during which the assessment of the deficiency
would be prohibited if subdivision one were not applicable.
Such property may be sold if the taxpayer consents to the sale, or if
the director of finance determines that the expenses of conservation and
maintenance will greatly reduce the net proceeds, or if the property is
perishable.
11. Interest.--For the purpose of subdivision one of section
seventy-five, the last date prescribed for payment shall be determined
without regard to any notice and demand for payment issued under this
section prior to the last date otherwise prescribed for such payment.
12. Early termination of taxable year.--If the director of finance
finds that a taxpayer designs quickly to remove its property from this
state, or to conceal its property therein, or to do any other act
tending to prejudice or to render wholly or partly ineffectual
proceedings to collect the tax for the current or the preceding taxable
year unless such proceedings be brought without delay, the director of
finance shall declare the taxable period for such taxpayer immediately
terminated, and shall cause notice of such finding and declaration to be
given the taxpayer, together with a demand for immediate payment of the
tax for the taxable period so declared terminated and of the tax for the
preceding taxable year or so much of such tax as is unpaid, whether or
not the time otherwise allowed by law for filing return and paying the
tax has expired; and such taxes shall thereupon become immediately due
and payable. If any proceeding brought to enforce payment of taxes made
due and payable by virtue of the provisions of this subdivision, the
finding of the director of finance made as herein provided, whether made
after notice to the taxpayer or not, shall be for all purposes
presumptive evidence of jeopardy.
13. Reopening of taxable period.-- Notwithstanding the termination of
the taxable period of the taxpayer by the director of finance, as
provided in subdivision twelve, the director of finance may reopen such
taxable period each time the taxpayer is found by the director of
finance to have received income, within the current taxable year, since
the termination of such period. A taxable period so terminated by the
director of finance may be reopened by the taxpayer if it files with the
director of finance a true and accurate return under any of the named
parts for such taxable period, together with such other information as
the director of finance may by regulations prescribe.
14. Furnishing of bond where taxable year is closed by the director of
finance.--Payment of taxes shall not be enforced by any proceedings
under the provisions of subdivision twelve prior to the expiration of
the time otherwise allowed for paying such taxes if the taxpayer
furnishes, under regulations prescribed by the director of finance, a
bond to insure the timely making of returns with respect to, and payment
of, such taxes or any taxes for prior years.
§ 86. Criminal penalties. 1. Attempt to evade tax.--Any corporation
or person who, with intent to evade any tax or any requirement of this
part or of any of the named parts, or any lawful requirement of the
director of finance thereunder, shall fail to pay the tax, or to make,
render, sign or certify any return or declaration of estimated tax, or
to supply any information within the time required by or under the
provisions of this part or of any of the named parts, or who with like
intent, shall make, render, sign or certify any false or fraudulent
return, declaration or statement, or shall supply any false or
fraudulent information, shall be guilty of a misdemeanor and shall, upon
conviction, be fined not to exceed five thousand dollars or be
imprisoned not to exceed one year, or both, at the discretion of the
court. The term "person" as used in this section includes an officer,
employee or agent of a corporation who as such officer, employee or
agent is under a duty to perform the act in respect of which the
violation occurs.
2. Limitation.--Notwithstanding the provisions of section one hundred
forty-two of the code of criminal procedure or of any other law, a
prosecution for any offense under this section may be commenced at any
time not later than three years after the commission of such offense,
provided that, if such offense is the failure to do an act required by
or under the provision of this part to be done before a certain date, a
prosecution for such offense may be commenced not later than three years
after such date.
3. Two or more charges.--In the prosecution of offenses under this
section, if there are two or more charges against any person or
corporation, involving a violation or violations of any provision or
provisions of this part or of any of the named parts, whether for the
same or different taxable years, instead of returning several
indictments or filing several informations, all of such charges may be
joined in one indictment or information, in separate counts, and if two
or more indictments are found, or two or more informations are filed,
the court may order them to be consolidated. If a person or corporation
shall be convicted of two or more offenses constituting different crimes
set forth in different counts of one indictment or information, or in
separate indictments or informations consolidated as hereinbefore
provided, the court may impose a separate sentence for each offense, and
if imprisonment is imposed, the court may order any of such sentences to
be served concurrently or consecutively.
4. Miscellaneous rules.-- Any prosecution under this section may be
conducted in any county where the person or corporation to whose tax
liability the proceeding relates resides, or has a place of business, or
from which such person or corporation received any income, or in any
county in which any such crime is committed. The corporation counsel of
the city imposing the tax shall have concurrent jurisdiction with any
district attorney in the prosecution of any offenses under this section.
If the provisions of this section conflict with those contained in any
other law, this section shall control. The certificate of the director
of finance to the effect that a tax has not been paid, that a return or
declaration of estimated tax has not been filed, or that information has
not been supplied, as required by or under the provisions of this part
or of any of the named parts, shall be prima facie evidence that such
tax has not been paid, that such return or declaration has not been
filed, or that such information has not been supplied. All fines levied
under this section shall be paid to the director of finance and
deposited in the same manner as revenues collected or received under any
of the named parts.
§ 87. General powers of director of finance. 1. General.--The director
of finance shall administer and enforce the tax imposed by the named
parts and he is authorized to make such rules and regulations, and to
require such facts and information to be reported, as he may deem
necessary to enforce the provisions of this part and of the named parts;
and he may delegate his powers and functions under all parts of this
title to one of his deputies or to any employee or employees of his
department.
2. Examination of books and witnesses.--The director of finance for
the purpose of ascertaining the correctness of any return, or for the
purpose of making an estimate of tax liability of any corporation, shall
have power to examine or to cause to have examined, by any agent or
representative designated by it for that purpose, any books, papers,
records or memoranda bearing upon the matters required to be included in
the return, and may require the attendance of the corporation rendering
the return through any officer or employee of such corporation, or the
attendance of any other person having knowledge in the premises, and may
take testimony and require proof material for his information, with
power to administer oaths to such person or persons.
3. Abatement authority.--The director of finance, of his own motion,
may abate any small unpaid balance of an assessment of tax, or any
liability in respect thereof, if the director of finance determines
under uniform rules prescribed by him that the administration and
collection costs involved would not warrant collection of the amount
due. He may also abate, of his own motion, the unpaid portion of the
assessment of any tax or any liability in respect thereof, which is
excessive in amount, or is assessed after the expiration of the period
of limitation properly applicable thereto, or is erroneously or
illegally assessed. No claim for abatement under this subdivision shall
be filed by a taxpayer.
4. Special refund authority.--Where no questions of fact or law are
involved and it appears from the records of the director of finance that
any moneys have been erroneously or illegally collected from any
taxpayer or other person, or paid by such taxpayer or other person under
a mistake of facts, pursuant to the provisions of this part or of any of
the named parts, the director of finance at any time, without regard to
any period of limitations, shall have the power, upon making a record of
his reasons therefor in writing, to cause such moneys so paid and being
erroneously and illegally held to be refunded.
5. Authority to set interest rates.--The commissioner of finance, by
regulation, may set the rate of interest to be paid pursuant to sections
six and eight of part two, sections seventy-five, seventy-six and
seventy-nine of this part, and those sections of any local law imposing
a tax such as is imposed by article thirty-two of the tax law which
correspond to sections fourteen hundred sixty-one and fourteen hundred
sixty-three of the tax law. Such rate shall be the same for each such
section and shall be not less than six percent per annum nor more than
the rate of interest prescribed by the banking board pursuant to section
fourteen-a of the banking law, but if the commissioner of finance has
not set such rate, interest at six percent per annum shall apply, except
that for purposes of subdivision five of section eight of part two
interest at the rate of four percent per annum shall apply. Any rate set
by the commissioner of finance shall go into effect not less than sixty
days after the regulation is promulgated, and shall apply only to taxes
due or paid for a calendar or fiscal year or other period commencing
after the effective date of such regulation.
6. Interest required to be paid.--In computing the amount of any
interest required to be paid under this part or any of the named parts
by the commissioner of finance or by the taxpayer, or any other amount
determined by reference to such amount of interest, such interest and
such amount shall be compounded daily. The preceding sentence shall not
apply for purposes of computing the amount of any addition to tax for
failure to pay estimated tax under subdivision three of section
seventy-six of this part.
7. Fractional parts of a dollar.--The commissioner of finance may
provide by regulation (a) that in any determination, assessment,
collection, refund or credit under the named parts, a fractional part of
a dollar may be disregarded unless it amounts to fifty cents or more, in
which case it shall be increased to one dollar, and (b) that any person
making a return, report or other statement required to be filed under
the named parts, may elect with respect to any amount required to be
shown thereon, if such amount is other than a whole dollar amount,
either to disregard the fractional part of a dollar or to disregard the
fractional part of a dollar unless it amounts to fifty cents or more, in
which case the amount (determined without regard to the fractional part
of the dollar) shall be increased by one dollar; provided, however, that
such election shall not be applicable to items which must be taken into
account in making the computations necessary to determine the amount
required to be shown on any such return, report or other statement but
shall be applicable only to the final amount required to be shown
thereon.
§ 88. Secrecy required of official; penalty for violation. 1. Except
in accordance with proper judicial order or as otherwise provided by
law, it shall be unlawful for the director of finance, the department of
finance of the city, any officer or employee of the department of
finance of the city, or any person who, pursuant to this section, is
permitted to inspect any report or return, or to whom any information
contained in any report or return, is furnished, to divulge or make
known in any manner the amount of income or any particulars set forth or
disclosed in any report or return, under this title. The officers
charged with the custody of such reports and returns shall not be
required to produce any of them or evidence of anything contained in
them in any action or proceeding in any court, except on behalf of the
city in an action or proceeding involving the collection of a tax due
under this title to which the city, is a party or a claimant, or on
behalf of any party to any action or proceeding under the provisions of
this title when the reports, returns or facts shown thereby are directly
involved in such action or proceeding, in any of which events the court
may require the production of, and may admit in evidence, so much of
said reports or returns or of the facts shown thereby as are pertinent
to the action or proceeding, and no more. The director of finance may,
nevertheless, publish a copy or a summary of any determination or
decision rendered after the formal hearing provided for in section
eighty of this part. Nothing herein shall be construed to prohibit the
delivery to a taxpayer or its duly authorized representative of a copy
of any report filed by it, nor to prohibit the publication of statistics
so classified as to prevent the identification of particular reports or
returns and the items thereof, or the inspection by the corporation
counsel or other legal representatives of the city of the report or
return of any taxpayer which shall bring action to set aside or review
the tax based thereon, or against which an action or proceeding under
this title or under any local law of the city imposed as authorized by
the act authorizing the adoption of this title has been recommended by
the director of finance or the corporation counsel or has been
instituted, or the inspection of the reports or returns of any taxpayer
by the duly designated officers or employees of the city for purposes of
an audit under this title or an audit authorized by the act authorizing
the adoption of this title; and nothing in this part shall be construed
to prohibit the publication of the percentage of capital stock, gross
premiums or net income of any corporation which may be required to be
allocated within the city for purposes of the tax imposed by any of the
named parts.
2. Any offense against subdivision one of this section shall be
punished by a fine not exceeding one thousand dollars or by imprisonment
not exceeding one year, or both, at the discretion of the court, and if
the offender be an officer or employee of the state or city, he shall be
dismissed from office and be incapable of holding any public office in
the city or this state for a period of five years thereafter.
3. Notwithstanding any provisions of this section, the director of
finance may permit the secretary of the treasury of the United States or
his delegates, or the proper officer of this or any other state charged
with tax administration, or the authorized representative of either such
officer, to inspect the returns or reports filed under any of the named
parts, or may furnish to such officer or his authorized representative
an abstract of any such return or report or supply information
concerning an item contained in any such return or report, or supply him
with information concerning an item contained in any such return or
report, or disclosed by an investigation of tax liability under any of
the named parts, but such permission shall be granted or such
information furnished to such officer or his representative only if the
laws of the United States or of such state, as the case may be, grant
substantially similar privileges to the director of finance and such
information is to be used for tax purposes only; and provided further
the director of finance may furnish to the secretary of the treasury of
the United States or his delegates or to the tax commission of the state
of New York or its delegates such returns or reports filed under any of
the named parts and other tax information, as he may consider proper,
for use in court actions or proceedings under the internal revenue code
or the tax law of the state of New York, whether civil or criminal,
where a written request therefor has been made to the director of
finance by the secretary of the treasury or by such tax commission or by
their delegates, provided the laws of the United States or the laws of
the state of New York grant substantially similar powers to the
secretary of the treasury or his delegates or to such tax commission or
its delegates. Where the director of finance has so authorized use of
returns, reports or other information in such actions or proceedings,
officers and employees of the department of finance may testify in such
actions or proceedings in respect to such returns, reports or other
information.
§ 89. Disposition of revenues. All revenues resulting from the
imposition of the taxes under this title shall be paid into the treasury
of the city and shall be credited to and deposited in the general fund
of the city, but no part of such revenues may be expended unless
appropriated in the annual budget of the city.
§ 90. Inconsistencies with other laws. If any provision of this title
is inconsistent with, in conflict with, or contrary to any other
provision of law, such provision of this title shall prevail over such
other provision and such other provision shall be deemed to have been
amended, superseded or repealed to the extent of such inconsistency,
conflict or contrariety.
§ 91. Effect of invalidity in part. If any clause, sentence,
paragraph, subsection, section or other part of this title or the
application thereof to any person or circumstances, shall be held to be
invalid, such holding shall not affect, impair or invalidate the
remainder of this title or the application of such part held invalid, to
any other person or circumstances, but shall be confined in its
operation to the clause, sentence, paragraph, subsection, section or
other part thereof directly involved in such holding, or to the person
and circumstances therein involved.
§ 2. Notwithstanding any provision of law to the contrary, any city
having a population of one million or more, acting through its local
legislative body, is hereby authorized and empowered to adopt and amend
local laws imposing for any such city a tax on unincorporated
businesses. The terms of such local law shall be, substantially, as
follows except that any such local law may be amended for the purpose of
conforming it with similar provisions of article twenty-three of the tax
law as presently in effect or as it may be amended and except that the
appendix in any such local law may be amended for the purpose of
conforming it with the United States internal revenue code or other
federal laws relating to taxation as presently in effect or as they may
be amended;
CITY UNINCORPORATED BUSINESS INCOME TAX
Section 101. Imposition of tax.
101-a. Taxable years to which tax applies; tax for taxable years
beginning prior to and ending after January first,
nineteen hundred sixty-six.
102. Meaning of terms.
103. Unincorporated business defined.
104. Unincorporated business taxable income.
105. Unincorporated business gross income.
106. Unincorporated business deductions.
107. Allocation to the city.
108. Deductions not subject to allocation.
109. Unincorporated business exemptions.
115. Declarations of estimated tax.
116. Payments of estimated tax.
121. Accounting periods and methods.
122. Returns, payment of tax.
123. Time and place for filing returns and paying tax.
124. Signing of returns and other documents.
125. Extensions of time.
126. Requirements concerning returns, notices, records and
statements.
127. Report of change in federal taxable income.
127-A. Reporting of changes or corrections in sales and
compensating use tax liability.
128. Change of election.
129. Notice of deficiency.
130. Assessment.
131. Limitations on assessment.
132. Interest on underpayment.
133. Additions to tax and civil penalties.
134. Overpayment.
135. Limitations on credit or refund.
136. Interest on overpayment.
137. Petition to director of finance.
138. Review of director's decision.
139. Mailing rules; holidays.
140. Collection, levy and liens.
141. Transferees.
142. Jeopardy assessment.
143. Criminal penalties.
144. Armed forces relief provisions.
145. General powers of director of finance.
146. Secrecy requirement and penalties for violation.
147. Effect of invalidity in part.
148. Inconsistencies with other laws.
149. Deposit and disposition of revenues by director of
finance*.
* Does not conform to section heading in text of law.
§ 101. Imposition of tax. (a) General.--A tax at the rate of four
percent is hereby imposed for each taxable year, beginning with taxable
years ending after January first, nineteen hundred sixty-six, on the
unincorporated business taxable income of every unincorporated business
wholly or partly carried on within the city. This tax shall be in
addition to any other taxes imposed.
(b) Credit against tax.--If the tax computed under subdivision (a) is
six hundred dollars or less, a credit shall be allowed for the entire
amount of such tax. If the tax computed under subdivision (a) exceeds
six hundred dollars but is less than eight hundred dollars, a credit
shall be allowed in the amount determined by multiplying such tax by a
fraction the numerator of which is eight hundred dollars minus the
amount of such tax and the denominator of which is two hundred dollars.
If the tax computed under subdivision (a) is eight hundred dollars or
more, no credit shall be allowed. If separate partnerships, joint
ventures or other unincorporated entities have substantially the same
partners or members, each of such partners or members has substantially
the same interest in each of such partnerships, joint ventures or other
unincorporated entities, and such partnerships, joint ventures or other
unincorporated entities are engaged in substantially the same business
or businesses or in substantially related businesses, all of such
partnerships, joint ventures or other unincorporated entities shall be
treated as one unincorporated business for purposes of this subdivision.
The preceding sentence shall not be construed to limit or affect the
meaning or application of any other provision of this title.
(c) Credit relating to stock transfer tax.
(1) In addition to any other credit permitted under this section, a
taxpayer shall be allowed a credit, to be credited or refunded in the
manner hereinafter provided in this subdivision, against the tax imposed
by this title after the allowance of any other credit under this
section. The amount of such credit shall be fifty percent of the tax
incurred in market making transactions under the provisions of article
twelve of the tax law on such transactions subject to such tax occurring
on and after August first, nineteen hundred seventy-six and paid by such
taxpayer (except when such tax shall have been paid pursuant to section
two hundred seventy-nine-a of such tax law).
2. For purposes of this subdivision:
(a) the term "taxpayer" shall mean any unincorporated business subject
to tax under this section registered with the United States securities
and exchange commission in accordance with subsection (b) of section
fifteen of the securities exchange act of nineteen hundred thirty-four,
as amended, and acting as a dealer in a transaction described in
subparagraph (b) of this paragraph, and
(b) the term "market making transaction" shall mean any transaction
involving a sale (including a short sale) by a dealer of shares or
certificates subject to the tax imposed by article twelve of the tax
law, provided such shares or certificates are sold:
(i) as stock in trade or inventory or as property held for sale in the
ordinary course of such dealer's trade or business (including transfers
which are part of an underwriting),
(ii) in (a) a bona fide arbitrage transaction; (b) a bona fide hedge
transaction involving a long or short position in any equity security
and a long or short position in a security entitling the holder to
acquire or sell such equity security; or (c) a risk arbitrage
transaction in connection with a merger, acquisition, tender offer,
recapitalization, reorganization, or similar transaction, or
(iii) to offset a transaction made in error.
Provided, however, that, except as to clause (ii) (c) of this
paragraph, the term "market making transaction" shall not include any
sale of shares or certificates identified in such dealer's records as a
security held for investment within the meaning of section twelve
hundred thirty-six of the internal revenue code.
(3) The credit allowed under this subdivision for any taxable year
shall be deemed to be an overpayment of tax by the taxpayer to be
credited or refunded in accordance with the provisions of section one
hundred thirty-four of this chapter, except as otherwise provided in
subdivision (g) of section one hundred sixteen of this chapter and
subdivision (g) of section one hundred twenty-two of this chapter;
provided, however, that the provisions of this title notwithstanding,
the amount to be refunded pursuant to this subdivision shall not be paid
prior to the first day of the eighth month following the close of the
taxable year, and the provisions of subdivision (c) of section one
hundred thirty-six of this chapter notwithstanding, interest shall be
allowed and paid on the overpayment of the credit under this subdivision
from the first day of the eleventh month following the close of the
taxable year, or three months after a claim for the credit or refund
provided for in this subdivision has been filed, whichever is later.
