S T A T E O F N E W Y O R K
________________________________________________________________________
S. 60--A A. 160--A
S E N A T E - A S S E M B L Y
(PREFILED)
January 7, 2009
___________
IN SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti-
cle seven of the Constitution -- read twice and ordered printed, and
when printed to be committed to the Committee on Finance -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
IN ASSEMBLY -- A BUDGET BILL, submitted by the Governor pursuant to
article seven of the Constitution -- read once and referred to the
Committee on Ways and Means -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the tax law and the administrative code of the city of
New York, in relation to the definition of presence in New York in
determining a taxpayer`s New York residency status (Part A); to amend
the tax law, in relation to conforming the definition of manufacturing
under the capital base to the definition of manufacturing under the
entire net income base (Part B); to amend the tax law, in relation to
the exemption from the franchise tax on insurance corporations under
article thirty-three of such law for town or county cooperative insur-
ance corporations (Part C); to amend the tax law, in relation to
increasing the rate of the premiums tax on certain insurance companies
and eliminating the franchise tax imposed on life insurance companies,
and to repeal certain provisions of the tax law relating thereto (Part
D); to amend the tax law, in relation to collection and offset agree-
ments with the United States or other states (Part E); to amend the
tax law, in relation to the treatment of overcapitalized captive
insurance companies (Part F); to amend the tax law, in relation to
limiting various underutilized tax credits (Part G); to amend the tax
law, in relation to requiring nonresidents to include as a source of
income the gain or loss from the sale of a partnership, limited
liability corporation, S corporation or a non-publicly traded C corpo-
ration with one hundred or fewer shareholders to the extent that the
gain or loss includes gain or loss from real property located in New
York (Part H); to amend the tax law, in relation to changing the
percentage used to complete the mandatory first installment of fran-
chise tax and the metropolitan commuter transportation district busi-
ness tax surcharge under articles 9, 9-A, 32 and 33 (Part I); to amend
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12374-02-9
S. 60--A 2 A. 160--A
the tax law, in relation to adding filing fees for partnerships (Part
J); to amend the general municipal law and the tax law, in relation to
enacting reforms to the empire zones program; and to repeal certain
provisions of such laws relating thereto (Part K); to amend the public
housing law, in relation to providing a credit against income tax for
persons or entities investing in low-income housing (Part L); to amend
the tax law and the administrative code of the city of New York, in
relation to limiting itemized deductions for certain taxpayers and
determining the amount of estimated tax installments to be paid (Part
M); to amend the tax law, in relation to the treatment of income
received by partners for performing investment management services as
New York source income received for the performance of services (Part
N); to amend the tax law, in relation to providing taxpayers with a
credit for increasing research activities (Part O); to amend the tax
law, in relation to the qualified emerging technology company facili-
ties, operations and training credit (Part P); to amend the tax law,
in relation to imposing sales tax on cable television service (Part
Q); to amend the tax law, in relation to the tobacco products and
cigarette taxes to remedy various compliance and enforcement problems
and in relation to taxing cigars by unit rather than by a percentage
of the wholesale price (Part R); to amend the tax law, in relation to
including the amount of any discount given for a coupon in the amounts
subject to the sales and compensating use taxes (Part S); to amend the
state finance law, in relation to investment of lottery moneys avail-
able and retained on deposit for the payment of lottery prizes (Part
T); to amend the tax law, in relation to replacing the year-round
sales and compensating use tax exemption for clothing and footwear
under one hundred ten dollars with two one-week exemption periods with
a five hundred dollar threshold and authorizing counties and cities
that impose such taxes to elect or decline such exemption weeks; and
to repeal subdivision (k) of section 1210 of such law relating thereto
(Part U); to amend the tax law, in relation to imposing state and
local sales and compensating use taxes on certain personal services