(4) Provided, however, that the credit provided under this subdivision
shall be allowed only to the extent that the amount of credit allowable
with respect to market making transactions under the provisions of this
subdivision (determined without regard to the provisions of this
paragraph) exceeds fifty percent of all rebates (provided under the
provisions of section two hundred eighty-a of article twelve of the tax
law) allowed for such taxes incurred in the same market making
transactions with respect to which the credit is determined. No credit
shall be allowed under this subdivision with respect to any tax incurred
in market making transactions occurring on or after October first,
nineteen hundred eighty-one.
(d) Credit relating to certain sales and compensating use taxes. (1)
In addition to the credits allowed by subdivisions (b) and (c) of this
section, a taxpayer shall be allowed a credit against the tax imposed by
this title to be credited or refunded in the manner hereinafter provided
in this section. The amount of such credit shall be the excess of (A)
the amount of sales and compensating use taxes imposed by section eleven
hundred seven of the tax law during the taxpayer's taxable year which
became legally due on or after and was paid on or after July first,
nineteen hundred seventy-seven, less any credit or refund of such taxes,
with respect to the purchase or use by the taxpayer of machinery or
equipment for use or consumption directly and predominantly in the
production of tangible personal property, gas, electricity,
refrigeration or steam for sale, by manufacturing, processing,
generating, assembling, refining, mining or extracting, or telephone
central office equipment or station apparatus or comparable telegraph
equipment for use directly and predominantly in receiving at destination
or initiating and switching telephone or telegraph communication, but
not including parts with a useful life of one year or less or tools or
supplies used in connection with such machinery, equipment or apparatus
over (B) the amount of any credit for such sales and compensating use
taxes allowed or allowable against the taxes imposed by any local law of
the city imposing a tax on utilities and vendors of utility services,
for any periods embraced within the taxable year of the taxpayer under
this part. (2) The credit allowed under this section for any taxable
year shall be deemed to be an overpayment of tax by the taxpayer to be
credited or refunded, without interest, in accordance with the
provisions of section one hundred thirty-four of this title. (3) Where
the taxpayer receives a refund or credit of any tax imposed under
section eleven hundred seven of the tax law for which the taxpayer had
claimed a credit under the provisions of this section in a prior taxable
year, the amount of such tax refund or credit shall be added to the tax
imposed by section one hundred one, and such amount shall be subtracted
in computing unincorporated business taxable income for the taxable
year.
(e) Credit relating to certain expenses involved in the cost of
relocating industrial and commercial employment opportunities. (1) In
addition to any other credit allowed by this section, a taxpayer shall
be allowed a credit against the tax imposed by this part to be credited
or refunded in the manner hereinafter provided in this section. The
amount of such credit shall be:
(A) A maximum of three hundred dollars for each commercial employment
opportunity and a maximum of five hundred dollars for each industrial
employment opportunity relocated to the city from an area outside the
state. Such credit shall be allowed to a taxpayer who relocates a
minimum of ten employment opportunities. The credit shall be allowed
against employment opportunity relocation costs incurred by the
taxpayer. The credit allowed hereunder may be taken by the taxpayer in
whole or in part in the year in which the employment opportunity is
relocated by such taxpayer or either of the two years succeeding such
event.
The director of finance is empowered to promulgate rules and
regulations and to prescribe the form of application to be used by a
taxpayer seeking the credit provided hereunder.
(B) Definitions: When used in this section, "Employment Opportunity"
means the creation of a full time position of gainful employment for an
industrial or commercial employee and the actual hiring of such employee
for the said position.
"Industrial Employee" means one engaged in the manufacture or
assembling of tangible goods or the processing of raw materials.
"Commercial Employee" means one engaged in the buying, selling or
otherwise providing of goods or services other than on a retail basis.
"Retail" means the selling or otherwise disposing of or furnishing of
tangible goods or services directly to the ultimate user or consumer.
"Full Time Position" means the hiring of an industrial or commercial
employee in a position of gainful employment where the number of hours
worked by such employee is not less than thirty hours during any given
work week.
"Employment Opportunity Relocation Costs" means the costs incurred by
the taxpayer in moving furniture, files, papers and office equipment
into the city from a location outside the state; the costs incurred by
the taxpayer in the moving from a location outside the state; the costs
of installation of telephones and other communications equipment
required as a result of the relocation to the city from a location
outside the state; the cost incurred in the purchase of office furniture
and fixtures required as a result of the relocation to the city from a
location outside the state; and the cost of renovation of the premises
to be occupied as a result of the relocation provided, however, that
such renovation costs shall be allowable only in an amount which does
not exceed seventy-five cents per square foot of the total area utilized
by the taxpayer in the occupied premises.
(2) The credit allowed under this section for any taxable year shall
be deemed to be an overpayment of tax by the taxpayer to be credited or
refunded, without interest, in accordance with the provisions of section
one hundred thirty-four of this title.
(3) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law for which the taxpayer
had claimed a credit under the provisions of this section in a prior
taxable year, the amount of such tax refund or credit shall be added to
the tax imposed by section one hundred one, and such amount shall be
subtracted in computing unincorporated business taxable income for the
taxable year.
(f) Credit relating to the annual increase in certain payments to a
landlord by a taxpayer relocating industrial and commercial employment
opportunities. (1) In addition to any other credit allowed by this
section, a taxpayer shall be allowed a credit against the tax imposed by
this part to be credited or refunded, without interest, in the manner
hereinafter provided in this section.
(A) Where a taxpayer shall have relocated to the city from a location
outside the state, and by such relocation shall have created a minimum
of one hundred industrial or commercial employment opportunities; and
where such taxpayer shall have entered into a written lease for the
relocation premises, the terms of which lease provide for increased
additional payments to the landlord which are based solely and directly
upon any increase or addition in real estate taxes imposed on the leased
premises, the taxpayer upon approval and certification by the industrial
and commercial incentive board as hereinafter provided, shall be
entitled to a credit against the tax imposed by this section. The amount
of such credit shall be: An amount equal to the annual increased
payments actually made by the taxpayer to the landlord which are solely
and directly attributable to an increase or addition to the real estate
tax imposed upon the leased premises. Such credit shall be allowed only
to the extent that the taxpayer has not otherwise claimed said amount as
a deduction against the tax imposed by this section, has met the
requirements of this section, and further, that the granting of the tax
credit to the applicant is in the "public interest." In determining that
the granting of the tax credit is in the public interest, the board
shall make affirmative findings that: the granting of the tax credit to
the applicant will not effect an undue hardship on similar taxpayers
already located within the city; the existence of this tax incentive has
been instrumental in bringing about the relocation of the applicant to
the city; and the granting of the tax credit will foster the economic
recovery and economic development of the city. The tax credit, if
approved and certified by the industrial and commercial incentive board,
shall be utilized annually on the filing of its tax return by the
taxpayer for the length of the term of the lease or for a period not to
exceed ten years from the date of relocation, whichever period is
shorter.
(B) Definitions. When used in this section, "employment opportunity"
means the creation of a full time position of gainful employment for an
industrial or commercial employee and the actual hiring of such employee
for the said position.
"Industrial employee" means one engaged in the manufacture or
assembling of tangible goods or the processing of raw materials.
"Commercial employee" means one engaged in the buying, selling or
otherwise providing of goods or services other than on a retail basis.
"Retail" means the selling or otherwise disposing or furnishing of
tangible goods or services directly to the ultimate user or consumer.
"Full time position" means the hiring of an industrial or commercial
employee in a position of gainful employment where the number of hours
worked by such employee is not less than thirty hours during any given
work week.
"Industrial and commercial incentive board" means the board created
pursuant to section four hundred eighty-nine-nn of the real property tax
law.
(2) The credit allowed under this section for any taxable year shall
be deemed to be an overpayment of tax by the taxpayer to be credited or
refunded, without interest, in accordance with the provisions of section
one hundred thirty-four of this title.
(3) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law for which the taxpayer
had claimed a credit under the provisions of this section in a prior
taxable year, the amount of such tax refund or credit shall be added to
the tax imposed by section one hundred one of this title, and such
amount shall be subtracted in computing unincorporated business taxable
income for the taxable year.
(g) Credit relating to certain sales and compensating use taxes. (1)
In addition to any other credit allowed by this section, a taxpayer
shall be allowed a credit against the tax imposed by this title to be
credited or refunded in the manner hereinafter provided in this section.
The amount of such credit shall be equal to one-half the amount of sales
and compensating use taxes imposed by section eleven hundred seven of
the tax law during the taxpayer's taxable year which became legally due
on or after and was paid on or after July first, nineteen hundred
eighty-one, less one-half of any credit or refund of such taxes, with
respect to the purchase or use by the taxpayer of (i) parts with a
useful life of one year or less, tools and supplies for use or
consumption directly and predominantly in the production of tangible
personal property, gas, electricity, refrigeration or steam for sale by
manufacturing, processing, generating, assembling, refining, mining or
extracting or for use directly and predominantly in or on telephone
central office equipment or station apparatus or comparable telegraph
equipment where such equipment or apparatus is used directly and
predominantly in receiving at destination or initiating and switching
telephone or telegraph communication, and (ii) the services of
installing, repairing, maintaining or servicing the tangible personal
property described in subdivision (d) of this section, including the
parts with a useful life of one year or less, tools and supplies
described in clause (i) of this paragraph. The foregoing credit shall be
reduced by the amount of any credit for such sales and compensating use
taxes allowed or allowable against the taxes imposed by any local law of
the city imposing a tax on utilities and vendors of utility services,
for any periods embraced within the taxable year of the taxpayer under
this title.
(2) The credit allowed under this subdivision for any taxable year
shall be deemed to be an overpayment of tax by the taxpayer to be
credited or refunded in accordance with the provisions of section one
hundred thirty-four of this title.
(3) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law for which the taxpayer
had claimed a credit under this subdivision in a prior taxable year, the
amount of such tax refund or credit shall be added to the tax imposed by
section one hundred one, and such amount shall be subtracted in
computing unincorporated business taxable income for the taxable year.
(h) Credit relating to certain sales and compensating use taxes on
electricity used in manufacturing, processing or assembling.
(1) (a) In addition to any other credit allowed by this section, a
taxpayer shall be allowed a credit against the tax imposed by this title
to be credited or refunded in the manner hereinafter provided in this
subdivision. The amount of such credit shall be equal to the amount of
sales and compensating use taxes imposed by section eleven hundred seven
of the tax law during the taxpayer's taxable year which became legally
due on or after and was paid on or after July first, nineteen hundred
eighty-four, less any credit or refund of such taxes, with respect to
the purchase or use by the taxpayer of electricity or electric service
of whatever nature for use or consumption directly and exclusively in
the production of tangible personal property for sale by manufacturing,
processing or assembling. Provided, however, the amount of the credit
allowed by this paragraph shall be reduced by the amount of any rebate
or rebates received during the taxpayer's taxable year pursuant to a
local law enacted in accordance with article two-G of the general city
law.
(b) In addition to any other credit allowed by this section, a
taxpayer shall be allowed a credit against the tax imposed by this title
to be credited or refunded in the manner hereinafter provided in this
subdivision. The amount of such credit shall be equal to the percentage
specified below of the amount of sales and compensating use taxes
imposed by section eleven hundred seven of the tax law during the
taxpayer's taxable year which became legally due on or after and was
paid on or after July first, nineteen hundred eighty-eight, less any
credit or refund of such taxes, with respect to the purchase or use by a
nonresidential energy user, as such term is defined in article two-G of
the general city law, of electricity or electric service purchased at
retail from the power authority of the state of New York or the port
authority of the state of New York and New Jersey, provided, however,
that no credit shall be allowed with respect to purchases from such port
authority unless it shall be an "eligible vendor of energy services", as
defined in paragraph one of subdivision (c) of section twenty-five-v of
the general city law, and shall have obtained a certification of
eligibility in accordance with subdivision (b) of section twenty-five-w
of such law; during the period commencing July first, nineteen hundred
eighty-eight and ending June thirtieth, nineteen hundred eighty-nine the
credit shall be in an amount equal to twenty-five per centum of such
sales and compensating use taxes imposed; during the period commencing
July first, nineteen hundred eighty-nine and ending June thirtieth,
nineteen hundred ninety the credit shall be in an amount equal to fifty
per centum of such taxes imposed; during the period commencing July
first, nineteen hundred ninety and ending June thirtieth, nineteen
hundred ninety-one the credit shall be in an amount equal to
seventy-five per centum of such taxes imposed; and during the period
commencing July first, nineteen hundred ninety-one and thereafter the
credit shall be in an amount equal to one hundred per centum of such
taxes imposed.
(c) In addition to any other credit allowed by this section, a
taxpayer shall be allowed a credit against the tax imposed by this title
to be credited or refunded in the manner hereinafter provided in this
subdivision. The amount of such credit shall be equal to the percentage
specified below of the amount of sales and compensating use taxes
imposed by section eleven hundred seven of the tax law during the
taxpayer's taxable year which became legally due on or after and was
paid on or after July first, nineteen hundred eighty-eight, less any
credit or refund of such taxes, with respect to the purchase or use by a
non-residential fuel user of fuel or fuel service except fuel used to
operate motor vehicles: during the period commencing July first,
nineteen hundred eighty-eight and ending June thirtieth, nineteen
hundred eighty-nine the credit shall be in an amount equal to
twenty-five per centum of such sales and compensating use taxes imposed;
during the period commencing July first, nineteen hundred eighty-nine
and ending June thirtieth, nineteen hundred ninety the credit shall be
in an amount equal to fifty per centum of such taxes; during the period
commencing July first, nineteen hundred ninety and ending June
thirtieth, nineteen hundred ninety-one the credit shall be in an amount
equal to seventy-five per centum of such taxes; and during the period
commencing July first, nineteen hundred ninety-one and thereafter the
credit shall be in an amount equal to one hundred per centum of such
taxes imposed. For purposes of this subparagraph, the term
"non-residential fuel user" shall mean any non-residential user of fuel,
except a government agency or instrumentality thereof, public benefit
corporation, or any entity that is exempt from the sales tax imposed
pursuant to section eleven hundred seven of the tax law, provided that
the term "non-residential fuel user" shall not include an owner or
operator of residential income producing property, except a hotel.
(2) The credit allowed under this subdivision for any taxable year
shall be deemed to be an overpayment of tax by the taxpayer to be
credited or refunded, without interest, in accordance with the
provisions of section one hundred thirty-four of this title.
(3) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law for which the taxpayer
had claimed a credit under this subdivision in a prior taxable year, the
amount of such tax refund or credit shall be added to the tax imposed by
this section and such amount shall be subtracted in computing
unincorporated business taxable income for the taxable year.
(j) Relocation and employment assistance credit. (1) In addition to
any other credit allowed by this part, a taxpayer that has obtained the
certifications in accordance with subdivision (b) of section
twenty-five-z of the general city law shall be allowed a credit against
the tax imposed by this part. The amount of the credit shall be the
amount determined by multiplying five hundred dollars or, in the case of
a taxpayer that has obtained pursuant to subdivision (b) of such section
twenty-five-z a certification of eligibility dated on or after July
first, nineteen hundred ninety-five, one thousand dollars or, in the
case of an eligible business that has obtained pursuant to subdivision
(b) of such section twenty-five-z a certification of eligibility dated
on or after July first, two thousand, for a relocation to eligible
premises located within a revitalization area defined in subdivision (n)
of section twenty-five-y of the general city law, three thousand
dollars, by the number of eligible aggregate employment shares
maintained by the taxpayer during the taxable year with respect to
particular premises to which the taxpayer has relocated; provided,
however, with respect to a relocation for which no application for a
certificate of eligibility is submitted prior to July first, two
thousand three, to eligible premises that are not within a
revitalization area, if the date of such relocation as determined
pursuant to subdivision (j) of section twenty-five-y of the general city
law is before July first, nineteen hundred ninety-five, the amount to be
multiplied by the number of eligible aggregate employment shares shall
be five hundred dollars, and with respect to a relocation for which no
application for a certificate of eligibility is submitted prior to July
first, two thousand three, to eligible premises that are within a
revitalization area, if the date of such relocation as determined
pursuant to subdivision (j) of such section is before July first,
nineteen hundred ninety-five, the amount to be multiplied by the number
of eligible aggregate employment shares shall be five hundred dollars,
and if the date of such relocation as determined pursuant to subdivision
(j) of such section is on or after July first, nineteen hundred
ninety-five, and before July first, two thousand, one thousand dollars;
provided, however, that no credit shall be allowed for the relocation of
any retail activity or hotel services; provided, further, that no credit
shall be allowed under this paragraph to any taxpayer that has elected
pursuant to subdivision (d) of section twenty-five-z of the general city
law to take such credit against a gross receipts tax imposed under a
local law enacted pursuant to subdivision (a) of section twelve hundred
one of the tax law; and provided that in the case of an eligible
business that has obtained pursuant to subdivision (b) of such section
twenty-five-z certifications of eligibility for more than one
relocation, the portion of the total amount of eligible aggregate
employment shares to be multiplied by the dollar amount specified in
this subdivision for each such certification of a relocation shall be
the number of total attributed eligible aggregate employment shares
determined with respect to such relocation pursuant to subdivision (o)
of section twenty-five-y of the general city law. For purposes of this
section, the terms "eligible aggregate employment shares", "relocate",
"retail activity" and "hotel services" shall have the meanings ascribed
by section twenty-five-y of the general city law.
(2) The credit allowed under this subdivision with respect to eligible
aggregate employment shares maintained with respect to particular
premises to which the taxpayer has relocated shall be allowed for the
first taxable year during which such eligible aggregate employment
shares are maintained with respect to such premises and for any of the
twelve succeeding taxable years during which eligible aggregate
employment shares are maintained with respect to such premises; provided
that the credit allowed for the twelfth succeeding taxable year shall be
calculated by multiplying the number of eligible aggregate employment
shares maintained with respect to such premises in the twelfth
succeeding taxable year by the lesser of one and a fraction the
numerator of which is such number of days in the taxable year of
relocation less the number of days the eligible business maintained
employment shares in the eligible premises in the taxable year of
relocation and the denominator of which is the number of days in such
twelfth succeeding taxable year during which such eligible aggregate
employment shares are maintained with respect to such premises. Except
as provided in paragraph four of this subdivision, if the amount of the
credit allowable under this section for any taxable year exceeds the tax
imposed for such year, the excess may be carried over, in order, to the
five immediately succeeding taxable years and, to the extent not
previously deductible, may be deducted from the taxpayer's tax for such
years.
(3) The credit allowable under this section shall be deducted prior to
the deduction of any other credit allowed by this title.
(4) In the case of a taxpayer that has obtained a certification of
eligibility pursuant to subdivision (b) of section twenty-five-z of the
general city law dated on or after July first, two thousand for a
relocation to eligible premises located within the revitalization area
defined in subdivision (n) of section twenty-five-y of the general city
law, the credits allowed under this subdivision, or in the case of a
taxpayer that has relocated more than once, the portion of such credits
attributed to such certification of eligibility pursuant to paragraph
one of this subdivision, against the tax imposed by this chapter for the
taxable year of such relocation and for the four taxable years
immediately succeeding the taxable year of such relocation, shall be
deemed to be overpayments of tax by the taxpayer to be credited or
refunded, without interest, in accordance with the provisions of section
one hundred thirty-four of this title. For such taxable years, such
credits or portions thereof may not be carried over to any succeeding
taxable year; provided, however, that this paragraph shall not apply to
any relocation for which an application for a certification of
eligibility was not submitted prior to July first, two thousand three,
unless the date of such relocation is on or after July first, two
thousand.