and credit rating and reporting services currently imposed by a city
of one million or more, and to repeal section 11-2002 and subchapter 3
of chapter 20 of title 11 of the administrative code of the city of
New York, relating to that city`s sales and use taxes on those
personal services and credit rating and reporting services (Part V);
to amend the tax law, in relation to making technical corrections
regarding the operation of video lottery gaming and approving the
construction or alteration of any facility housing video lottery
gaming; and to amend chapter 383 of the laws of 2001, amending the tax
law and other laws relating to authorizing the division of the lottery
to conduct a pilot program involving the operation of video lottery
terminals at certain racetracks, in relation to the effectiveness
thereof; and to repeal certain provisions of the tax law relating
thereto (Part W); to amend the tax law and the alcoholic beverage
control law, in relation to taxing flavored malt beverages at the low
liquor tax rate (Part X); to amend the racing, pari-mutuel wagering
and breeding law in relation to licenses for simulcast facilities,
sums relating to track simulcast, simulcast of out-of-state thorough-
bred races, simulcasting of races run by out-of-state harness tracks
and distributions of wagers; to amend chapter 281 of the laws of 1994
amending the racing, pari-mutuel wagering and breeding law and other
laws relating to simulcasting and to amend chapter 346 of the laws of
1990 amending the racing, pari-mutuel wagering and breeding law and
S. 60--A 3 A. 160--A
other laws relating to simulcasting and the imposition of certain
taxes, in relation to extending certain provisions thereof; and to
amend the racing, pari-mutuel wagering and breeding law, in relation
to extending certain provisions thereof (Part Y); to amend the tax
law, in relation to changing the rate of the prepaid sales tax on
cigarettes (Part Z); to amend the tax law, in relation to curtailing
certain abusive sales and use tax avoidance schemes by narrowing the
use tax non-resident exemption for certain items of tangible personal
property and the sales tax exemption for commercial aircraft (Part
AA); to repeal subdivision (e-1) of section 1132 of the tax law relat-
ing to a sales tax bad debt credit or refund for purchases made by
private label credit cards (Part BB); to amend the tax law and the
rural electric cooperative law, in relation to imposing sales and
compensating use tax on digital products and clarifying the corpo-
ration franchise tax treatment of these products (Part CC); to amend
the tax law, chapter 35 of the laws of 2006 amending the tax law
relating to computing sales and compensating use tax on motor fuel and
diesel motor fuel and amending the tax law and the general business
law relating to requiring retail dealers of motor fuel and diesel
motor fuel to reduce prices for such fuel, and chapter 109 of the laws
of 2006 amending the tax law and other laws relating to the sales tax
imposed on motor fuel and diesel motor fuel, in relation to repealing
the state and any local sales and compensating use tax cap on motor
fuel and diesel motor fuel and restoring the percentage rate of those
taxes on those fuels (Part DD); to amend the tax law, in relation to
reauthorizing the commissioner of taxation and finance to require the
use of decals in certain instances (Part EE); to amend the tax law, in
relation to expanding the definition of vendor for purposes of the
sales and compensating use taxes (Part FF); to amend the racing, pari-
mutuel wagering and breeding law and the tax law, in relation to
authorizing video lottery gaming at Belmont Park (Part GG); to amend
the tax law and the state finance law, in relation to imposing a state
sales and compensating use tax surcharge on certain beverage products
(Part HH); to amend chapter 405 of the laws of 1999, amending the real
property tax law relating to improving the administration of the
school tax relief (STAR) program, in relation to eliminating the expi-
ration and repeal of the Quick Draw lottery game; and to amend the tax
law, in relation to the game of Quick Draw (Part II); to amend the tax
law, in relation to participation in more than one joint, multi-juris-
diction and out-of-state lottery (Part JJ); to amend the alcoholic
beverage control law, in relation to creating a new grocery or drug
store wine license (Part KK); to amend the tax law, in relation to
taxes on beer and wine under article 18 of the tax law (Part LL); to
amend the tax law, in relation to the special tax on passenger car
rentals under article 28-A of such law (Part MM); to amend the tax
law, in relation to imposing state and local sales taxes on certain
transportation services (Part NN); to amend the tax law, in relation
to expanding sales taxes on certain amusement charges; and to repeal
sections 1122 and 1123 of such law relating thereto (Part OO); to
amend the tax law, in relation to narrowing the sales taxes definition
and treatment of capital improvement (Part PP); to amend the tax law,
in relation to the fees for replacement highway use tax credentials
(Part QQ); to amend the tax law, in relation to imposing an additional
rate of sales tax on certain luxury property (Part RR); and to amend
the tax law, in relation to reporting information regarding deposits
and bank settlements (Subpart A); to amend the tax law, in relation to
S. 60--A 4 A. 160--A
authorizing the use of generally accepted statistical sampling to
determine the amount of sales and compensating use tax due under arti-
cles 28 and 29 of such law (Subpart B); to amend the tax law, in
relation to imposing a penalty for failure to keep mandatory records,
to provide records in auditable format or to provide access to manda-
tory records maintained electronically (Subpart C); to amend the tax
law, in relation to the failure of a responsible person to collect and
pay over withholding tax (Subpart D); to amend the tax law, in
relation to certain penalties; to amend chapter 61 of the laws of 2005
amending the tax law relating to certain transactions and related
information, in relation to making the penalty amount for aiding or
assisting in the giving of fraudulent returns permanent; and to repeal
certain provisions of the tax law relating thereto (Subpart E); to
amend the tax law, in relation to providing expedited hearings relat-
ing to cancellations, revocations, or suspensions of certain creden-
tials and to penalties imposed on persons who aid or assist in the
filing of fraudulent tax documents (Subpart F); to amend the tax law,
in relation to establishing an award program for significant informa-
tion concerning noncompliance with the tax laws of the state of New
York (Subpart G); to amend the tax law, in relation to changing the
last quarterly withholding filing date for employers (Subpart H); to
amend the tax law, in relation to a branch or separate office of a
bank (Subpart I); to amend the criminal procedure law, the penal law
and the tax law, in relation to creating the offense of "tax fraud
act"; to amend the tax law, in relation to simplifying and consolidat-
ing the provisions describing the acts that constitute offenses under
such law; and to repeal certain provisions of the tax law relating
thereto (Subpart J); to amend the county law, in relation to authoriz-
ing district attorneys to appoint attorneys employed by the department
of taxation and finance as special assistant district attorneys in tax
cases (Subpart K); to amend the tax law, in relation to clarifying
some technical aspects of the voluntary disclosure and compliance
program (Subpart L); to amend the tax law, abandoned property law,
environmental conservation law, insurance law, lien law, mental
hygiene law, public health law, real property tax law, social services
law, state finance law and the administrative code of the city of New
York, in relation to decreasing the overpayment and increasing the
underpayment rates of interest, changing the overpayment interest
accrual date for sales and compensating use taxes and providing for an
interest-free period for refunds or credits of sales and compensating
use taxes (Subpart M); to amend the tax law, in relation to requiring
certain third-parties to file information returns providing informa-
tion about vendors, hotel operators and recipients of amusement charg-
es (Subpart N); to amend the tax law, in relation to the filing of tax
warrants and related records in the department of state; and to repeal
section 6 of such law relating thereto (Subpart O); and to amend the
tax law, in relation to the collection of a penalty and interest on
sales and use taxes upon a bulk sale of assets (Subpart P) (Part SS)
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. This act enacts into law major components of legislation
2 which are necessary to implement the state fiscal plan for the 2009-2010
3 state fiscal year. Each component is wholly contained within a Part
S. 60--A 5 A. 160--A
1 identified as Parts A through SS. The effective date for each particular
2 provision contained within such Part is set forth in the last section of
3 such Part. Any provision in any section contained within a Part, includ-
4 ing the effective date of the Part, which makes a reference to a section
5 "of this act", when used in connection with that particular component,
6 shall be deemed to mean and refer to the corresponding section of the
7 Part in which it is found. Section three of this act sets forth the
8 general effective date of this act.