(k) Lower Manhattan relocation and employment assistance credit. (1)
In addition to any other credit allowed by this part, a taxpayer that
has obtained the certifications in accordance with subdivision (b) of
section twenty-five-ee of the general city law shall be allowed a credit
against the tax imposed by this part. The amount of the credit shall be
the amount determined by multiplying three thousand dollars by the
number of eligible aggregate employment shares maintained by the
taxpayer during the taxable year with respect to eligible premises to
which the taxpayer has relocated; provided, however, that no credit
shall be allowed for the relocation of any retail activity or hotel
services; provided, further, that no credit shall be allowed under this
subdivision to any taxpayer that has elected pursuant to subdivision (d)
of section twenty-five-ee of the general city law to take such credit
against a gross receipts tax imposed under a local law enacted pursuant
to subdivision (a) of section twelve hundred one of the tax law. For
purposes of this subdivision, the terms "eligible aggregate employment
shares," "eligible premises," "relocate," "retail activity" and "hotel
services" shall have the meanings ascribed by section twenty-five-dd of
the general city law.
(2) The credit allowed under this subdivision with respect to eligible
aggregate employment shares maintained with respect to eligible premises
to which the taxpayer has relocated shall be allowed for the taxable
year of the relocation and for any of the twelve succeeding taxable
years during which eligible aggregate employment shares are maintained
with respect to eligible premises; provided that the credit allowed for
the twelfth succeeding taxable year shall be calculated by multiplying
the number of eligible aggregate employment shares maintained with
respect to eligible premises in the twelfth succeeding taxable year by
the lesser of one and a fraction the numerator of which is such number
of days in the taxable year of relocation less the number of days the
eligible business maintained employment shares in eligible premises in
the taxable year of relocation and the denominator of which is the
number of days in such twelfth succeeding taxable year during which such
eligible aggregate employment shares are maintained with respect to such
premises.
(3) Except as provided in paragraph four of this subdivision, if the
amount of the credit allowable under this subdivision for any taxable
year exceeds the tax imposed for such year, the excess may be carried
over, in order, to the five immediately succeeding taxable years and, to
the extent not previously deductible, may be deducted from the
taxpayer's tax for such years.
(4) The credits allowed under this subdivision, against the tax
imposed by this chapter for the taxable year of the relocation and for
the four taxable years immediately succeeding the taxable year of such
relocation, shall be deemed to be overpayments of tax by the taxpayer to
be credited or refunded, without interest, in accordance with the
provisions of section seventy-seven of this title. For such taxable
years, such credits or portions thereof may not be carried over to any
succeeding taxable year.
(5) The credit allowable under this subdivision shall be deducted
after the credits allowed by subdivisions (b) and (j) of this section,
but prior to the deduction of any other credit allowed by this section.
§ 101-a. Taxable years to which tax applies; tax for taxable years
beginning prior to and ending after January first, nineteen hundred
sixty-six. (a) General.--The tax imposed by section one hundred one,
with any modification permitted by subdivision (b) of this section, is
imposed for each taxable year beginning with taxable years ending on or
after January first, nineteen hundred sixty-six.
(b) Alternate methods for determining tax for taxable years ending on
or after January first, nineteen hundred sixty-six.--(1) The tax for any
taxable year ending on or after January first, nineteen hundred
sixty-six and before December thirty-first, nineteen hundred sixty-six,
shall be an amount equal to the tax which would have been imposed had
section one hundred one been in effect for the entire taxable year,
multiplied by the number of months (or major portions thereof) in such
taxable year which occur after December thirty-first, nineteen hundred
sixty-five and divided by the number of months (or major portions
thereof) in such taxable year.
(2) In lieu of the method of computation of tax prescribed in
paragraph one, if the taxpayer maintained adequate records for the
portion of any taxable year ending on or after January first, nineteen
hundred sixty-six, and before December thirty-first, nineteen hundred
sixty-six, which falls within the calendar year nineteen hundred
sixty-six, the tax for such taxable year at the election of the taxpayer
may be computed on the basis of the unincorporated business taxable
income which the taxpayer would have reported had he filed a federal
income tax return for a taxable year beginning January first, nineteen
hundred sixty-six and ending with the close of such taxable year ending
before December thirty-first, nineteen hundred sixty-six. Such taxable
year beginning January first, nineteen hundred sixty-six and ending
before December thirty-first, nineteen hundred sixty-six, shall be
deemed (unless clearly indicated otherwise) to be the taxable year of
the taxpayer. For purposes of this paragraph two, the unincorporated
business exemptions allowable under section one hundred nine, the credit
allowable under subdivision (b) of section one hundred one and any net
operating loss deduction as modified pursuant to subdivision two of
section one hundred six shall each be reduced by the same part of such
exemptions, credit, or net operating loss deduction (as the case may be)
as the number of months (or major portions thereof) in the taxable year
occurring before January first, nineteen hundred sixty-six is of the
number of months (or major portions thereof) in such taxable year.
Except as provided in this paragraph two, the tax for such period ending
before December thirty-first, nineteen hundred sixty-six, shall be
computed in accordance with the other provisions of this title.
§ 102. Meaning of terms. (a) General.--Unless a different meaning is
clearly required, any term used in this title shall have the same
meaning as when used in a comparable context in the laws of the United
States relating to federal income taxes, and any reference in this title
to the laws of the United States shall mean the provisions of the
internal revenue code of nineteen hundred fifty-four, and amendments
thereto, and other provisions of the laws of the United States relating
to federal income taxes, as the same are included in this title as an
appendix or as included by reference to an appendix of another title
enacted by the same local law as enacts this title. (The quotation of
the aforesaid laws of the United States is intended to make them a part
of this title and to avoid constitutional uncertainties which might
result if such laws were merely incorporated by reference. The quotation
of a provision of the federal internal revenue code or of any other law
of the United States shall not necessarily mean that it is applicable to
or has relevance to this title.)
(b) "State", "this state" or "the state" when used in this article
shall mean the state of New York.
(c) "City", "this city", or "the city" when used in this title shall
mean the city imposing this tax.
(d) "Local income taxes", when used in this title shall mean an income
tax imposed by a political subdivision of a state.
(e) "Tax commission" when used in this title shall mean the tax
commission of the state of New York.
(f) Attorney general.--The term "attorney general" when used in this
title shall mean the attorney general of the state of New York.
(g) "Comptroller" when used in this title shall mean the comptroller
of the state of New York.
(h) "Title" means this local law.
§ 103. Unincorporated business defined. (a) General.--An
unincorporated business means any trade, business, profession or
occupation conducted, engaged in or being liquidated by an individual or
unincorporated entity, including a partnership or fiduciary or a
corporation in liquidation, but not including any entity subject to tax
under any local law imposed pursuant to section one of the act
authorizing the adoption of this title and not including any entity
doing an insurance business as a member or members of the New York
insurance exchange described in paragraph (a) of subdivision one of
section four hundred twenty-five-a of the insurance law.
Unincorporated businesses subject to tax under a local law of the city
imposing a tax on utilities shall not be subject to tax under this part;
provided, however, that unincorporated businesses, other than utility
businesses subject to the supervision of the state department of public
service, which are subject to tax under a local law of the city imposing
a tax on vendors of utility services shall be subject to tax under this
part on that percentage of their entire net income allocable to the city
under section one hundred seven which their receipts other than those
taxable under such local law taxing vendors of utility services is of
their total receipts. If an individual or an unincorporated entity
carries on two or more unincorporated businesses, all such businesses
shall be treated as one unincorporated business for the purposes of this
title.
(b) Services as employee, et cetera.--The performance of services by
an individual as an employee or as an officer or director of a
corporation, society, association, or political entity, or as a
fiduciary, shall not be deemed an unincorporated business, unless such
services constitute part of a business regularly carried on by such
individual.
(d) Purchase and sale for own account.--An individual or other
unincorporated entity, except a dealer holding property primarily for
sale to customers in the ordinary course of his trade or business, shall
not be deemed engaged in an unincorporated business solely by reason of
the purchase and sale of property for his own account, but this
subdivision shall not apply if the unincorporated entity is taxable as a
corporation for federal income tax purposes.
(e) Holding, leasing or managing real property.--An owner of real
property, a lessee or a fiduciary shall not be deemed engaged in an
unincorporated business solely by reason of holding, leasing or managing
real property.
(f) Sales representative.--An individual, other than one who maintains
an office or who employs one or more assistants or who otherwise
regularly carries on a business, shall not be deemed engaged in an
unincorporated business solely by reason of selling goods, wares,
merchandise or insurance for more than one enterprise. For purposes of
this subdivision, space utilized solely for the display of merchandise
and/or for the maintenance and storage of records normally used in the
course of business shall not be deemed an office, and the employment of
clerical and secretarial assistance shall not be deemed the employment
of assistants.
(g) Exempt trusts and organizations.--A trust or other unincorporated
organization which by reason of its purposes or activities is exempt
from federal income tax shall not be deemed an unincorporated business
(regardless of whether subject to federal income tax on unrelated
business taxable income).
§ 104. Unincorporated business taxable income. The unincorporated
business taxable income of an unincorporated business shall be the
excess of its unincorporated business gross income over its
unincorporated business deductions, allocated to the city, less the
amount of:
(1) Its deductions under section one hundred eight not subject to
allocation; and
(2) Its unincorporated business exemptions under section one hundred
nine.
§ 105. Unincorporated business gross income. (a)
General.--Unincorporated business gross income of an unincorporated
business means the sum of the items of income and gain of the business,
of whatever kind and in whatever form paid, includible in gross income
for the taxable year for federal income tax purposes, including income
and gain from any property employed in the business, or from liquidation
of the business, or from collection of installment obligations of the
business, with the modifications specified in this section.
(b) Modifications increasing federal gross income.--There shall be
added to federal gross income of the business the following items
attributable to the business:
(1) Interest income on obligations of any state other than this state,
or of a political subdivision of any such other state unless created by
compact or agreement to which this state is a party; and
(2) Interest or dividend income on obligations or securities of any
authority, commission, or instrumentality of the United States, which
the laws of the United States exempt from federal income tax but not
from state or local income taxes.
(3) In the case of a taxpayer who has exercised the election permitted
by subdivision (b) of section one hundred eight, if the property to
which such election relates was sold or otherwise disposed of during the
taxable year, the amount required by said subdivision to be added to
federal gross income.
(4) The entire amount allowable as an exclusion or deduction for stock
transfer taxes imposed by article twelve of the tax law in determining
federal gross income but only to the extent that such taxes are incurred
and paid in market making transactions.
(5) the amount allowed as an exclusion or deduction for sales and use
taxes imposed by section eleven hundred seven of the tax law in
determining federal gross income but only such portion of such exclusion
or deduction which is not in excess of the amount of the credit allowed
pursuant to subdivision (d) of section one hundred one of this title.
(6) The amount allowed as an exclusion or deduction in determining
federal gross income and also allowed for the taxable year under this
section but only such portion of such exclusion or deduction which is
not in excess of the amount of the credit allowed pursuant to
subdivision (e) of section one hundred one of this title.
(7) The amount allowed as an exclusion or deduction as rent in
determining federal gross income but only such portion of such exclusion
or deduction which is not in excess of the amount of the credit allowed
pursuant to subdivision (f) of section one hundred one of this title.
(8) The amount allowed as an exclusion or deduction for sales and use
taxes imposed by section eleven hundred seven of the tax law in
determining federal gross income but only such portion of such exclusion
or deduction which is not in excess of the amount of the credit allowed
pursuant to subdivisions (g) and (h) of section one hundred one of this
title.
(9) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code (relating to qualified mass commuting vehicles), any amount
which would properly be includible for federal income tax purposes had
the taxpayer not made the election permitted pursuant to such paragraph
eight as it was in effect for agreements entered into prior to January
first, nineteen hundred eighty-four.
10. Upon the disposition of recovery property to which subdivision
thirteen of section one hundred six applies, the amount, of any, by
which the aggregate of the amounts described in such subdivision
thirteen attributable to such property exceeds the aggregate of the
amounts described in subdivision twelve of section one hundred six
attributable to such property.
(c) Modifications reducing federal gross income.--There shall be
subtracted from federal gross income of the business the following items
attributable to the business:
(1) Interest income on obligations of the United States and its
possessions to the extent includible in gross income for federal income
tax purposes;
(2) Interest or dividend income on obligations or securities of any
authority, commission or instrumentality of the United States to the
extent includible in gross income for federal income tax purposes but
exempt from state or local income taxes under the laws of the United
States;
(3) Interest or dividend income on obligations or securities to the
extent exempt from income tax under the laws of the city or this state
authorizing the issuance of such obligations or securities but
includible in gross income for federal income tax purposes; and
(4) The amount of any refund or credit for overpayment of income taxes
imposed by the city, this state or any other taxing jurisdiction, to the
extent properly included in gross income for federal income tax
purposes.
(5) With respect to gain derived from the sale or other disposition of
any property acquired prior to January first, nineteen hundred
sixty-six, except property described in subsections one and four of
section twelve hundred twenty-one of the internal revenue code, the
difference between
(a) the amount of gain included in federal gross income with respect
to each such property, and
(b) the amount of gain (if smaller than the amount described in (a))
that would be included in federal gross income with respect to each such
property if the federal adjusted basis of such property on the date of
the sale or other disposition had been equal to its fair market value on
January first, nineteen hundred sixty-six, or the date of its sale or
other disposition prior to January first, nineteen hundred sixty-six,
plus or minus all adjustments to basis made with respect to such
property for federal income tax purposes for periods on and after
January first, nineteen hundred sixty-six; provided, however, that the
total modification provided by this subparagraph shall not exceed the
taxpayer's net gain from the sale or other disposition of all such
property.
(6) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code (relating to qualified mass commuting vehicles), any amount
properly includible in federal gross income solely as a result of an
election made pursuant to the provisions of such paragraph eight as it
was in effect for agreements entered into prior to January first,
nineteen hundred eighty-four.
(7) Upon the disposition of recovery property to which subdivision
thirteen of section one hundred six applies, the amount, if any, by
which the aggregate of the amounts described in subdivision twelve of
section one hundred six attributable to such property exceeds the
aggregate of the amounts described in subdivision thirteen of section
one hundred six attributable to such property.
(d) Upon the disposition of property to which subdivisions 14 and 15
of section 106 of this chapter apply, the amount of any gain or loss
includible in entire net income shall be adjusted to reflect the
modifications provided in such subdivisions attributable to such
property.
§ 106. Unincorporated business deductions. The unincorporated business
deductions of an unincorporated business means the items of loss and
deduction directly connected with or incurred in the conduct of the
business, which are allowable for federal income tax purposes for the
taxable year (including losses and deductions connected with any
property employed in the business), with the following modifications:
(1) A deduction shall be allowed for charitable contributions of the
unincorporated business, to the extent that such contributions would be
deductible for federal income tax purposes if made by a corporation, but
not in excess of five per centum of the amount by which the
unincorporated business gross income exceeds the unincorporated business
deductions computed without the benefit of any deduction for charitable
contributions.
(2) A deduction shall be allowed for net operating losses incurred by
the unincorporated business in an amount computed in the same manner as
the net operating loss deduction which would be allowable for the
taxable year for federal income tax purposes if the unincorporated
business were an individual taxpayer (but determined solely by reference
to the unincorporated business gross income and unincorporated business
deductions, allocated to the city, of the unincorporated business). Such
deduction shall not include any net operating loss sustained during any
taxable year ending prior to January first, nineteen hundred sixty-six
and for the purposes of this paragraph net operating losses shall be
determined without regard to any deductions allowed pursuant to
subsection (b) of section one hundred eight and any net operating loss
for a taxable year beginning in nineteen hundred eighty-one shall be
computed without regard to the deduction allowed with respect to
recovery property under section one hundred sixty-eight of the internal
revenue code; in lieu of such deduction, a taxpayer shall be allowed for
such taxable year with respect to such property the depreciation
deduction allowable under section one hundred sixty-seven of such code
as such section was in full force and effect on December thirty-first,
nineteen hundred eighty.
(3) No deduction shall be allowed (except as provided in section one
hundred eight) for amounts paid or incurred to a proprietor or partner
for services or for use of capital.
(4) No deduction shall be allowed for income taxes imposed by the
city, this state or any other taxing jurisdiction.
(5) No deduction shall be allowed for (A) interest on indebtedness
incurred or continued to purchase or carry obligations or securities the
income from which is exempt from tax under this title; (B) expenses paid
or incurred for the production or collection of such income or the
management, conservation or maintenance of property held for the
production of such income; or (C) the amortizable bond premium on any
bond the interest income from which is so exempt.
(6) No deduction shall be allowed in respect of the excess of net
long-term capital gain over net short-term capital loss, but capital
losses incurred in the unincorporated business shall be treated as
ordinary losses and shall be allowed in full.
(7) In the case of a taxpayer who has exercised the election permitted
by subdivision (b) of section one hundred eight, no deduction shall be
allowed for expenditures with reference to the property to which such
election relates, or for depreciation of such property, except as
permitted by said subdivision.
(8) A deduction shall be allowed for (A) interest on indebtedness
incurred or continued to purchase or carry obligations or securities the
income from which is subject to tax under this title but exempt from
federal income tax; (B) ordinary and necessary expenses paid or incurred
during the taxable year for the production or collection of such income
or the management, conservation or maintenance of property held for the
production of such income; and (C) the amortizable bond premium for the
taxable year on any bond the interest on which is subject to tax under
this title but exempt from federal income tax.
(9) At the election of the taxpayer, a deduction shall be allowed for
expenditures paid or incurred during the taxable year for the
construction, reconstruction, erection or improvement of industrial
waste treatment facilities and air pollution control facilities.
(A) (i) The term "industrial waste treatment facilities" shall mean
facilities for the treatment, neutralization or stabilization of
industrial waste (as the term "industrial waste" is defined in section
twelve hundred two of the state public health law) from a point
immediately preceding the point of such treatment, neutralization or
stabilization to the point of disposal, including the necessary pumping
and transmitting facilities, but excluding such facilities installed for
the primary purpose of salvaging materials which are usable in the
manufacturing process or are marketable.
(ii) The term "air pollution control facilities" shall mean facilities
which remove, reduce, or render less noxious air contaminants emitted
from an air contamination source (as the terms "air contaminant" and
"air contamination source" are defined in section twelve hundred
sixty-seven of the state public health law) from a point immediately
preceding the point of such removal, reduction or rendering to the point
of discharge of air, meeting emission standards as established by the
air pollution control board, but excluding such facilities installed for
the primary purpose of salvaging materials which are usable in the
manufacturing process or are marketable and excluding those facilities
which rely for their efficacy on dilution, dispersion or assimilation of
air contaminants in the ambient air after emission.
(B) However, such deduction shall be allowed only
(i) with respect to tangible property which is depreciable, pursuant
to section one hundred sixty-seven of the internal revenue code, having
a situs in the city and used in the taxpayer's trade or business, the
construction, reconstruction, erection or improvement of which, in the
case of industrial waste treatment facilities, is initiated on or after
January first, nineteen hundred sixty-six, and only for expenditures
paid or incurred prior to January first, nineteen hundred seventy-two,
or which; in the case of air pollution control facilities, is initiated
on or after January first, nineteen hundred sixty-six, and
(ii) on condition that such facilities have been certified by the
state commissioner of health or his designated representative, pursuant
to the state public health law, as complying with the provisions of the
state public health law, the state sanitary code and regulations,
permits or orders promulgated pursuant thereto, and
(iii) on condition that for the taxable year and all succeeding
taxable years, no deduction for such expenditures or for depreciation of
the same property allowed for federal income tax purposes shall be
allowed under this title, except to the extent that the basis of the
property may be attributable to factors other than such expenditures, or
in case a deduction is allowable pursuant to this paragraph nine, for
only a part of such expenditures, on condition that any deduction
allowed for federal income tax purposes for such expenditures or for
depreciation of the same property be proportionately reduced in
computing unincorporated business deductions for the taxable year and
all succeeding taxable years, and
(iv) where the election provided for in subdivision (b) of section one
hundred eight has not been exercised in respect to the same property.
(C) (i) If expenditures in respect to an industrial waste treatment
facility or an air pollution control facility have been deducted as
provided herein and if within ten years from the end of the taxable year
in which such deduction was allowed such property or any part thereof is
used for the primary purpose of salvaging materials which are usable in
the manufacturing process or are marketable, the taxpayer shall report
such change of use in its return for the first taxable year during which
it occurs, and the director of finance may recompute the tax for the
year or years for which such deduction was allowed and any carryback or
carryover year, and may assess any additional tax resulting from such
recomputation within the time fixed by paragraph eight of subdivision
(c) of section one hundred thirty-one.
(ii) If a deduction is allowed as herein provided for expenditures
paid or incurred during any taxable year on the basis of a temporary
certificate of compliance issued pursuant to the state public health
law, and if the taxpayer fails to obtain a permanent certificate of
compliance upon completion of the facilities with respect to which such
temporary certificate was issued, the taxpayer shall report such failure
in its report for the taxable year during which such facilities are
completed, and the director of finance may recompute the tax for the
year or years for which such deduction was allowed and any carryback or
carryover year, and may assess any additional tax resulting from such
recomputation within the time fixed by paragraph eight of subdivision
(c) of section one hundred thirty-one.
(D) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to this
paragraph nine, such deduction shall be disregarded in computing gain or
loss, and the gain or loss on the sale or other disposition of such
property shall be the gain or loss allowable for federal income tax
purposes for such taxable year.
(10) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code (relating to qualified mass commuting vehicles), a
deduction shall be allowed for any amount which the taxpayer could have
excluded for purposes of this title had it not made the election
provided for in such paragraph eight as it was in effect for agreements
entered into prior to January first, nineteen hundred eighty-four.
(11) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to property which is a qualified
mass commuting vehicle described in subparagraph (D) of paragraph eight
of subsection (f) of section one hundred sixty-eight of the internal
revenue code (relating to qualified mass commuting vehicles), no
deduction shall be allowed for any amount deductible for federal income
tax purposes solely as a result of an election made pursuant to the
provisions of such paragraph eight as it was in effect for agreements
entered into prior to January first, nineteen hundred eighty-four.
(12) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to recovery property subject to
the provisions of section two hundred eighty-F of the internal revenue
code and recovery property placed in service in this state in taxable
years beginning after December thirty-first, nineteen hundred
eighty-four, no deduction shall be allowed for the amount allowable as a
deduction under section one hundred sixty-eight of the internal revenue
code.
(13) For taxable years beginning after December thirty-first, nineteen
hundred eighty-one, except with respect to recovery property subject to
the provisions of section two hundred eighty-F of the internal revenue
code and recovery property placed in service in this state in taxable
years beginning after December thirty-first, nineteen hundred
eighty-four, and provided a deduction has not been disallowed pursuant
to subdivision eleven of this section, a taxpayer shall be allowed with
respect to recovery property the depreciation deduction allowable under
section one hundred sixty-seven of the internal revenue code as such
section would have applied to property placed in service on December
thirty-first, nineteen hundred eighty.
(14) For taxable years ending after September 10, 2001, in the case of
qualified property described in paragraph 2 of subsection k of section
168 of the internal revenue code, other than qualified resurgence zone
property described in subdivision 16 of this section, and other than
qualified New York Liberty Zone property described in paragraph 2 of
subsection b of section 1400L of the internal revenue code (without
regard to clause (i) of subparagraph (C) of such paragraph), no
deduction shall be allowed for the amount allowable as a deduction under
section 167 of the internal revenue code.
(15) For taxable years ending after September 10, 2001, in the case of
qualified property described in paragraph 2 of subsection k of section
168 of the internal revenue code, other than qualified resurgence zone
property described in subdivision 16 of this section, and other than
qualified New York Liberty Zone property described in paragraph 2 of
subsection b of section 1400L of the internal revenue code (without
regard to clause (i) of subparagraph (C) of such paragraph), a deduction
shall be allowed with respect to such property equal to the depreciation
deduction allowable under section 167 of the internal revenue code as
such section would have applied to such property had it been acquired by
the taxpayer on September 10, 2001.
(16) For purposes of subdivisions 14 and 15 of this section, qualified
resurgence zone property shall mean qualified property described in
paragraph 2 of subsection k of section 168 of the internal revenue code
substantially all of the use of which is in the resurgence zone, as
defined below, and is in the active conduct of a trade or business by
the taxpayer in such zone, and the original use of which in the
resurgence zone commences with the taxpayer after September 10, 2001.
The resurgence zone shall mean the area of New York county bounded on
the south by a line running from the intersection of the Hudson River
with the Holland Tunnel, and running thence east to Canal Street, then
running along the centerline of Canal Street to the intersection of the
Bowery and Canal Street, running thence in a southeasterly direction
diagonally across Manhattan Bridge Plaza, to the Manhattan Bridge and
thence along the centerline of the Manhattan Bridge to the point where
the centerline of the Manhattan Bridge would intersect with the easterly
bank of the East River, and bounded on the north by a line running from
the intersection of the Hudson River with the Holland Tunnel and running
thence north along West Avenue to the intersection of Clarkson Street
then running east along the centerline of Clarkson Street to the
intersection of Washington Avenue, then running south along the
centerline of Washington Avenue to the intersection of West Houston
Street, then east along the centerline of West Houston Street, then at
the intersection of the Avenue of the Americas continuing east along the
centerline of East Houston Street to the easterly bank of the East
River.
§ 107. Allocation to the city. (a) General.--If an unincorporated
business is carried on both within and without the city, as determined
under regulations of the director of finance, there shall be allocated
to the city a fair and equitable portion of the excess of its
unincorporated business gross income over its unincorporated business
deductions. If the unincorporated business has no regular place of
business outside the city, all of such excess shall be allocated to the
city.
(b) Allocation by taxpayer's books.--The portion allocable to the city
may be determined from the books of the business if the methods used in
keeping such books are approved by the director of finance as fairly and
equitably reflecting the income from the city.
(c) Allocation by formula.--If subdivision (b) does not apply to the
taxpayer, the portion allocable to the city shall be determined by
multiplying (A) the excess of its unincorporated business gross income
over its unincorporated business deduction, by (B) the average of the
following three percentages:
(1) Property percentage.--The percentage computed by dividing (A) the
average of the value, at the beginning and end of the taxable year, of
real and tangible personal property connected with the unincorporated
business and located within the city, by (B) the average of the value,
at the beginning and end of the taxable year, of all real and tangible
personal property connected with the unincorporated business and located
both within and without the city. For this purpose, real property shall
include real property rented to the unincorporated business.
(2) Payroll percentage.--The percentage computed by dividing (A) the
total wages, salaries and other personal service compensation paid or
incurred during the taxable year to employees in connection with the
unincorporated business carried on within the city, by (B) the total of
all wages, salaries and other personal service compensation paid or
incurred during the taxable year to employees in connection with the
unincorporated business carried on both within and without the city.
(3) Gross income percentage.--The percentage computed by dividing (A)
the gross sales or charges for services performed by or through an
agency located within the city, by (B) the total of all gross sales or
charges for services performed within and without the city. The sales or
charges to be allocated to the city shall include all sales negotiated
or consummated, and charges for services performed, by an employee,
agent, agency or independent contractor chiefly situated at, connected
by contract or otherwise with, or sent out from, offices of the
unincorporated business, or other agencies, situated within the city.
(d) Other allocation methods.--The portion allocable to the city shall
be determined in accordance with rules and regulations of the director
of finance if it shall appear to the director of finance that the income
from the city is not fairly and equitably reflected under the provisions
of either subdivision (b) or subdivision (c).
(e) Special rules for real estate.--Income and deductions from the
rental of real property, and gain and loss from the sale, exchange or
other disposition of real property, shall not be subject to allocation
under subdivisions (b), (c), or (d), but shall be considered as entirely
derived from or connected with the state, other than this state, in
which such property is located or, if such property is located in this
state, the political subdivision thereof.
§ 108. Deductions not subject to allocation. (a) In computing
unincorporated business taxable income, there shall be allowed (without
allocation under section one hundred seven) deductions for reasonable
compensation not in excess of five thousand dollars for personal
services of the proprietor and of each partner actively engaged in the
unincorporated business, but the aggregate of such deductions shall not
exceed twenty per centum of the unincorporated business taxable income
computed without the benefit of any deductions under this section or the
unincorporated business exemptions under section one hundred nine.
(b) At the election of the taxpayer there shall also be allowed
(without allocation under section one hundred seven) either or both of
the items set forth in paragraphs one and two of this subdivision,
except that only one of such items shall be allowed with respect to any
one item of property.
(1) Depreciation with respect to any property such as described in
paragraph three of this subdivision, not exceeding twice the
depreciation allowed with respect to the same property for federal
income tax purposes. Such deduction shall be allowed only upon
condition that no deduction shall be allowed pursuant to section one
hundred six for depreciation of the same property, and the total of all
deductions allowed pursuant to this paragraph in any taxable year or
years with respect to any property shall not exceed its cost or other
basis.
(2) Expenditures paid or incurred during the taxable year for the
construction, reconstruction, erection or acquisition of any property
such as described in paragraph three of this subdivision which is used
or to be used for purposes of research or development in the
experimental or laboratory sense. Such purposes shall not be deemed to
include the ordinary testing or inspection of materials or products for
quality control, efficiency surveys, management studies, consumer
surveys, advertising, promotions or research in connection with
literary, historical or similar projects. Such deduction shall be
allowed only on condition that, for the taxable year and all succeeding
taxable years, no deduction shall be allowed pursuant to section one
hundred six on account of such expenditures or on account of
depreciation of the same property, except to the extent that its basis
may be attributable to factors other than such expenditures, or in case
a deduction is allowable pursuant to this paragraph for only a part of
such expenditures, on condition that any deduction allowable for federal
income tax purposes on account of such expenditures or on account of
depreciation of the same property shall be proportionately reduced in
determining the deductions allowable pursuant to section one hundred six
for the taxable year and all succeeding taxable years. With respect to
property which is used or to be used for research and development only
in part, or during only part of its useful life, the deduction allowable
pursuant to this paragraph shall be limited to a proportionate part of
the expenditures relating thereto. If a deduction shall have been
allowed pursuant to this paragraph for all or part of such expenditures
with respect to any property, and such property is used for purposes
other than research and development to a greater extent than originally
reported, the taxpayer shall report such use in the taxpayer's return
for the first taxable year during which it occurs, and the director of
finance may recompute the tax for the year or years for which such
deduction was allowed, and may assess any additional tax resulting from
such recomputation within the time fixed by subdivision (c) of section
one hundred thirty-one.
(3) Such deductions shall be allowed only with respect to tangible
property which is depreciable pursuant to section one hundred
sixty-seven of the internal revenue code, having a situs in the city and
used in the taxpayer's trade or business, (A) the construction,
reconstruction or erection of which is completed after December
thirty-first, nineteen hundred sixty-five, and then only with respect to
that portion of the basis thereof or the expenditures relating thereto
which is properly attributable to such construction, reconstruction or
erection after December thirty-first, nineteen hundred sixty-five, or
(B) acquired after December thirty-first, nineteen hundred sixty-five by
purchase as defined in section one hundred seventy-nine (d) of the
internal revenue code, if the original use of such property commenced
with the taxpayer, commenced in the city and commenced after such date.
(4) If the deductions allowable for any taxable year pursuant to this
subdivision exceed the taxpayer's unincorporated business taxable
income, determined without the allowance of such deductions, the excess
may be carried over to the following taxable year or years and may be
deducted (without allocation under section one hundred seven) in
computing unincorporated business taxable income for such year or years.
(5) In any taxable year when property is sold or otherwise disposed
of, with respect to which a deduction has been allowed pursuant to
paragraph one or two of this subdivision, the basis of such property
shall be adjusted to reflect the deductions so allowed, and if the basis
as so adjusted is lower than the adjusted basis of the same property for
federal income tax purposes, there shall be added to federal gross
income the amount of the difference between such adjusted bases.
§ 109. Unincorporated business exemptions. In computing unincorporated
business taxable income, there shall be allowed (without allocation
under section one hundred seven):
(1) an unincorporated business exemption of five thousand dollars,
prorated for taxable years of less than twelve months under regulations
of the director of finance;
(2) if a partner in an unincorporated business is taxable under this
title or under any local law imposed pursuant to section one of the act
authorizing the adoption of this title, an exemption for the amount of
the partner's proportionate interest in the excess of the unincorporated
business gross income over the deductions allowed under sections one
hundred six and one hundred eight, but this exemption shall be limited
to the amount which is included in the partner's unincorporated business
taxable income allocable to the city, or included in a corporate
partner's net income allocable to the city.
§ 115. Declarations of estimated tax. (a) Requirement of
declaration.--Except as provided in subdivision (j), every
unincorporated business shall make a declaration of its estimated tax
for the taxable year, containing such information as the commissioner of
finance may prescribe by regulations or instruction, if its
unincorporated business taxable income can reasonably be expected to
exceed fifteen thousand dollars.
(b) Definition of estimated tax.-- The term "estimated tax" means the
amount which an unincorporated business estimates to be its tax under
this title for the taxable year, less the amount which it estimates to
be the sum of any credits allowable against the tax other than the
credit allowable under subdivision (c) of section one hundred one of
this chapter.
(c) Time for filing declaration.--Except as hereinafter provided, a
declaration of estimated tax required under this section shall be filed
on or before April fifteenth of the taxable year provided, however, that
if the requirements of subdivision (a) are first met:
(1) after April first and before June second of the taxable year, the
declaration shall be filed on or before June fifteenth, or
(2) after June first and before September second of the taxable year,
the declaration shall be filed on or before September fifteenth, or
(3) after September first of the taxable year, the declaration shall
be filed on or before January fifteenth of the succeeding year.
(d) Filing of declarations on or before January fifteenth.--
(1) A declaration of estimated tax by an unincorporated business
having an estimated unincorporated business taxable income from farming
(including oyster farming) for the taxable year which is at least
two-thirds of its total estimated unincorporated business taxable income
for the taxable year may be filed at any time on or before January
fifteenth of the succeeding year.
(2) A declaration of estimated tax under this section of forty dollars
or less for the taxable year may be filed at any time on or before
January fifteenth of the succeeding year under regulations of the
director of finance.
(e) Amendments of declaration.--An unincorporated business may amend a
declaration under regulations of the director of finance.
(f) Return as declaration or amendment.--If on or before February
fifteenth of the succeeding taxable year an unincorporated business
subject to the estimated tax requirements of this section files its
return for the taxable year for which the declaration is required, and
pays on or before such date the full amount of the tax shown to be due
on the return:
(1) such return shall be considered as its declaration if no
declaration was required to be filed during the taxable year, but is
otherwise required to be filed on or before January fifteenth of the
succeeding year, and
(2) such return shall be considered as the amendment permitted by
subdivision (e) to be filed on or before January fifteenth if the tax
shown on the return is greater than the estimated tax shown in a
declaration previously made.
(g) Fiscal year.--This section shall apply to a taxable year other
than a calendar year by the substitution of the months of such fiscal
year for the corresponding months specified in this section.
(h) Short taxable year.--An unincorporated business subject to the
estimated tax requirements of this section and having a taxable year of
less than twelve months shall make a declaration in accordance with
regulations of the director of finance.
(i) Declaration of unincorporated business under a disability.--The
declaration of estimated tax for an unincorporated business which is
unable to make a declaration for any reason shall be made and filed by
the committee, fiduciary or other person charged with the care of the
property of such unincorporated business (other than a receiver in
possession of only a part of such property), or by his duly authorized
agent.
(j) Declaration of estimated tax for taxable years beginning prior to
the date of enactment of this title.--Notwithstanding subdivision (c) of
this section, no declaration of estimated tax required by subdivision
(a) of this section need be filed until sixty days after the date that
this title becomes effective.
§ 116. Payments of estimated tax. (a) General.--The estimated tax
with respect to which a declaration is required shall be paid as
follows:
(1) If the declaration is filed on or before April fifteenth of the
taxable year, the estimated tax shall be paid in four equal
installments. The first installment shall be paid at the time of the
filing of the declaration, and the second, third and fourth installments
shall be paid on the following June fifteenth, September fifteenth, and
January fifteenth, respectively.
(2) If the declaration is filed after April fifteenth and not after
June fifteenth of the taxable year, and is not required to be filed on
or before April fifteenth of the taxable year, the estimated tax shall
be paid in three equal installments. The first installment shall be paid
at the time of the filing of the declaration, and the second and third
installments shall be paid on the following September fifteenth and
January fifteenth, respectively.
(3) If the declaration is filed after June fifteenth and not after
September fifteenth of the taxable year, and is not required to be filed
on or before June fifteenth of the taxable year, the estimated tax shall
be paid in two equal installments. The first installment shall be paid
at the time of the filing of the declaration, and the second shall be
paid on the following January fifteenth.
(4) If the declaration is filed after September fifteenth of the
taxable year, and is not required to be filed on or before September
fifteenth of the taxable year, the estimated tax shall be paid in full
at the time of the filing of the declaration.
(5) If the declaration is filed after the time prescribed therefor, or
after the expiration of any extension of time therefor, paragraphs (2),
(3) and (4) of this subdivision shall not apply, and there shall be paid
at the time of such filing all installments of estimated tax payable at
or before such time, and the remaining installments shall be paid at the
times at which, and in the amounts in which, they would have been
payable if the declaration had been filed when due.
(b) Amendments of declaration.--If any amendment of a declaration is
filed, the remaining installments, if any, shall be ratably increased or
decreased (as the case may be) to reflect any increase or decrease in
the estimated tax by reason of such amendment, and if any amendment is
made after September fifteenth of the taxable year, any increase in the
estimated tax by reason thereof shall be paid at the time of making such
amendment.
(c) Application to short taxable year.--This section shall apply to a
taxable year of less than twelve months in accordance with regulations
of the director of finance.
(d) Fiscal year.--This section shall apply to a taxable year other
than a calendar year by the substitution of the months of such fiscal
year for the corresponding months specified in this section.
(e) Installments paid in advance.--An unincorporated business may
elect to pay any installment of its estimated tax prior to the date
prescribed for the payment thereof.
(f) Cross reference.--For unincorporated businesses with taxable years
beginning prior to the date that this title becomes effective, see
subdivision (j) of section one hundred fifteen.
(g) The portion of an overpayment attributable to a credit allowable
pursuant to subdivision (c) of section one hundred one of of this
chapter may not be credited against any payment due under this section.
§ 121. Accounting periods and methods. (a) Accounting periods.--A
taxpayer's taxable year under this title shall be the same as the
taxpayer's taxable year for federal income tax purposes.
(b) Accounting methods.--A taxpayer's method of accounting under this
title shall be the same as the taxpayer's method of accounting for
federal income tax purposes. In the absence of any method of accounting
for federal income tax purposes, unincorporated business taxable income
shall be computed under such method as in the opinion of the director of
finance clearly reflects income.
(c) Change of accounting period or method.--(1) If a taxpayer's
taxable year or method of accounting is changed for federal income tax
purposes, the taxable year or method of accounting for purposes of this
title shall be similarly changed.
(2) If a taxpayer's method of accounting is changed, other than from
an accrual to an installment method, any additional tax which results
from adjustments determined to be necessary solely by reason of the
change shall not be greater than if such adjustments were ratably
allocated and included for the taxable year of the change and the
preceding taxable years, not in excess of two, beginning after January
first, nineteen hundred sixty-six, during which the taxpayer used the
method of accounting from which the change is made.
(3) If a taxpayer's method of accounting is changed from an accrual to
an installment method, any additional tax for the year of such change of
method and for any subsequent year which is attributable to the receipt
of installment payments properly accrued in a prior year, shall be
reduced by the portion of tax for any prior taxable year attributable to
the accrual of such installment payments, in accordance with regulations
of the director of finance.