9 PART A
10 Section 1. Subparagraph (A) of paragraph 1 of subsection (b) of
11 section 605 of the tax law, as amended by chapter 760 of the laws of
12 1992, is amended to read as follows:
13 (A) who is domiciled in this state, unless (i) {he} THE TAXPAYER main-
14 tains no permanent place of abode in this state, maintains a permanent
15 place of abode elsewhere, and spends in the aggregate not more than
16 thirty days of the taxable year in this state, or (ii) (I) within any
17 period of five hundred forty-eight consecutive days {he} THE TAXPAYER is
18 present in a foreign country or countries for at least four hundred
19 fifty days, and (II) during {such} THE period of five hundred forty-
20 eight consecutive days {he is} THE TAXPAYER, THE TAXPAYER`S SPOUSE
21 (UNLESS THE SPOUSE IS LEGALLY SEPARATED) AND THE TAXPAYER`S MINOR CHIL-
22 DREN ARE not present in this state for more than ninety days {and does
23 not maintain a permanent place of abode in this state at which his
24 spouse (unless such spouse is legally separated) or minor children are
25 present for more than ninety days}, and (III) during the nonresident
26 portion of the taxable year with or within which {such} THE period of
27 five hundred forty-eight consecutive days begins and the nonresident
28 portion of the taxable year with or within which {such} THE period ends,
29 {he} THE TAXPAYER is present in this state for a number of days which
30 does not exceed an amount which bears the same ratio to ninety as the
31 number of days contained in {such} THAT portion of the taxable year
32 bears to five hundred forty-eight, or
33 S 2. Paragraph 1 of subsection (a) of section 1305 of the tax law, as
34 amended by chapter 790 of the laws of 1978, is amended to read as
35 follows:
36 (1) who is domiciled in the city wherein the tax is imposed, unless
37 (A) {he} THE TAXPAYER maintains no permanent place of abode in {such}
38 THE city, maintains a permanent place of abode elsewhere, and spends in
39 the aggregate not more than thirty days of the taxable year in {such}
40 THE city, or (B) (i) within any period of five hundred forty-eight
41 consecutive days {he} THE TAXPAYER is present in a foreign country or
42 countries for at least four hundred fifty days, and (ii) during such
43 period of five hundred forty-eight consecutive days {he is} THE TAXPAY-
44 ER, THE TAXPAYER`S SPOUSE (UNLESS THE SPOUSE IS LEGALLY SEPARATED) AND
45 THE TAXPAYER`S MINOR CHILDREN ARE not present in {such} THE city for
46 more than ninety days {and does not maintain a permanent place of abode
47 in such city at which his spouse (unless such spouse is legally sepa-
48 rated) or minor children are present for more than ninety days}, and
49 (iii) during any period of less than twelve months, which would be
50 treated as a separate taxable period pursuant to section thirteen
51 hundred seven, and which period is contained within {such} THE period of
52 five hundred forty-eight consecutive days, {he} THE TAXPAYER is present
53 in {such} THE city for a number of days which does not exceed an amount
54 which bears the same ratio to ninety as the number of days contained in
S. 60--A 6 A. 160--A
1 {such} THAT period of less than twelve months bears to five hundred
2 forty-eight, or
3 S 3. Subparagraph (A) of paragraph 1 of subdivision (b) of section
4 11-1705 of the administrative code of the city of New York, as amended
5 by chapter 333 of the laws of 1987, is amended to read as follows:
6 (A) who is domiciled in this city, unless (i) {he} THE TAXPAYER main-
7 tains no permanent place of abode in this city, maintains a permanent
8 place of abode elsewhere, and spends in the aggregate not more than
9 thirty days of the taxable year in this city, or (ii) (I) within any
10 period of five hundred forty-eight consecutive days {he} THE TAXPAYER is
11 present in a foreign country or countries for at least four hundred
12 fifty days, and (II) during {such} THE period of five hundred forty-
13 eight consecutive days {he is} THE TAXPAYER, THE TAXPAYER`S SPOUSE
14 (UNLESS THE SPOUSE IS LEGALLY SEPARATED) AND THE TAXPAYER`S MINOR CHIL-
15 DREN ARE not present in this city for more than ninety days {and does