§ 122. Returns, payment of tax. (a) General.--On or before the
fifteenth day of the fourth month following the close of a taxable year,
an unincorporated business income tax return shall be made and filed,
and the balance of any tax shown on the face of such return, not
previously paid as installments of estimated tax, shall be paid, by or
for every unincorporated business having unincorporated business gross
income, determined for purposes of this subdivision without any
deduction for the cost of goods sold or services performed, of more than
ten thousand dollars, or having any amount of unincorporated business
taxable income.
(b) Decedents.--The return for any deceased individual shall be made
and filed by his executor, administrator, or other person charged with
his property. If a final return of a decedent is for a fractional part
of a year, the due date of such return shall be the fifteenth day of the
fourth month following the close of the twelve-month period which began
with the first day of such fractional part of the year.
(c) Individuals under a disability.--The return for an individual who
is unable to make a return by reason of minority or other disability
shall be made and filed by his guardian, committee, fiduciary or other
person charged with the care of his person or property (other than a
receiver in possession of only a part of his property), or by his duly
authorized agent.
(d) Estates and trusts.--The return for an estate or trust shall be
made and filed by the fiduciary.
(e) Joint fiduciaries.--If two or more fiduciaries are acting jointly,
the return may be made by any one of them.
(f) Returns for taxable years ending prior to December thirty-first
nineteen hundred sixty-six.--With respect to taxable years ending prior
to December thirty-first nineteen hundred sixty-six, the returns
required to be made and filed pursuant to this section shall be made and
filed on or before the fifteenth day of the fourth month following the
close of such taxable year or the sixtieth day following the date that
this title becomes effective, whichever is later.
(g) Taxpayers with credit relating to stock transfer tax.--Subdivision
(a) of this section shall apply to a taxpayer which has a right to a
credit pursuant to subdivision (c) of section one hundred one of this
chapter except that the tax, or balance thereof, payable to the director
of finance in full pursuant to subdivision (a) of this section, at the
time the return is required to be filed, shall be calculated and paid at
such time as if the credit provided for in subdivision (c) of section
one hundred one of this chapter were not allowed.
§ 123. Time and place for filing returns and paying tax. A person
required to make and file a return under this title shall, without
assessment, notice or demand, pay any tax due thereon to the director of
finance on or before the date fixed for filing such return (determined
without regard to any extension of time for filing the return). The
director of finance shall prescribe by regulation the place for filing
any return, declaration, statement, or other document required pursuant
to this title and for payment of any tax.
§ 124. Signing of returns and other documents. (a) General.--Any
return, declaration, statement or other document required to be made
pursuant to this title shall be signed in accordance with regulations or
instructions prescribed by the director of finance. The fact that an
individual's name is signed to a return, declaration, statement, or
other document, shall be prima facie evidence for all purposes that the
return, declaration, statement or other document was actually signed by
him.
(b) Partnerships.--Any return, statement or other document required of
a partnership shall be signed by one or more partners. The fact that a
partner's name is signed to a return, statement, or other document,
shall be prima facie evidence for all purposes that such partner is
authorized to sign on behalf of the partnership.
(c) Certifications.--The making or filing of any return, declaration,
statement or other document or copy thereof required to be made or filed
pursuant to this title, including a copy of a federal return, shall
constitute a certification by the person making or filing such return,
declaration, statement or other document or copy thereof that the
statements contained therein are true and that any copy filed is a true
copy.
§ 125. Extensions of time. (a) General.--The director of finance may
grant a reasonable extension of time for payment of tax or estimated tax
(or any installment), or for filing any return, declaration, statement,
or other document required pursuant to this title, on such terms and
conditions as it may require. Except for a taxpayer who is outside the
United States, no such extension for filing any return, declaration,
statement or other document, shall exceed six months.
(b) Furnishing of security.--If any extension of time is granted for
payment of any amount of tax, the director of finance may require the
taxpayer to furnish a bond or other security in an amount not exceeding
twice the amount for which the extension of time for payment is granted,
on such terms and conditions as the director of finance may require.
§ 126. Requirements concerning returns, notices, records and
statements. (a) General.--The director of finance may prescribe
regulations as to the keeping of records, the content and form of
returns and statements, and the filing of copies of federal income tax
returns and determinations. The director of finance may require any
person, by regulation or notice served upon such person, to make such
returns, render such statements, or keep such records, as the director
of finance may deem sufficient to show whether or not such person is
liable under this title for tax or for collection of tax.
(b) Notice of qualification as receiver, etc.--Every receiver, trustee
in bankruptcy, assignee for benefit of creditors, or other like
fiduciary shall give notice of his qualification as such to the director
of finance, as may be required by regulation.
§ 127. Report of change in federal taxable income.--If the amount of a
taxpayer's federal taxable income reported on his federal income tax
return for any taxable year is changed or corrected by the United States
internal revenue service or other competent authority, or as the result
of a renegotiation of a contract or subcontract with the United States,
or if a taxpayer, pursuant to subsection (d) of section sixty-two
hundred thirteen of the internal revenue code, executes a notice of
waiver of the restrictions provided in subsection (a) of said section,
the taxpayer shall report such change or correction in federal taxable
income or such execution of such notice of waiver and the changes or
corrections of his federal taxable income on which it is based, within
ninety days after the final determination of such change, correction, or
renegotiation, or such execution of such notice of waiver, or as
otherwise required by the director of finance, and shall concede the
accuracy of such determination or state wherein it is erroneous. Any
taxpayer filing an amended federal income tax return shall also file
within ninety days thereafter an amended return under this title, and
shall give such information as the director of finance may require. The
director of finance may by regulation prescribe such exceptions to the
requirements of this section as he deems appropriate.
§ 127-A. Reporting of changes or corrections in sales and compensating
use tax liability.--Where the state tax commission changes or corrects a
taxpayer's sales and compensating use tax liability with respect to the
purchase or use of items for which a sales or compensating use tax
credit against the tax imposed by this title was claimed, the taxpayer
shall report such change or correction to the commissioner of finance
within ninety days of the final determination of such change or
correction, or as required by the commissioner of finance, and shall
concede the accuracy of such determination or state wherein it is
erroneous. Any taxpayer filing an amended return or report relating to
the purchase or use of such items shall also file within ninety days
thereafter a copy of such amended return or report with the commissioner
of finance.
§ 128. Change of election. Any election expressly authorized by this
title, other than the election authorized by subdivision (d) of section
one hundred five, may be changed on such terms and conditions as the
director of finance may prescribe by regulation.
§ 129. Notice of deficiency. (a) General.--If upon examination of a
taxpayer's return under this title the director of finance determines
that there is a deficiency of income tax, he may mail a notice of
deficiency to the taxpayer. If a taxpayer fails to file a return
required under this title, the director of finance is authorized to
estimate the taxpayer's city unincorporated business taxable income and
tax thereon, from any information in his possession, and to mail a
notice of deficiency to the taxpayer. A notice of deficiency shall be
mailed by certified or registered mail to the taxpayer at his last known
address in or out of the city. If the taxpayer is deceased or under a
legal disability, a notice of deficiency may be mailed to his last known
address in or out of the city, unless the director of finance has
received notice of the existence of a fiduciary relationship with
respect to the taxpayer.
(b) Notice of deficiency as assessment.--After ninety days from the
mailing of a notice of deficiency, such notice shall be an assessment of
the amount of tax specified in such notice, together with the interest,
additions to tax and penalties stated in such notice, except only for
any such tax or other amounts as to which the taxpayer has within such
ninety day period filed with the director of finance a petition under
section one hundred thirty-seven. If the notice of deficiency is
addressed to a person outside of the United States, such period shall be
one hundred fifty days instead of ninety days.
(c) Restrictions on assessment and levy.--No assessment of a
deficiency in tax and no levy or proceeding in court for its collection
shall be made, begun or prosecuted, except as otherwise provided in
section one hundred forty-two, until a notice of deficiency has been
mailed to the taxpayer, nor until the expiration of the time for filing
a petition contesting such notice, nor, if a petition with respect to
the taxable year has been filed with the director of finance, until the
decision of the director of finance has become final. For exception in
the case of judicial review of the decision of the director of finance,
see subdivision (c) of section one hundred thirty-eight.
(d) Exceptions for mathematical errors.--If a mathematical error
appears on a return (including an overstatement of the amount paid as
estimated income tax), the director of finance shall notify the taxpayer
that an amount of tax in excess of that shown upon the return is due,
and that such excess has been assessed.
Such notice shall not be considered as a notice of deficiency for the
purposes of this section, subdivision (f) of section one hundred
thirty-five (limiting credits or refunds after petition to the director
of finance), or subdivision (b) of section one hundred thirty-seven
(authorizing the filing of a petition with the director of finance based
on a notice of deficiency) nor shall such assessment or collection be
prohibited by the provisions of subdivision (c).
(e) Exception where change in federal taxable income is not
reported.--(1) If the taxpayer fails to comply with section one hundred
twenty-seven in not reporting a change or correction increasing or
decreasing his federal taxable income as reported on his federal income
tax return or in not reporting a change or correction which is treated
in the same manner as if it were a deficiency for federal income tax
purposes or in not filing an amended return or in not reporting the
execution of a notice of waiver described in such section, instead of
the mode and time of assessment provided for in subdivision (b) of this
section, the commissioner of finance may assess a deficiency based upon
such changed or corrected federal taxable income by mailing to the
taxpayer a notice of additional tax due specifying the amount of the
deficiency, and such deficiency, together with the interest, additions
to tax and penalties stated in such notice, shall be deemed assessed on
the date such notice is mailed unless within thirty days after the
mailing of such notice a report of the federal change or correction or
an amended return, where such return was required by section one hundred
twenty-seven, is filed accompanied by a statement showing wherein such
federal determination and such notice of additional tax due are
erroneous.
(2) Such notice shall not be considered as a notice of deficiency for
the purposes of this section, subdivision (f) of section one hundred
thirty-five (limiting credits or refunds after petition to the director
of finance), or subdivision (b) of section one hundred thirty-seven
(authorizing the filing of a petition with the director of finance based
on a notice of deficiency), nor shall such assessment or the collection
thereof be prohibited by the provisions of subdivision (c).
(3) If the taxpayer is deceased or under a legal disability, a notice
of additional tax due may be mailed to his last known address in or out
of the city, unless the director of finance has received notice of the
existence of a fiduciary relationship with respect to the taxpayer.
(f) Waiver of restrictions.--The taxpayer shall at any time (whether
or not a notice of deficiency has been issued) have the right to waive
the restrictions on assessment and collection of the whole or any part
of the deficiency by a signed notice in writing filed with the director
of finance.
(g) Deficiency defined.-- For purposes of this title, a deficiency
means the amount of the tax imposed by this title, less (i) the amount
shown as the tax upon the taxpayer's return (whether the return was made
or the tax computed by him or by the director of finance), and less,
(ii) the amounts previously assessed (or collected without assessment)
as a deficiency and plus (iii) the amount of any rebates. For the
purpose of this definition, the tax imposed by this title and the tax
shown on the return shall both be determined without regard to payments
on account of estimated tax; and a rebate means so much of an abatement,
credit, refund or other repayment (whether or not erroneous) made on the
ground that the amounts entering into the definition of a deficiency
showed a balance in favor of the taxpayer.
(h) Exception where change or correction of sales and compensating use
tax liability is not reported.--(1) If a taxpayer fails to comply with
section one hundred twenty-seven-A in not reporting a change or
correction of his sales and compensating use tax liability or in not
filing a copy of an amended return or report relating to his sales and
compensating use tax liability, instead of the mode and time of
assessment provided for in subdivision (b) of this section, the
commissioner of finance may assess a deficiency based upon such changed
or corrected sales and compensating use tax liability, as same relates
to credits claimed under section one hundred one, by mailing to the
taxpayer a notice of additional tax due specifying the amount of the
deficiency, and such deficiency, together with the interest, additions
to tax and penalties stated in such notice, shall be deemed assessed on
the date such notice is mailed unless within thirty days after the
mailing of such notice a report of the state change or correction or a
copy of an amended return or report, where such copy was required by
section one hundred twenty-seven-A, is filed accompanied by a statement
showing wherein such state determination and such notice of additional
tax due are erroneous.
(2) Such notice shall not be considered as a notice of deficiency for
the purposes of this section, subdivision (f) of section one hundred
thirty-five (limiting credits or refunds after petition to the
commissioner of finance), or subdivision (b) of section one hundred
thirty-seven (authorizing the filing of a petition with the commissioner
of finance based on a notice of deficiency), nor shall such assessment
or the collection thereof be prohibited by the provisions of subdivision
(c) of this section.
(3) If the taxpayer is deceased or under a legal disability, a notice
of additional tax due may be mailed to his last known address in or out
of the city, and such notice shall be sufficient for purposes of this
title. If the commissioner of finance has received notice that a person
is acting for the taxpayer in a fiduciary capacity, a copy of such
notice shall also be mailed to the fiduciary named in such notice.
§ 130. Assessment. (a) Assessment date.--The amount of tax which a
return shows to be due, or the amount of tax which a return would have
shown to be due but for a mathematical error, shall be deemed to be
assessed on the date of filing of the return (including any amended
return showing an increase of tax). In the case of a return properly
filed without computation of tax, the tax computed by the director of
finance shall be deemed to be assessed on the date on which payment is
due. If a notice of deficiency has been mailed, the amount of the
deficiency shall be deemed to be assessed on the date specified in
subdivision (b) of section one hundred twenty-nine if no petition to the
director of finance is filed, or if a petition is filed, then upon the
date when a decision of the director of finance establishing the amount
of the deficiency becomes final. If an amended return or report filed
pursuant to section one hundred twenty-seven concedes the accuracy of a
federal adjustment, change or correction, any deficiency in tax under
this title resulting therefrom shall be deemed to be assessed on the
date of filing such report or amended return, and such assessment shall
be timely notwithstanding section one hundred thirty-one. If a report
filed pursuant to section one hundred twenty-seven-A concedes the
accuracy of a state change or correction of sales and compensating use
tax liability, any deficiency in tax under this title resulting
therefrom shall be deemed assessed on the date of filing such report,
and such assessment shall be timely notwithstanding section one hundred
thirty-one. If a notice of additional tax due, as prescribed in
subdivision (e) of section one hundred twenty-nine, has been mailed, the
amount of the deficiency shall be deemed to be assessed on the date
specified in such subdivision unless within thirty days after the
mailing of such notice a report of the federal change or correction or
an amended return, where such return was required by section one hundred
twenty-seven, is filed accompanied by a statement showing where in such
federal determination and such notice of additional tax due are
erroneous. If a notice of additional tax due, as prescribed in
subdivision (h) of section one hundred twenty-nine, has been mailed, the
amount of the deficiency shall be deemed to be assessed on the date
specified in such subdivision unless within thirty days after the
mailing of such notice a report of the state change or correction, or a
copy of an amended return or report, where such copy was required by
section one hundred twenty-seven-A, is filed accompanied by a statement
showing wherein such state determination and such notice of additional
tax due are erroneous. Any amount paid as a tax or in respect of a tax,
other than amounts paid as estimated income tax, shall be deemed to be
assessed upon the date of receipt of payment, notwithstanding any other
provisions.
(b) Other assessment powers.--If the mode or time for the assessment
of any tax under this title (including interest, additions to tax and
assessable penalties) is not otherwise provided for, the director of
finance may establish the same by regulations.
(c) Estimated income tax.--No unpaid amount of estimated tax under
section one hundred sixteen shall be assessed.
(d) Supplemental assessment.--The director of finance may, at any time
within the period prescribed for assessment, make a supplemental
assessment, subject to the provisions of section one hundred twenty-nine
where applicable, whenever it is ascertained that any assessment is
imperfect or incomplete in any material respect.
(e) Cross reference.--For assessment in case of jeopardy, see section
one hundred forty-two.
§ 131. Limitations on assessment. (a) General.--Except as otherwise
provided in this section, any tax under this title shall be assessed
within three years after the return was filed (whether or not such
return was filed on or after the date prescribed).
(b) Time return deemed filed.--For purposes of this section a return
of income tax filed before the last day prescribed by law or by
regulations promulgated pursuant to law for the filing thereof, shall be
deemed to be filed on such last day.
(c) Exceptions.--(1) Assessment at any time.--The tax may be assessed
at any time if--
(A) no return is filed,
(B) a false or fraudulent return is filed with intent to evade tax,
(C) the taxpayer fails to comply with section one hundred twenty-seven
in not reporting a change or correction increasing or decreasing his
federal taxable income as reported on his federal income tax return, or
the execution of a notice of waiver and the changes or corrections on
which it is based or in not reporting a change or correction which is
treated in the same manner as if it were a deficiency for federal income
tax purposes, or in not filing an amended return, or
(D) the taxpayer fails to file a report or amended return or report
required under section one hundred twenty-seven-A, in respect of a
change or correction of sales and compensating use tax liability,
relating to the purchase or use of items for which a sales or
compensating use tax credit against the tax imposed by this title was
claimed.
(2) Extension by agreement.--Where, before the expiration of the time
prescribed in this section for the assessment of tax, both the director
of finance and the taxpayer have consented in writing to its assessment
after such time, the tax may be assessed at any time prior to the
expiration of the period agreed upon. The period so agreed upon may be
extended by subsequent agreements in writing made before the expiration
of the period previously agreed upon.
(3) Report of changed or corrected federal income. If the taxpayer
shall, pursuant to section one hundred twenty-seven, report a change or
correction or file an amended return increasing or decreasing his
federal taxable income or report the execution of a notice of waiver and
the changes and corrections on which it is based, or a change or
correction which is treated in the same manner as if it were a
deficiency for federal income tax purposes, the assessment (if not
deemed to have been made upon the filing of the report or amended
return) may be made at any time within two years after such report or
amended return was filed. The amount of such assessment of tax shall not
exceed the amount of the increase in city tax attributable to such
federal change or correction. The provisions of this paragraph shall not
affect the time within which or the amount for which an assessment may
otherwise be made.
(4) Deficiency attributable to net operating loss carryback.--If a
deficiency is attributable to the application to the taxpayer of a net
operating loss carryback, it may be assessed at any time that a
deficiency for the taxable year of the loss may be assessed.
(5) Recovery of erroneous refund.--An erroneous refund shall be
considered an underpayment of tax on the date made, and an assessment of
a deficiency arising out of an erroneous refund may be made at any time
within two years from the making of the refund, except that the
assessment may be made within five years from the making of the refund
if it appears that any part of the refund was induced by fraud or
misrepresentation of a material fact.
(6) Request for prompt assessment.--If a return is required for a
decedent or for his estate during the period of administration, the tax
shall be assessed within eighteen months after written request therefor
(made after the return is filed) by the executor, administrator or other
person representing the estate of such decedent, but not more than three
years after the return was filed, except as otherwise provided in this
subdivision and subdivision (d).
(7) Report on use of certain property.--Under the circumstances
described in paragraph two of subdivision (b) of section one hundred
eight, the tax may be assessed within three years after the filing of a
return reporting that property has been used for purposes other than
research and development to a greater extent than originally reported.
(8) Report concerning waste treatment facility.--Under the
circumstances described in paragraph (9) of section one hundred six, the
tax may be assessed within three years after the filing of the return
containing the information required by such paragraph.
(9) Report of change or corrected sales and compensating use tax
liability.--If the taxpayer files a report or amended return or report
required under section one hundred twenty-seven-A, in respect of a
change or correction of sales and compensating use tax liability, the
assessment (if not deemed to have been made upon the filing of the
report) may be made at any time within two years after such report or
amended return or report was filed. The amount of such assessment of tax
shall not exceed the amount of the increase in city tax attributable to
such state change or correction. The provisions of this paragraph shall
not affect the time within which or the amount for which an assessment
may otherwise be made.
(d) Omission of income on return.--The tax may be assessed at any time
within six years after the return was filed if (1) a taxpayer omits from
his city unincorporated business gross income an amount properly
includible therein which is in excess of twenty-five per centum of the
amount of city unincorporated business gross income stated in the
return, or (2) an estate or trust omits income from its return in an
amount in excess of twenty-five per cent of its income determined as if
it were an individual.
For purposes of this subdivision there shall not be taken into account
any amount which is omitted in the return if such amount is disclosed in
the return, or in a statement attached to the return, in a manner
adequate to apprise the director of finance of the nature and amount of
such item.
(e) Suspension of running of period of limitation.--The running of the
period of limitations on assessment or collection of tax or other amount
(or of a transferee's liability) shall, after the mailing of a notice of
deficiency, be suspended for the period during which the director of
finance is prohibited under subdivision (c) of section one hundred
twenty-nine from making the assessment or from collecting by levy.
§ 132. Interest on underpayment. (a) General.--If any amount of income
tax is not paid on or before the last date prescribed in this title for
payment, interest on such amount at the rate set by the commissioner of
finance pursuant to section one hundred forty-five, or, if no rate is
set, at the rate of six percentum per annum shall be paid for the period
from such last date to the date paid, whether or not any extension of
time for payment was granted. Interest under this subdivision shall not
be paid if the amount thereof is less than one dollar.
(b) Exception as to estimated tax.--This section shall not apply to
any failure to pay estimated tax under section one hundred sixteen.
(c) Exception for mathematical error.--No interest shall be imposed on
any underpayment of tax due solely to mathematical error if the taxpayer
files a return within the time prescribed in this title (including any
extension of time) and pays the amount of underpayment within three
months after the due date of such return, as it may be extended.
(e) Suspension of interest on deficiencies.--If a waiver of
restrictions on assessment of a deficiency has been filed by the
taxpayer, and if notice and demand by the director of finance for
payment of such deficiency is not made within thirty days after the
filing of such waiver, interest shall not be imposed on such deficiency
for the period beginning immediately after such thirtieth day and ending
with the date of notice and demand.
(f) Tax reduced by carryback.--If the amount of tax for any taxable
year is reduced by reason of a carryback of a net operating loss, such
reduction in tax shall not affect the computation of interest under this
section for the period ending with the filing date for the taxable year
in which the net operating loss arises. Such filing date shall be
determined without regard to extensions of time to file.
(g) Interest treated as tax.--Interest under this section shall be
paid upon notice and demand and shall be assessed, collected and paid in
the same manner as income tax. Any reference in this title to the tax
imposed by this title shall be deemed also to refer to interest imposed
by this section on such tax.
(h) Interest on penalties or additions to tax.--Interest shall be
imposed under subdivision (a) in respect of any assessable penalty or
addition to tax only if such assessable penalty or addition to tax is
not paid within ten days from the date of the notice and demand therefor
under subdivision (b) of section one hundred forty, and in such case
interest shall be imposed only for the period from such date of the
notice and demand to the date of payment.
(i) Payment prior to notice of deficiency.--If, prior to the mailing
to the taxpayer of a notice of deficiency under subdivision (b) of
section one hundred twenty-nine, the director of finance mails to the
taxpayer a notice of proposed increase of tax and within thirty days
after the date of the notice of proposed increase the taxpayer pays all
amounts shown on the notice to be due to the director of finance, no
interest under this section on the amount so paid shall be imposed for
the period after the date of such notice of proposed increase.
(j) Payment within ninety days after notice of deficiency.-- If a
notice of deficiency under section one hundred twenty-nine is mailed to
the taxpayer, and the total amount specified in such notice is paid on
or before the ninetieth day after the date of mailing, interest under
this section shall not be imposed for the period after the date of the
notice.
(k) Payment within ten days after notice and demand.--If notice and
demand is made for payment of any amount under subdivision (b) of
section one hundred forty, and if such amount is paid within ten days
after the date of such notice and demand, interest under this section on
the amount so paid shall not be imposed for the period after the date of
such notice and demand.
(l) Limitation on assessment and collection.--Interest prescribed
under this section may be assessed and collected at any time during the
period within which the tax or other amount to which such interest
relates may be assessed and collected, respectively.
(m) Interest on erroneous refund.--Any portion of tax or other amount
which has been erroneously refunded, and which is recoverable by the
commissioner of finance, shall bear interest at the rate set by the
commissioner of finance pursuant to section one hundred forty-five, or,
if no rate is set, at the rate of six per centum per annum from the date
of the payment of the refund, but only if it appears that any part of
the refund was induced by fraud or a misrepresentation of a material
fact.
(n) Satisfaction by credits.--If any portion of a tax is satisfied by
credit of an overpayment, then no interest shall be imposed under this
section on the portion of the tax so satisfied for any period during
which, if the credit had not been made, interest would have been
allowable with respect to such overpayment.
§ 133. Additions to tax and civil penalties. (a) Failure to file tax
return.--In case of failure to file a tax return under this title on or
before the prescribed date (determined with regard to any extension of
time for filing), unless it is shown that such failure is due to
reasonable cause and not due to willful neglect, there shall be added to
the amount required to be shown as tax on such return five per cent of
the amount of such tax if the failure is for not more than one month,
with an additional five per cent for each additional month or fraction
thereof during which such failure continues, not exceeding twenty-five
per cent in the aggregate. For this purpose, the amount of tax required
to be shown on the tax return shall be reduced by the amount of any part
of the tax which is paid on or before the date prescribed for payment of
the tax and by the amount of any credit against the tax which may be
claimed upon the return.
(b) Deficiency due to negligence.--If any part of a deficiency is due
to negligence or intentional disregard of this title or rules or
regulations hereunder (but without intent to defraud), there shall be
added to the tax an amount equal to five per cent of the deficiency.
(c) Failure to file declaration or underpayment of estimated tax.--If
any taxpayer fails to file a declaration of estimated tax or fails to
pay all or any part of an installment of estimated tax, he shall be
deemed to have made an underpayment of estimated tax. There shall be
added to the tax for the taxable year an amount at the rate set by the
commissioner of finance pursuant to section one hundred forty-five, or,
if no rate is set, at the rate of six per centum per annum upon the
amount of the underpayment for the period of the underpayment but not
beyond the fifteenth day of the fourth month following the close of the
taxable year. The amount of underpayment shall be the excess of the
amount of the installment which would be required to be paid if the
estimated tax were equal to ninety per cent of the tax shown on the
return for the taxable year (or if no return was filed, ninety percent
of the tax for such year) over the amount, if any, of the installment
paid on or before the last day prescribed for such payment. No
underpayment shall be deemed to exist with respect to a declaration or
installment otherwise due on or after the taxpayer's death. In any case
in which there would be no underpayment if this subdivision were applied
by substituting "eighty percent" for "ninety percent" where it appears
in the second preceding sentence, the addition to tax under this
subdivision shall be equal to seventy-five percent of the amount
otherwise determined under this subdivision.
(d) Exception to addition for underpayment of estimated tax.--The
addition to tax under subdivision (c) with respect to any underpayment
of any installment shall not be imposed of the total amount of all
payments of estimated tax made on or before the last date prescribed for
the payment of such installment equals or exceeds whichever of the
following is the lesser--
(1) The amount which would have been required to be paid on or before
such date if the estimated tax were whichever of the following is the
least--
(A) The tax shown on the return of the taxpayer for the preceding
taxable year, if a return showing a liability for tax was filed by the
taxpayer for the preceding taxable year and such preceding year was a
taxable year of twelve months, or
(B) An amount equal to the tax computed, at the rates applicable to
the taxable year, but otherwise on the basis of the facts shown on his
return for, and the law applicable to, the preceding taxable year, or
(C) An amount equal to ninety per cent of the tax for the taxable year
computed by placing on an annualized basis the unincorporated business
taxable income for the months in the taxable year ending before the
month in which the installment is required to be paid. For purposes of
this subparagraph, the unincorporated business taxable income shall be
placed on an annualized basis by--
(i) multiplying by twelve (or, in the case of a taxable year of less
than twelve months, the number of months in the taxable year) the
unincorporated business taxable income for the months in the taxable
year ending before the month in which the installment is required to be
paid, and
(ii) dividing the resulting amount by the number of months in the
taxable year ending before the month in which such installment date
falls, or
(D) (i) If the base period percentage for any six consecutive months
of the taxable year equals or exceeds seventy percent, an amount equal
to ninety percent of the tax determined in the following manner--
(I) take the unincorporated business taxable income for all months
during the taxable year preceding the filing month,
(II) divide such amount by the base period percentage for all months
during the taxable year preceding the filing month,
(III) determine the tax on the amounts determined under subclause
(II), and
(IV) multiply the tax determined under subclause (III) by the base
period percentage for the filing month and all months during the taxable
year preceding the filing month.
(ii) For purposes of clause (i)--
(I) the base period percentage for any period of months shall be the
average percent which the unincorporated business taxable income for the
corresponding months in each of the three preceding years bears to the
unincorporated business taxable income for the three preceding taxable
years. The commissioner of finance may by regulations provide for the
determination of the base period percentage in the case of new
unincorporated businesses and other similar circumstances, and
(II) the term "filing month" means the month in which the installment
is required to be paid; or
(2) An amount equal to ninety percent of the tax computed, at the
rates applicable to the taxable year, on the basis of the actual
unincorporated business taxable income for the months in the taxable
year ending before the month in which the installment is required to be
paid.
(e) Allocation of unincorporated business tax.--(1) Except as provided
in paragraph two hereof, subparagraphs (A) and (B) of paragraph one of
subdivision (d) of this section shall not apply in the case of any
taxpayer which had unincorporated business taxable income, or the
portion thereof allocated within the city, of one million dollars or
more for any taxable year during the three taxable years immediately
preceding the taxable year involved.
(2) The amount treated as the estimated tax under subparagraphs (A)
and (B) of paragraph one of subdivision (d) of this section shall in no
event be less than seventy-five percent of the tax shown on the return
for the taxable year beginning in nineteen hundred eighty-three or, if
no return was filed, seventy-five percent of the tax for such year.
(f) Deficiency due to fraud.--If any part of a deficiency is due to
fraud, there shall be added to the tax an amount equal to fifty per cent
of the deficiency. This amount shall be in lieu of any other addition to
tax imposed by subdivision (a) or (b).
(g) Additional penalty.--Any taxpayer who with fraudulent intent shall
fail to pay any tax, or to make, render, sign or certify any return or
declaration of estimated tax, or to supply any information within the
time required by or under this title, shall be liable to a penalty of
not more than one thousand dollars, in addition to any other amounts
required under this title, to be imposed assessed and collected by the
director of finance. The director of finance shall have the power, in
his discretion, to waive, reduce or compromise any penalty under this
subdivision.
(h) Additions treated as tax.--The additions to tax and penalties
provided by this section shall be paid upon notice and demand and shall
be assessed, collected and paid in the same manner as taxes, and any
reference in this title to income tax or tax imposed by this title,
shall be deemed also to refer to the additions to tax and penalties
provided by this section. For purposes of section one hundred
twenty-nine, this subdivision shall not apply to--
(1) any addition to tax under subdivision (a) except as to that
portion attributable to a deficiency;
(2) any addition to tax under subdivision (c); and
(3) any additional penalty under subdivision (g).
(i) Determination of deficiency.--For purposes of subdivisions (b) and
(f), the amount shown as the tax by the taxpayer upon his return shall
be taken into account in determining the amount of the deficiency only
if such return was filed on or before the last day prescribed for the
filing of such return, determined with regard to any extension of time
for such filing.
(j) Substantial understatement of liability.--If there is a
substantial understatement of tax for any taxable year, there shall be
added to the tax an amount equal to ten percent of the amount of any
underpayment attributable to such understatement. For purposes of this
subdivision, there is a substantial understatement of tax for any
taxable year if the amount of the understatement for the taxable year
exceeds the greater of ten percent of the tax required to be shown on
the return for the taxable year, or five thousand dollars. For purposes
of the preceding sentence, the term "understatement" means the excess of
the amount of the tax required to be shown on the return for the taxable
year, over the amount of the tax imposed which is shown on the return.
The amount of the understatement under the preceding sentence shall be
reduced by that portion of the understatement which is attributable to
the tax treatment of any item by the taxpayer if there is or was
substantial authority for such treatment, or any item with respect to
which the relevant facts affecting the item's tax treatment are
adequately disclosed in the return or in a statement attached to the
return. The commissioner of finance may waive all or any part of the
addition to tax provided by this subdivision on a showing by the
taxpayer that there was reasonable cause for the understatement (or part
thereof) and that the taxpayer acted in good faith.
§ 134. Overpayment. (a) General.--The director of finance, within the
applicable period of limitations, may credit an overpayment of income
tax and interest on such overpayment against any liability in respect of
any tax imposed by this title or by titles on the person who made the
overpayment, and the balance shall be refunded.
(b) Credits against estimated tax.--The director of finance may
prescribe regulations providing for the crediting against the estimated
income tax for any taxable year of the amount determined to be an
overpayment of the income tax for a preceding taxable year. If any
overpayment of income tax is so claimed as a credit against estimated
tax for the succeeding taxable year, such amount shall be considered as
a payment of the income tax for the succeeding taxable year (whether or
not claimed as a credit in the declaration of estimated tax for such
succeeding taxable year), and no claim for credit or refund of such
overpayment shall be allowed for the taxable year for which the
overpayment arises.
(c) Rule where no tax liability.--If there is no tax liability for a
period in respect of which an amount is paid as income tax, such amount
shall be considered an overpayment.
(d) Assessment and collection after limitation period.--If any amount
of income tax is assessed or collected after the expiration of the
period of limitations properly applicable thereto, such amount shall be
considered an overpayment.
§ 135. Limitations on credit or refund. (a) General.--Claim for credit
or refund of an overpayment of income tax shall be filed by the taxpayer
within three years from the time the return was filed or two years from
the time the tax was paid, whichever of such periods expires the later,
or if no return was filed, within two years from the time the tax was
paid. If the claim is filed within the three year period, the amount of
the credit or refund shall not exceed the portion of the tax paid within
the three years immediately preceding the filing of the claim plus the
period of any extension of time for filing the return. If the claim is
not filed within the three year period, but is filed within the two year
period, the amount of the credit or refund shall not exceed the portion
of the tax paid during the two years immediately preceding the filing of
the claim. Except as otherwise provided in this section, if no claim is
filed, the amount of a credit or refund shall not exceed the amount
which would be allowable if a claim had been filed on the date the
credit or refund is allowed.
(b) Extension of time by agreement.--If an agreement under the
provisions of paragraph two of subdivision (c) of section one hundred
thirty-one (extending the period for assessment of income tax) is made
within the period prescribed in subdivision (a) for the filing of a
claim for credit or refund, the period for filing a claim for credit or
refund, or for making credit or refund if no claim is filed, shall not
expire prior to six months after the expiration of the period within
which an assessment may be made pursuant to the agreement or any
extension thereof. The amount of such credit or refund shall not exceed
the portion of the tax paid after the execution of the agreement and
before the filing of the claim or the making of the credit or refund, as
the case may be, plus the portion of the tax paid within the period
which would be applicable under subdivision (a) if a claim had been
filed on the date the agreement was executed.
(c) Notice of change or correction of federal taxable income.--If a
taxpayer is required by section one hundred twenty-seven to report a
change or correction in federal taxable income reported on his federal
income tax return, or to report a change or correction which is treated
in the same manner as if it were an overpayment for federal income tax
purposes, or to file an amended return with the director of finance,
claim for credit or refund of any resulting overpayment of tax shall be
filed by the taxpayer within two years from the time the notice of such
change or correction or such amended return was required to be filed
with the director of finance. If the report or amended return required
by section one hundred twenty-seven is not filed within the ninety day
period therein specified, interest or any resulting refund or credit
shall cease to accrue after such ninetieth day. The amount of such
credit or refund shall not exceed the amount of the reduction in tax
attributable to such federal change, correction or items amended on the
taxpayer's amended federal income tax return. This subdivision shall
not affect the time within which or the amount for which a claim for
credit or refund my be filed apart from this subdivision.
(d) Overpayment attributable to net operating loss carryback.--A claim
for credit or refund of so much of an overpayment as is attributable to
the application to the taxpayer of a net operating loss carryback shall
be filed within three years from the time the return was due for the
taxable year of the loss, or within the period prescribed in subdivision
(b) in respect of such taxable year, or within the period prescribed in
subdivision (c), where applicable, in respect of the taxable year to
which the net operating loss is carried back, whichever expires the
latest.
(e) Failure to file claim within prescribed period.--No credit or
refund shall be allowed or made, except as provided in subdivision (f)
of this section or subdivision (d) of section one hundred thirty-eight
after the expiration of the applicable period of limitation specified in
this title unless a claim for credit or refund is filed by the taxpayer
within such period. Any later credit shall be void and any later refund
erroneous. No period of limitations specified in any other law shall
apply to the recovery by a taxpayer of moneys paid in respect of taxes
under this title.
(f) Effect of petition to director of finance.--If a notice of
deficiency for a taxable year has been mailed to the taxpayer under
section one hundred twenty-nine and if the taxpayer files a timely
petition with the director of finance under section one hundred
thirty-seven, he may determine that the taxpayer has made an overpayment
for such year (whether or not it also determines a deficiency for such
year). No separate claim for credit or refund for such year shall be
filed, and no credit or refund for such year shall be allowed or made,
except--
(1) as to overpayments determined by a decision of the director of
finance which has become final;
(2) as to any amount collected in excess of an amount computed in
accordance with the decision of the director of finance which has become
final;
(3) as to any amount collected after the period of limitation upon the
making of levy for collection has expired; and
(4) as to any amount claimed as a result of a change or correction
described in subdivision (c).
(g) Limit on amount of credit or refund.-- The amount of overpayment
determined under subdivision (f) shall, when the decision of the
director of finance has become final, be credited or refunded in
accordance with subdivision (a) of section one hundred thirty-four and
shall not exceed the amount of tax which the director of finance
determines as part of his decision was paid--
(1) after the mailing of the notice of deficiency, or
(2) within the period which would be applicable under subdivisions
(a), (b) or (c), if on the date of the mailing of the notice of
deficiency a claim had been filed (whether or not filed) stating the
grounds upon which the director of finance finds that there is an
overpayment.
(h) Early return.--For purposes of this section, any return filed
before the last day prescribed for the filing thereof shall be
considered as filed on such last day, determined without regard to any
extension of time granted the taxpayer.
(i) Prepaid income tax.--For purposes of this section, any tax paid by
the taxpayer before the last day prescribed for its payment and any
amount paid by the taxpayer as estimated income tax for a taxable year
shall be deemed to have been paid by him on the fifteenth day of the
fourth month following the close of his taxable year with respect to
which such amount constitutes a credit or payment.
(j) Cross reference.--For provision barring refund of overpayment
credited against tax of a succeeding year, see subdivision (d) of
section one hundred thirty-four.
(k) Notice of change or correction of sales and compensating use tax
liability.--If a taxpayer is required by section one hundred
twenty-seven-A to file a report or amended return in respect of a change
or correction of his sales and compensating use tax liability, claim for
credit or refund of any resulting overpayment of tax shall be filed by
the taxpayer within two years from the time such report or amended
return was required to be filed with the commissioner of finance. If the
report or amended return required by section one hundred twenty-seven-A
is not filed within the ninety day period therein specified, interest on
any resulting refund or credit shall cease to accrue after such
ninetieth day. The amount of such credit or refund shall be computed
without change of the allocation of income or capital upon which the
taxpayer's return (or any additional assessment) was based, and shall
not exceed the amount of the reduction in tax attributable to such
change or correction of sales and compensating use tax liability. This
subdivision shall not affect the time within which or the amount for
which a claim for credit or refund may be filed apart from this
subdivision.
§ 136. Interest on overpayment. (a) General.--Notwithstanding the
provisions of section three-a of the general municipal law, interest
shall be allowed and paid as follows at the rate set by the commissioner
of finance pursuant to section one hundred forty-five, or, if no rate is
set, at the rate of six percent per annum upon any overpayment in
respect of the tax imposed by this title:
(1) from the date of the overpayment to the due date of an amount
against which a credit is taken; or
(2) from the date of the overpayment to a date (to be determined by
the commissioner of finance), preceding the date of a refund check by
not more than thirty days, whether or not such refund check is accepted
by the taxpayer after tender of such check to the taxpayer. The
acceptance of such check shall be without prejudice to any right of the
taxpayer to claim any additional overpayment and interest thereon.