16 not maintain a permanent place of abode in this city at which his spouse
17 (unless such spouse is legally separated) or minor children are present
18 for more than ninety days}, and (III) during any period of less than
19 twelve months, which would be treated as a separate taxable period
20 pursuant to section 11-1754, and which period is contained within {such}
21 THE period of five hundred forty-eight consecutive days, {he} THE
22 TAXPAYER is present in this city for a number of days which does not
23 exceed an amount which bears the same ratio to ninety as the number of
24 days contained in {such} THAT period of less than twelve months bears to
25 five hundred forty-eight, or
26 S 4. Paragraph 1 of subsection (a) of section 1325 of the tax law, as
27 added by chapter 345 of the laws of 1984, is amended to read as follows:
28 (1) who is domiciled in the city wherein the city income tax surcharge
29 is imposed pursuant to the authority of this article, unless (A) {he}
30 THE TAXPAYER maintains no permanent place of abode in such city, main-
31 tains a permanent place of abode elsewhere, and spends in the aggregate
32 not more than thirty days of the taxable year in {such} THE city, or
33 (B)(i) within any period of five hundred forty-eight consecutive days
34 {he is} THE TAXPAYER, THE TAXPAYER`S SPOUSE (UNLESS THE SPOUSE IS LEGAL-
35 LY SEPARATED) AND THE TAXPAYER`S MINOR CHILDREN ARE present in a foreign
36 country or countries for at least four hundred fifty days, and (ii)
37 during {such} THE period of five hundred forty-eight consecutive days
38 {he} THE TAXPAYER is not present in {such} THE city for more than ninety
39 days {and does not maintain a permanent place of abode in such city at
40 which his spouse (unless such spouse is legally separated) or minor
41 children are present for more than ninety days}, and (iii) during any
42 period of less than twelve months, which would be treated as a separate
43 taxable period pursuant to section thirteen hundred twenty-seven of this
44 article, and which period is contained within {such} THE period of five
45 hundred forty-eight consecutive days, {he} THE TAXPAYER is present in
46 {such} THE city for a number of days which does not exceed an amount
47 which bears the same ratio to ninety as the number of days contained in
48 {such} THAT period of less than twelve months bears to five hundred
49 forty-eight, or
50 S 5. Paragraph 1 of subsection (f) of section 1 contained in
51 subsection (c) of section 1340 of the tax law, as added by chapter 345
52 of the laws of 1984, is amended to read as follows:
53 (1) who is domiciled in the city, unless (A) {he} THE TAXPAYER main-
54 tains no permanent place of abode in the city, maintains a permanent
55 place of abode elsewhere, and spends in the aggregate not more than
56 thirty days of the taxable year in the city, or (B) (i) within any peri-
S. 60--A 7 A. 160--A
1 od of five hundred forty-eight consecutive days {he} THE TAXPAYER is
2 present in a foreign country or countries for at least four hundred
3 fifty days, and (ii) during such period of five hundred forty-eight
4 consecutive days {he is} THE TAXPAYER, THE TAXPAYER`S SPOUSE (UNLESS THE
5 SPOUSE IS LEGALLY SEPARATED) AND THE TAXPAYER`S MINOR CHILDREN ARE not
6 present in the city for more than ninety days {and does not maintain a
7 permanent place of abode in the city at which his spouse (unless such
8 spouse is legally separated) or minor children are present for more than
9 ninety days}, and (iii) during any period of less than twelve months,
10 which would be treated as a separate taxable period based on a change of
11 resident status, and which period is contained within {such} THE period
12 of five hundred forty-eight consecutive days, {he} THE TAXPAYER is pres-
13 ent in the city for a number of days which does not exceed an amount
14 which bears the same ratio to ninety as the number of days contained in
15 {such} THAT period of less than twelve months bears to five hundred
16 forty-eight, or
17 S 6. This act shall take effect immediately and apply to taxable years
18 beginning on or after January 1, 2009.