(3) late returns. Notwithstanding paragraph one or two of this
subdivision, in the case of a return of tax which is filed after the
last date prescribed for filing such return (determined with regard to
extensions), no interest shall be allowed or paid for any day before the
date on which the return is filed.
No interest shall be allowed or paid if the amount thereof is less
than one dollar.
(b) Advance payment of tax and payment of estimated tax.--The
provisions of subdivisions (h) and (i) of section one hundred
thirty-five applicable in determining the date of payment of tax for
purposes of determining the period of limitations on credit or refund,
shall be applicable in determining the date of payment for purposes of
this section.
(c) Income tax refund within three months of due date of tax.--If any
overpayment of tax imposed by this title is refunded within three months
after the last date prescribed (or permitted by extension of time) for
filing the return of such tax or within three months after the return
was filed, whichever is later, no interest shall be allowed under this
section on such overpayment.
(d) Refund of income tax caused by carryback.--For purposes of this
section, if any overpayment of tax imposed by this title results from a
carryback of a net operating loss, such overpayment shall be deemed not
to have been made prior to the filing date for the taxable year in which
such net operating loss arises. Such filing date shall be determined
without regard to extensions of time to file. For purposes of
subdivision (c) of this section any overpayment described herein shall
be treated as an overpayment for the loss year and such subdivision
shall be applied with respect to such overpayment by treating the return
for the loss year as not filed before claim for such overpayment is
filed. The term "loss year" means the taxable year in which such loss
arises.
(e) No interest until return in processible form.--
(1) For purposes of subdivisions (a) and (c) of this section, a return
shall not be treated as filed until it is filed in processible form.
(2) For purposes of paragraph one of this subdivision, a return is in
a processible form if--
(A) such return is filed on a permitted form, and
(B) such return contains--
(i) the taxpayer's name, address, and identifying number and the
required signatures, and
(ii) sufficient required information (whether on the return or on
required attachments) to permit the mathematical verification of tax
liability shown on the return.
(f) Cross-reference.--For provision terminating interest after failure
to file notice of federal change under section one hundred twenty-seven,
see subdivision (c) of section one hundred thirty-five.
§ 137. Petition to director of finance. (a) General.--The form of a
petition to the director of finance, and further proceedings before the
director of finance in any case initiated by the filing of a petition,
shall be governed by such rules as the director of finance shall
prescribe. No petition shall be denied in whole or in part without
opportunity for a hearing on reasonable prior notice. Such hearing shall
be conducted by the director of finance, or by a hearing officer
designated by the director of finance to take evidence and report to the
director of finance. The director of finance shall decide the case as
quickly as practicable. Notice of the decision shall be mailed promptly
to the taxpayer by certified or registered mail at his last known
address, and such notice shall set forth the director's findings of fact
and a brief statement of the grounds of decision in each case decided in
whole or in part adversely to the taxpayer.
(b) Petition for redetermination of a deficiency.--Within ninety days,
or one hundred fifty days if the notice is addressed to a person outside
of the United States, after the mailing of the notice of deficiency
authorized by section one hundred twenty-nine, the taxpayer may file a
petition with the director of finance for a redetermination of the
deficiency. Such petition may also assert a claim for refund for the
same taxable year or years, subject to the limitations of subdivision
(g) of section one hundred thirty-five.
(c) Petition for refund.--A taxpayer may file a petition with the
director of finance for the amounts asserted in a claim for refund if--
(1) the taxpayer has filed a timely claim for refund with the director
of finance,
(2) the taxpayer has not previously filed with the director of finance
a timely petition under subdivision (b) for the same taxable year unless
the petition under this subdivision relates to a separate claim for
credit or refund properly filed under subdivision (f) of section one
hundred thirty-five, and
(3) either (A) six months have expired since the claim was filed, or
(B) the director of finance has mailed to the taxpayer, by registered or
certified mail, a notice of disallowance of such claim in whole or in
part. No petition under this subdivision shall be filed more than two
years after the date of mailing of a notice of disallowance, unless
prior to the expiration of such two year period it has been extended by
written agreement between the taxpayer and the director of finance. If
a taxpayer files a written waiver of the requirement that he be mailed a
notice of disallowance, the two year period prescribed by this
subdivision for filing a petition for refund shall begin on the date
such waiver is filed.
(d) Assertion of deficiency after filing petition.--(1) Petition for
redetermination of deficiency.--If a taxpayer files with the director of
finance a petition for redetermination of a deficiency, the director of
finance shall have power to determine a greater deficiency than asserted
in the notice of deficiency and to determine if there should be assessed
any addition to tax or penalty provided in section one hundred
thirty-three, if claim therefor is asserted at or before the hearing
under the rules of the director of finance.
(2) Petition for refund.--If the taxpayer files with the director of
finance a petition for credit or refund for a taxable year, the director
of finance may
(A) determine a deficiency for such year as to any amount of
deficiency asserted at or before the hearing under rules of the director
of finance, and within the period in which an assessment would be timely
under section one hundred thirty-one, or
(B) deny so much of the amount for which credit or refund is sought in
the petition, as is offset by other issues pertaining to the same
taxable year which are asserted at or before the hearing under rules of
the director of finance.
(3) Opportunity to respond.--A taxpayer shall be given a reasonable
opportunity to respond to any matters asserted by the director of
finance under this subdivision.
(4) Restriction on further notices of deficiency.--If the taxpayer
files a petition with the director of finance under this section, no
notice of deficiency under section one hundred twenty-nine may
thereafter be issued by the director of finance for the same taxable
year, except in case of fraud or with respect to a change or correction
in federal taxable income required to be reported under section one
hundred twenty-seven or with respect to a state change or correction of
sales and compensating use tax liability required to be reported under
section one hundred twenty-seven-A.
(e) Burden of proof.--In any case before the director of finance under
this title, the burden of proof shall be upon the petitioner except for
the following issues, as to which the burden of proof shall be upon the
director of finance:
(1) whether the petitioner has been guilty of fraud with intent to
evade tax;
(2) whether the petitioner is liable as the transferee of property of
a taxpayer, but not to show that the taxpayer was liable for the tax;
and
(3) whether the petitioner is liable for any increase in a deficiency
where such increase is asserted initially after a notice of deficiency
was mailed and a petition under this section filed, unless such increase
in deficiency is the result of a change or correction of federal taxable
income required to be reported under section one hundred twenty-seven,
and of which change or correction the director of finance had no notice
at the time he mailed the notice of deficiency or unless such increase
in deficiency is the result of a change or correction of sales and
compensating use tax liability required to be reported under section one
hundred twenty-seven-A, and of which change or correction the
commissioner of finance had no notice at the time he mailed the notice
of deficiency.
(f) Evidence of related federal or state determination.--Evidence of a
federal or state determination relating to issues raised in a case
before the director of finance under this section shall be admissible,
under rules established by the director of finance.
(g) Jurisdiction over other years.--The director of finance shall
consider such facts with relation to the taxes for other years as may be
necessary correctly to determine the tax for the taxable year, but in so
doing shall have no jurisdiction to determine whether or not the tax for
any other year has been overpaid or underpaid.
§ 138. Review of director's decision. (a) General.--A decision of the
director of finance shall be subject to judicial review at the instance
of any taxpayer affected thereby in the manner provided by law for the
review of a final decision or action of administrative agencies of the
city. An application by a taxpayer for such review must be made within
four months after notice of the decision is sent by certified or
registered mail to the taxpayer.
(b) Judicial review exclusive remedy of taxpayer.--The review of a
decision of the director of finance provided by this section shall be
the exclusive remedy available to any taxpayer for the judicial
determination of the liability of the taxpayer for the taxes imposed by
this title.
(c) Assessment pending review; review bond.--Irrespective of any
restrictions on the assessment and collection of deficiencies, the
director of finance may assess a deficiency after the expiration of the
period specified in subdivision (a), notwithstanding that an application
for judicial review in respect of such deficiency has been duly made by
the taxpayer, unless the taxpayer, at or before the time his application
for review is made, has paid the deficiency, has deposited with the
director of finance the amount of the deficiency, or has filed with the
director of finance a bond (which may be a jeopardy bond under
subdivision (h) of section one hundred forty-two) in the amount of the
portion of the deficiency (including interest and other amounts) in
respect of which the application for review is made and all costs and
charges which may accrue against him in the prosecution of the
proceeding, including costs of all appeals, and with surety approved by
a justice of the supreme court of the state of New York, conditioned
upon the payment of the deficiency (including interest and other
amounts) as finally determined and such costs and charges. If as a
result of a waiver of the restrictions on the assessment and collection
of a deficiency any part of the amount determined by the director of
finance is paid after the filing of the review bond, such bond shall, at
the request of the taxpayer, be proportionately reduced.
(d) Credit, refund or abatement after review.--If the amount of a
deficiency determined by the director of finance is disallowed in whole
or in part by the court of review, the amount so disallowed shall be
credited or refunded to the taxpayer, without the making of claim
therefor, or, if payment has not been made, shall be abated.
(e) Date of finality of director's decision.--A decision of the
director of finance shall become final upon the expiration of the period
specified in subdivision (a) for making an application for review, if no
such application has been duly made within such time, or if such
application has been duly made, upon expiration of the time for all
further judicial review, or upon the rendering by the director of
finance of a decision in accordance with the mandate of the court on
review. Notwithstanding the foregoing, for the purpose of making an
application for review, the decision of the director of finance shall be
deemed final on the date the notice of decision is sent by certified or
registered mail to the taxpayer.
§ 139. Mailing rules; holidays. (a) Timely mailing.--If any claim,
statement, notice, petition, or other document (including to the extent
authorized by the director of finance, a return or a declaration of
estimated tax) required to be filed within a prescribed period or on or
before a prescribed date under authority of any provision of this title
is, after such period or such date, delivered by the United States mail
to the director of finance, bureau, office, officer or person with which
or with whom such document is required to be filed, the date of the
United States postmark stamped on the envelope shall be deemed to be the
date of delivery. This subdivision shall apply only if the postmark
date falls within the prescribed period or on or before the prescribed
date for the filing of such document, determine with regard to any
extension granted for such filing, and only if such document was
deposited in the mail, postage prepaid, properly addressed to the
director of finance, bureau, office, officer or person with which or
with whom the document is required to be filed. If any document is sent
by United States registered mail, such registration shall be prima facie
evidence that such document was delivered to the director of finance,
bureau, office, officer or person to which or to whom addressed. To the
extent that the director of finance shall prescribe by regulation,
certified mail may be used in lieu of registered mail under this
section. This subdivision shall apply in the case of postmarks not made
by the United States Post Office only if and to the extent provided by
regulations of the director of finance.
(b) Last known address.--For purposes of this title, a taxpayer's last
known address shall be the address given in the last return filed by
him, unless subsequently to the filing of such return the taxpayer shall
have notified the director of finance of a change of address.
(c) Last day a Saturday, Sunday or legal holiday.--When the last day
prescribed under authority of this title (including any extension of
time) for performing any act falls on Saturday, Sunday, or a legal
holiday in the state of New York, the performance of such act shall be
considered timely if it is performed on the next succeeding day which is
not a Saturday, Sunday or a legal holiday.
§ 140. Collection, levy and liens. (a) Collection procedures.--The
taxes imposed by this title shall be collected by the director of
finance, and he may establish the mode or time for the collection of any
amount due it under this title if not otherwise specified. The director
of finance shall, upon request, give a receipt for any sum collected
under this title. The director of finance may authorize banks or trust
companies which are depositories or financial agents of the city to
receive and give a receipt for any tax imposed under this title in such
manner, at such times, and under such conditions as the director of
finance may prescribe; and the director of finance shall prescribe the
manner, times and conditions under which the receipt of such tax by such
banks and trust companies is to be treated as payment of such tax to the
director of finance.
(b) Notice and demand for tax.--The director of finance shall as soon
as practicable give notice to each person liable for any amount of tax,
addition to tax, penalty or interest, which has been assessed but
remains unpaid, stating the amount and demanding payment thereof. Such
notice shall be left at the dwelling or usual place of business of such
person or shall be sent by mail to such person's last known address.
Except where the director of finance determines that collection would be
jeopardized by delay, if any tax is assessed prior to the last date
(including any date fixed by extension) prescribed for payment of such
tax, payment of such tax shall not be demanded until after such date.
(c) Issuance of warrant after notice and demand.--If any person liable
under this title for the payment of any tax, addition to tax, penalty or
interest neglects or refuses to pay the same within the ten days after
notice and demand therefor is given to such person under subdivision
(b), the director of finance may within six years after the date of such
assessment issue a warrant under his official seal directed to the
sheriff of any county of the state, or to any officer or employee of the
department of finance, commanding him to levy upon and sell such
person's real and personal property for the payment of the amount
assessed, with the cost of executing the warrant, and to return such
warrant to the director of finance and pay to him the money collected by
virtue thereof within sixty days after the receipt of the warrant. If
the director of finance finds that the collection of the tax or other
amount is in jeopardy, notice and demand for immediate payment of such
tax may be made by the director of finance and upon failure or refusal
to pay such tax or other amount the director of finance may issue a
warrant without regard to the ten-day period provided in this
subdivision.
(d) Copy of warrant to be filed and lien to be created.--Any sheriff
or officer or employee who receives a warrant under subdivision (c)
shall within five days thereafter file a copy with the clerk of the
appropriate county. The clerk shall thereupon enter in the judgment
docket, in the column for judgment debtors, the name of the taxpayer
mentioned in the warrant, and in appropriate columns the tax or other
amounts for which the warrant is issued and the date when such copy is
filed; and such amount shall thereupon be a binding lien upon the real,
personal and other property of the taxpayer.
(e) Judgment.--When a warrant has been filed with the county clerk the
director of finance shall, on behalf of the city, be deemed to have
obtained judgment against the taxpayer for the tax or other amounts.
(f) Execution.--The sheriff or officer or employee shall thereupon
proceed upon the judgment in all respects, with like effect, and in the
same manner prescribed by law in respect to executions issued against
property upon judgments of a court of record, and a sheriff shall be
entitled to the same fees for his services in executing the warrant, to
be collected in the same manner. An officer or employee of the
department of finance may proceed in any county or counties of this
state and shall have all the powers of execution conferred by law upon
sheriffs, but shall be entitled to no fee or compensation in excess of
actual expenses paid in connection with the execution of the warrant.
(g) Taxpayer not a resident of this state.--Where a notice and demand
under subdivision (b) shall have been given to a taxpayer who is not
then a resident of this state, and it appears to the director of finance
that it is not practicable to find in this state property of the
taxpayer sufficient to pay the entire balance of tax or other amount
owing by such taxpayer who is not then a resident of this state, the
director of finance may, in accordance with subdivision (c), issue a
warrant directed to an officer or employee of the department of finance,
a copy of which warrant shall be mailed by certified or registered mail
to the taxpayer at his last known address, subject to the rules for
mailing provided in subdivision (a) of section one hundred twenty-nine.
Such warrant shall command the officer or employee to proceed in New
York county, and he shall, within five days after receipt of the
warrant, file the warrant and obtain a judgment in accordance with this
section. Thereupon the director of finance may authorize the institution
of any action or proceeding to collect or enforce the judgment in any
place and by any procedure that a civil judgment of the supreme court of
the state of New York could be collected or enforced. The director of
finance may also, in his discretion, designate agents or retain counsel
for the purpose of collecting, outside the state of New York, any unpaid
taxes, additions to tax, penalties or interest which have been assessed
under this title against taxpayers who are not residents of this state,
may fix the compensation of such agents and counsel to be paid out of
money appropriated or otherwise lawfully available for payment thereof,
and may require of them bonds or other security for the faithful
performance of their duties, in such form and in such amount as the
director of finance shall deem proper and sufficient.
(h) Action by city for recovery of taxes.--Action may be brought by
the corporation counsel at the instance of the director of finance as
agent and trustee for the city to recover the amount of any unpaid
taxes, additions to tax, penalties or interest which have been assessed
under this title within six years prior to the date the action is
commenced.
(i) Release of lien.--The director of finance, if he finds that the
interests of the city will not thereby be jeopardized, and upon such
conditions as he may require, may release any property from the lien of
any warrant for unpaid taxes, additions to tax, penalties and interest
filed pursuant to this section, and such release may be recorded in the
office of any recording officer in which such warrant has been filed.
§ 141. Transferees. (a) General.--The liability, at law or in equity,
of a transferee of property of a taxpayer for any tax, additions to tax,
penalty or interest due the director of finance under this title, shall
be assessed, paid, and collected in the same manner and subject to the
same provisions and limitations as in the case of the tax to which the
liability relates, except that the period of limitations for assessment
against the transferee shall be extended by one year for each successive
transfer, in order, from the original taxpayer to the transferee
involved, but not by more than three years in the aggregate. The term
"transferee" includes donee, heir, legatee, devisee and distributee.
(b) Exceptions.--(1) If before the expiration of the period of
limitations for assessment of liability of the transferee, a claim has
been filed by the director of finance in any court against the original
taxpayer or the last preceding transferee based upon the liability of
the original taxpayer, then the period of limitation for assessment of
liability of the transferee shall in no event expire prior to one year
after such claim has been finally allowed, disallowed or otherwise
disposed of.
(2) If, before the expiration of the time prescribed in subdivision
(a) or the immediately preceding paragraph of this subdivision for the
assessment of the liability, the director of finance and the transferee
have both consented in writing to its assessment after such time, the
liability may be assessed at any time prior to the expiration of the
period agreed upon. The period so agreed upon may be extended by
subsequent agreements in writing made before the expiration of the
period previously agreed upon. For the purpose of determining the period
of limitation on credit or refund to the transferee of overpayments of
tax made by such transferee or overpayments of tax made by the
transferor as to which the transferee is legally entitled to credit or
refund, such agreement and any extension thereof shall be deemed an
agreement and extension thereof referred to in subdivision (b) of
section one hundred thirty-five. If the agreement is executed after the
expiration of the period of limitation for assessment against the
original taxpayer, then in applying the limitations under subdivision
(b) of section one hundred thirty-five on the amount of the credit or
refund, the periods specified in subdivision (a) of section one hundred
thirty-five shall be increased by the period from the date of such
expiration to the date of the agreement.
(c) Deceased transferor.--If any person is deceased, the period of
limitation for assessment against him shall be the period that would be
in effect if he had lived.
(d) Evidence.--Notwithstanding the provisions of subdivision (e) of
section one hundred forty-five the director of finance shall use his
powers to make available to the transferee evidence necessary to enable
the transferee to determine the liability of the original taxpayer and
of any preceding transferees, but without undue hardship to the original
taxpayer or preceding transferee. See subdivision (e) of section one
hundred thirty-seven for rule as to burden of proof.
§ 142. Jeopardy assessment. (a) Authority for making.--If the director
of finance believes that the assessment or collection of a deficiency
will be jeopardized by delay, he shall, notwithstanding the provisions
of section one hundred twenty-nine and one hundred forty-four, and
immediately assess such deficiency (together with all interest,
penalties and additions to tax provided for by law), and notice and
demand shall be made by the director of finance for the payment thereof.
(b) Notice of deficiency.--If the jeopardy assessment is made before
any notice in respect of the tax to which the jeopardy assessment
relates has been mailed under section one hundred twenty-nine, then the
director of finance shall mail a notice under such section within sixty
days after the making of the assessment.
(c) Amount assessable before decision of director of finance.--The
jeopardy assessment may be made in respect of a deficiency greater or
less than that of which notice is mailed to the taxpayer and whether or
not the taxpayer has heretofore filed a petition with the director of
finance. The director of finance may, at any time before rendering his
decision, abate such assessment, or any unpaid portion thereof, to the
extent that he believes the assessment to be excessive in amount. The
director of finance may in his decision redetermine the entire amount of
the deficiency and of all amounts assessed at the same time in
connection therewith.
(d) Amount assessable after decision of director of finance.--If the
jeopardy assessment is made after the decision of the director of
finance is rendered, such assessment may be made only in respect of the
deficiency determined by the director of finance in his decision.
(e) Expiration of right to assess.--A jeopardy assessment may not be
made after the decision of the director of finance has become final or
after the taxpayer has made an application for review of the decision of
the director of finance.
(f) Collection of unpaid amounts.--When a petition has been filed with
the director of finance and when the amount which should have been
assessed has been determined by a decision of the director of finance
which has become final, then any unpaid portion, the collection of which
has been stayed by bond, shall be collected as part of the tax upon
notice and demand from the director of finance, and any remaining
portion of the assessment shall be abated. If the amount already
collected exceeds the amount determined as the amount which should have
been assessed, such excess shall be credited or refunded to the taxpayer
as provided in section one hundred thirty-four without the filing of
claim therefor. If the amount determined as the amount which should have
been assessed is greater than the amount actually assessed, then the
difference shall be assessed and shall be collected as part of the tax
upon notice and demand from the director of finance.
(g) Abatement if jeopardy does not exist.--The director of finance may
abate the jeopardy assessment if he finds that jeopardy does not exist.
Such abatement may not be made after a decision of the director of
finance in respect of the deficiency has been rendered or, if no
petition is filed with the director of finance, after the expiration of
the period for filing such petition. The period of limitation on the
making of assessments and levy or a proceeding for collection, in
respect of any deficiency, shall be determined as if the jeopardy
assessment so abated had not been made, except that the running of such
period shall in any event be suspended for the period from the date of
such jeopardy assessment until the expiration of the tenth day after the
day on which such jeopardy assessment is abated.
(h) Bond to stay collection.--The collection of the whole or any
amount of any jeopardy assessment may be stayed by filing with the
director of finance, within such time as may be fixed by regulation, a
bond in an amount equal to the amount as to which the stay is desired,
conditioned upon the payment of the amount (together with interest
thereon) the collection of which is stayed at the time at which, but for
the making of the jeopardy assessment, such amount would be due. Upon
the filing of the bond the collection of so much of the amount assessed
as is covered by the bond shall be stayed. The taxpayer shall have the
right to waive such stay at any time in respect of the whole or any part
of the amount covered by the bond, and if as a result of such waiver any
part of the amount covered by the bond is paid, then the bond shall at
the request of the taxpayer, be proportionately reduced. If any portion
of the jeopardy assessment is abated, or if a notice of deficiency under
section one hundred twenty-nine is mailed to the taxpayer in a lesser
amount, the bond shall, at the request of the taxpayer, be
proportionately reduced.
(i) Petition to director of finance.--If the bond is given before the
taxpayer has filed his petition under section one hundred thirty-seven,
the bond shall contain a further condition that if a petition is not
filed within the period provided in such section, then the amount, the
collection of which is stayed by the bond, will be paid on notice and
demand at any time after the expiration of such period, together with
interest thereon from the date of the jeopardy notice and demand to the
date of notice and demand under this subdivision. The bond shall be
conditioned upon the payment of so much of such assessment (collection
of which is stayed by the bond) as is not abated by a decision of the
director of finance which has become final. If the director of finance
determines that the amount assessed is greater than the amount which
should have been assessed, then the bond shall, at the request of the
taxpayer, be proportionately reduced when the decision of the director
of finance is rendered.
(j) Stay of sale of seized property pending director of finance
decision.--Where a jeopardy assessment is made, the property seized for
the collection of the tax shall not be sold--
(1) if subdivision (b) is applicable, pior to the issuance of the
notice of deficiency and the expiration of the time provided in section
one hundred thirty-seven for filing a petition with the director of
finance, and
(2) if a petition is filed with the director of finance (whether
before or after the making of such jeopardy assessment), prior to the
expiration of the period during which the assessment of the deficiency
would be prohibited if subdivision (a) were not applicable.
Such property may be sold if the taxpayer consents to the sale, or if
the director of finance determines that the expenses of conservation and
maintenance will greatly reduce the net proceeds, or if the property is
perishable.
(k) Interest.--For the purpose of subdivision (a) of section one
hundred thirty-two, the last date prescribed for payment shall be
determined without regard to any notice and demand for payment issued
under this section prior to the last date otherwise prescribed for such
payment.
(l) Early termination of taxable year.--If the director of finance
finds that a taxpayer designs quickly to depart from this state or to
remove his property therefrom, or to conceal himself or his property
therein, or to do any other act tending to prejudice or to render wholly
or partly ineffectual proceedings to collect the income tax for the
current or the preceeding taxable year unless such proceedings be
brought without delay, the director of finance shall declare the taxable
period for such taxpayer immediately terminated, and shall cause notice
of such finding and declaration to be given the taxpayer, together with
a demand for immediate payment of the tax for the taxable period so
declared terminated and of the tax for the preceeding taxable year or so
much of such tax as is unpaid, whether or not the time otherwise allowed
by law for filing return and paying the tax has expired; and such taxes
shall thereupon become immediately due and payable. In any proceeding
brought to enforce payment of taxes made due and payable by virtue of
the provisions of this subdivision, the finding of the director of
finance made as herein provided, whether made after notice to the
taxpayer or not, shall be for all purposes presumptive evidence of
jeopardy.
(m) Reopening of taxable period.--Notwithstanding the termination of
the taxable period of the taxpayer by the director of finance as
provided in subdivision (l), the director of finance may reopen such
taxable period each time the taxpayer is found by the director of
finance to have received income, within the current taxable year, since
the termination of such period. A taxable period so terminated by the
director of finance may be reopened by the taxpayer if he files with the
director of finance a true and accurate return of taxable income and
credits allowed under this title for such taxable period, together with
such other information as the director of finance may by regulations
prescribe.
(n) Furnishing of bond where taxable year is closed by the director of
finance.--Payment of taxes shall not be enforced by any proceedings
under the provisions of subdivision (1) prior to the expiration of the
time otherwise allowed for paying such taxes if the taxpayer furnishes,
under regulations prescribed by the director of finance, a bond to
insure the timely making of returns with respect to, and payment of,
such taxes or any taxes under this title for prior years.
§ 143. Criminal penalties. (a) Attempt to evade tax.--Any individual
or partnership or member or employee of any partnership, who, with
intent to evade any tax or any requirement of this title or any lawful
requirement of the director of finance thereunder, shall fail to pay the
tax, or to make, render, sign or certify any return or declaration of
estimated income, or to supply any information within the time required
by or under the provisions of this title, or who, with like intent,
shall make, render, sign or certify any false or fraudulent return,
declaration or statement, or shall supply any false or fraudulent
information after the service of a notice by the director of finance
thereunder, shall be guilty of a misdemeanor and shall, upon conviction,
be fined not to exceed five thousand dollars or be imprisoned not to
exceed one year, or both, at the discretion of the court.
(b) Limitations.--Notwithstanding the provisions of section one
hundred forty-two of the state code of criminal procedure or of any
other law of this state, a prosecution for any offense under this
section may be commenced at any time not later than three years after
the commission of such offense provided that, if such offense is the
failure to do an act required by or under any provision of this title to
be done before a certain date, a prosecution for such offense may be
commenced not later than three years after such date.
(c) Two or more charges.--In the prosecution of offenses under this
section, if there are two or more charges against any person or
corporation, involving a violation or violations of any provision or
provisions of this title, whether for the same or different taxable
years, instead of returning several indictments or filing several
informations, all of such charges may be joined in one indictment or
information, in separate counts, and if two or more indictments are
found or two or more informations are filed, the court may order them to
be consolidated. If a person or corporation shall be convicted of two or
more offenses constituting different crimes set forth in different
counts of one indictment or information, or in separate indictments or
informations consolidated as hereinbefore provided, the court may impose
a separate sentence for each offense, and if imprisonment is imposed,
the court may order any of such sentences to be served concurrently or
consecutively.
(d) Miscellaneous rules.--Any prosecution under this section may be
conducted in any county where the person or corporation to whose tax
liability the proceeding relates resides, or has a place of business, or
from which such person or corporation received any income, or in any
county in which any such crime is committed. The corporation counsel of
the city imposing the tax shall have concurrent jurisdiction with any
district attorney in the prosecution of any offenses under this section.
If the provisions of this section conflict with those contained in any
other law, this section shall control. The certificate of the director
of finance to the effect that a tax has not been paid, that a return or
declaration of estimated tax has not been filed, or that information has
not been supplied, as required by or under the provisions of this title,
shall be prima facie evidence that such tax has not been paid, that such
return or declaration has not been filed, or that such information has
not been supplied. All fines levied under this section shall be paid to
the director of finance and deposited in the same manner as revenues
collected or received under this title.
§ 144. Armed forces relief provisions. (a) Time to be disregarded.--In
the case of an individual serving in the armed forces of the United
States or serving in support of such armed forces, in an area designated
by the president of the United States by executive order as a "combat
zone" at any time during the period designated by the president by
executive order as the period of combatant activities in such zone, or
hospitalized outside the state as a result of injury received while
serving in such an area during such time, the period of service in such
area, plus the period of continuous hospitalization outside the state
attributable to such injury, and the next one hundred eighty days
thereafter, shall be disregarded in determining, under this title, in
respect of the tax liability (including any interest, penalty, or
addition to the tax) of such individual--
(1) Whether any of the following acts was performed within the time
prescribed therefor:
(A) filing any return of tax;
(B) payment of any income tax or any installment thereof or of any
other liability to the director of finance, in respect thereof;
(C) filing a petition with the director of finance for credit or
refund or for redetermination of a deficiency, or application for review
of a decision rendered by the director of finance;
(D) allowance of a credit or refund of tax;
(E) filing a claim for credit or refund of tax;
(F) assessment of tax;
(G) giving or making any notice or demand for the payment of any tax,
or with respect to any liability to the director of finance in respect
of tax;
(H) collection, by the director of finance, by levy or otherwise of
the amount of any liability in respect of tax;
(I) bringing suit by the city, or any officer, on its behalf, in
respect of any liability in respect of tax; and
(J) any other act required or permitted under this title or specified
in regulations prescribed under this section by the director of finance.
(2) The amount of any credit or refund (including interest).
(b) Action taken before ascertainment of right to benefits.--The
assessment or collection of the tax imposed by this title or of any
liability to the director of finance in respect of such tax, or any
action or proceeding by or on behalf of the director of finance in
connection therewith, may be made, taken, begun, or prosecuted in
accordance with law, without regard to the provisions of subdivision
(a), unless prior to such assessment, collection, action, or proceeding
it is ascertained that the person concerned is entitled to the benefit
of subdivision (a).
(c) Members of armed forces dying in action.--In the case of any
person who dies during an induction period while in active service as a
member of the armed forces of the United States, if such death occurred
while serving in a combat zone during a period of combatant activities
in such zone, as described in subdivision (a), or as a result of wounds,
disease or injury incurred while so serving, the tax imposed by this
title shall not apply with respect to the taxable year in which falls
the date of his death, or with respect to any prior taxable year ending
on or after the first day he so served in a combat zone, and no returns
shall be required in behalf of such person or his estate for such year;
and the tax for any such taxable year which is unpaid at the date of his
death, including interest, additions to tax and penalties, if any, shall
not be assessed and if assessed, the assessment shall be abated and, if
collected, shall be refunded to the legal representative of his estate
if one has been appointed and has qualified, or, if no legal
representative has been appointed or has qualified, to his widow.
§ 145. General powers of director of finance. (a) General.--The
director of finance shall administer and enforce the tax imposed by this
title and he is authorized to make such rules and regulations, and to
require such facts and information to be reported, as he may deem
necessary to enforce the provisions of this title; and he may delegate
his powers and functions under all parts of this title to one of his
deputies or to any employee or employees of his department.
(b) Examination of books and witnesses.--The director of finance for
the purpose of ascertaining the correctness of any return, or for the
purpose of making an estimate of taxable income of any person, shall
have power to examine or to cause to have examined, by any agent or
representative designated by him for that purpose, any books, papers,
records or memoranda bearing upon the matters required to be included in
the return, and may require the attendance of the person rendering the
return or any officer or employee of such person, or the attendance of
any other person having knowledge in the premises, and may take
testimony and require proof material for his information, with power to
administer oaths to such person or persons.
(c) Abatement authority.--The director of finance, of his own motion,
may abate any small unpaid balance of an assessment of tax under this
part, or any liability in respect thereof, if the director of finance
determines under uniform rules prescribed by him that the administration
and collection costs involved would not warrant collection of the amount
due. He may also abate, of his own motion, the unpaid portion of the
assessment of any tax or any liability in respect thereof, which is
excessive in amount, or is assessed after the expiration of the period
of limitation properly applicable thereto, or is erroneously or
illegally assessed. No claim for abatement under this subdivision shall
be filed by a taxpayer.
(d) Special refund authority.--Where no questions of fact or law are
involved and it appears from the records of the director of finance that
any moneys have been erroneously or illegally collected from any
taxpayer or other person, or paid by such taxpayer or other person under
a mistake of facts, pursuant to the provisions of this title, the
director of finance at any time, without regard to any period of
limitations, shall have the power, upon making a record of his reasons
therefor in writing, to cause such moneys so paid and being erroneously
and illegally held to be refunded.
(e) Cooperation with the United States, this state and other
states.--Notwithstanding the provisions of section one hundred
forty-six, the director of finance may permit the secretary of the
treasury of the United States or his delegates, or the proper officer of
this or any other state imposing an income tax upon the incomes of
individuals, or the authorized representative of any such officer, to
inspect any return filed under this title or may furnish to such officer
or his authorized representative an abstract of any such return or
supply him with information concerning an item contained in any such
return, or disclosed by any investigation of tax liability under this
title, but such permission shall be granted or such information
furnished to such officer or his representative only if the laws of the
United States or of such state, as the case may be, grant substantially
similar privileges to the director of finance and such information is to
be used for tax purposes only; and provided further the director of
finance may furnish to the secretary of the treasury of the United
States or his delegates or to the tax commission of the state of New
York or its delegates such returns filed under this title and other tax
information, as he may consider proper, for use in court actions or
proceedings under the internal revenue code or the tax law of the state
of New York, whether civil or criminal, where a written request therefor
has been made to the director of finance by the secretary of the
treasury or by such tax commission or by their delegates, provided the
laws of the United States or the laws of the state of New York grant
substantially similar powers to the secretary of the treasury or his
delegates or to such tax commission or its delegates. Where the director
of finance has so authorized use of returns or other information in such
actions or proceedings, officers and employees of the department of
finance may testify in such actions or proceedings in respect to such
returns or other information.
(f) Authority to set interest rates.--The commissioner of finance, by
regulation, may set the rate of interest to be paid pursuant to sections
one hundred thirty-two, one hundred thirty-three and one hundred
thirty-six. Such rate shall be the same for each such section and shall
be not less than six percent per annum nor more than the rate of
interest prescribed by the banking board pursuant to section fourteen-a
of the banking law, but if the commissioner of finance has not set such
rate, interest at six percent per annum shall apply. Any rate set by
the commissioner of finance shall go into effect not less than sixty
days after the regulation is promulgated, and shall apply only to taxes
due or paid for taxable years commencing after the effective date of
such regulation.
(g) In computing the amount of any interest required to be paid under
this title by the commissioner of finance or by the taxpayer, or any
other amount determined by reference to such amount of interest, such
interest and such amount shall be compounded daily. The preceding
sentence shall not apply for purposes of computing the amount of any
addition to tax for failure to pay estimated tax under subdivision (c)
of section one hundred thirty-three.
(h) Fractional parts of a dollar. -- The commissioner of finance may
provide by regulation (1) that in any determination, assessment,
collection, refund or credit under this title, a fractional part of a
dollar may be disregarded unless it amounts to fifty cents or more, in
which case it shall be increased to one dollar, and (2) that any person
making a return, report or other statement required to be filed under
this title, may elect with respect to any amount required to be shown
thereon, if such amount is other than a whole dollar amount, either to
disregard the fractional part of a dollar or to disregard the fractional
part of a dollar unless it amounts to fifty cents or more, in which case
the amount (determined without regard to the fractional part of a
dollar) shall be increased by one dollar; provided, however, that such
election shall not be applicable to items which must be taken into
account in making the computations necessary to determine the amount
required to be shown on any such return, report or other statement but
shall be applicable only to the final amount required to be shown
thereon.
§ 146. Secrecy requirement and penalties for violation. Except in
accordance with proper judicial order or as otherwise provided by law,
it shall be unlawful for the director of finance, the department of
finance of the city, any officer or employee of the department of
finance of the city, any person engaged or retained by such department
on an independent contract basis, or any person who, pursuant to this
section, is permitted to inspect any report or return or to whom a copy,
an abstract or a portion of any report or return is furnished, or to
whom any information contained in any report or return is furnished, to
divulge or make known in any manner the amount of income or any
particulars set forth or disclosed in any report or return required
under this title. The officers charged with the custody of such reports
and returns shall not be required to produce any of them or evidence of
anything contained in them in any action or proceeding in any court,
except on behalf of the city in an action or proceeding under the
provisions of this title or in any other action or proceeding involving
the collection of a tax due under this title to which the city is a
party or a claimant, or on behalf of any party to any action or
proceeding under the provisions of this title when the reports, returns
or facts shown thereby are directly involved in such action or
proceeding, in any of which events the court may require the production
of, and may admit in evidence, so much of said reports, returns or of
the facts shown thereby, as are pertinent to the action or proceeding
and no more. The director of finance may, nevertheless, publish a copy
or a summary of any determination or decision rendered after the hearing
required under section one hundred thirty-seven of this title. Nothing
herein shall be construed to prohibit the delivery to a taxpayer or his
duly authorized representative of a certified copy of any return or
report filed in connection with his tax or to prohibit the publication
of statistics so classified as to prevent the identification of
particular reports or returns and the items thereof, or the inspection
by the corporation counsel or other legal representatives of the city of
the report or return of any taxpayer who shall bring action to set aside
or review the tax based thereon, or against whom an action or proceeding
under this title has been recommended by the director of finance or the
corporation counsel or has been instituted, or the inspection of the
reports or returns required under this title by the duly designated
officers or employees of the city for purposes of an audit under this
title or an audit authorized by the act enacting this title. Reports and
returns shall be preserved for three years and thereafter until the
director of finance orders them to be destroyed. Any violation of the
provisions of this subdivision shall be punished by a fine not exceeding
one thousand dollars or by imprisonment not exceeding one year, or both,
at the discretion of the court, and if the offender be an officer or
employee of the city or the state, he shall be dismissed from office and
be incapable of holding any public office in the city or the state for a
period of five years thereafter.
§ 147. Effect of invalidity in part. If any clause, sentence,
paragraph, subsection, section or other part of this title or the
application thereof to any person or circumstances, shall be held to be
invalid, such holding shall not affect, impair or invalidate the
remainder of this title or the application of such part held invalid, to
any other person or circumstances, but shall be confined in its
operation to the clause, sentence, paragraph, subsection, section or
other part thereof directly involved in such holding, or to the person
and circumstances therein involved.
§ 148. Inconsistencies with other laws. If any provision of this title
is inconsistent with, in conflict with, or contrary to any other
provision of law, such provision of this title shall prevail over such
other provision and such other provision shall be deemed to have been
amended, superseded or repealed to the extent of such inconsistency,
conflict or contrariety.
§ 149. Disposition of revenues*. All revenues resulting from the
imposition of the taxes under this title shall be paid into the treasury
of the city and shall be credited to and deposited in the general fund
of the city, but no part of such revenues may be expended unless
appropriated in the annual budget of the city.
* Does not conform to section heading in schedule.
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