19 PART B
20 Section 1. Subparagraph 2 of paragraph (b) of subdivision 1 of section
21 210 of the tax law, as amended by section 1 of part GG-1 of chapter 57
22 of the laws of 2008, is amended to read as follows:
23 (2) For purposes of subparagraph one of this paragraph, the term
24 "manufacturer" shall mean a taxpayer which during the taxable year is
25 principally engaged in the production of goods by manufacturing, proc-
26 essing, assembling, refining, mining, extracting, farming, agriculture,
27 horticulture, floriculture, viticulture or commercial fishing. HOWEVER,
28 THE GENERATION AND DISTRIBUTION OF ELECTRICITY, THE DISTRIBUTION OF
29 NATURAL GAS, AND THE PRODUCTION OF STEAM ASSOCIATED WITH THE GENERATION
30 OF ELECTRICITY ARE NOT QUALIFYING ACTIVITIES FOR A MANUFACTURER UNDER
31 THIS SUBPARAGRAPH. Moreover, for purposes of computing the capital base
32 in a combined report, the combined group shall be considered a "manufac-
33 turer" for purposes of this subparagraph only if the combined group
34 during the taxable year is principally engaged in the activities set
35 forth in this subparagraph, or any combination thereof. A taxpayer or a
36 combined group shall be "principally engaged" in activities described
37 above if, during the taxable year, more than fifty percent of the gross
38 receipts of the taxpayer or combined group, respectively, are derived
39 from receipts from the sale of goods produced by such activities. In
40 computing a combined group`s gross receipts, intercorporate receipts
41 shall be eliminated. A "qualified New York manufacturer" is a manufac-
42 turer that has property in New York that is described in clause (A) of
43 subparagraph (i) of paragraph (b) of subdivision twelve of this section
44 and either (i) the adjusted basis of that property for federal income
45 tax purposes at the close of the taxable year is at least one million
46 dollars or (ii) all of its real and personal property is located in New
47 York. In addition, a "qualified New York manufacturer" means a taxpayer
48 that is defined as a qualified emerging technology company under para-
49 graph (c) of subdivision one of section thirty-one hundred two-e of the
50 public authorities law regardless of the ten million dollar limitation
51 expressed in subparagraph one of such paragraph.
52 S 2. This act shall take effect immediately and shall apply to taxable
53 years beginning on or after January 1, 2009.
S. 60--A 8 A. 160--A
1 PART C
2 Section 1. Paragraph 7 of subdivision (a) of section 1512 of the tax
3 law, as amended by chapter 817 of the laws of 1987, is amended to read
4 as follows:
5 (7) a town or county cooperative insurance corporation as heretofore
6 contemplated by section one hundred eighty-seven of this chapter in
7 effect immediately prior to January first, nineteen hundred
8 seventy-four, THAT PROPERLY REPORTED TO THE SUPERINTENDENT OF INSURANCE
9 TOTAL DIRECT PREMIUMS WRITTEN FOR THE TAXABLE YEAR OF TWENTY-FIVE
10 MILLION DOLLARS OR LESS.
11 S 2. This act shall take effect immediately and apply to taxable years
12 beginning on or after January 1, 2009.
13 PART D
14 Section 1. Subdivisions (g), (h), (i) and (j) of section 1500, and
15 sections 1501, 1502, 1502-a, 1503, 1504, and 1505 of the tax law are
16 REPEALED.
17 S 2. Subdivision (e) of section 1500 of the tax law, as amended by
18 section 1 of part H3 of chapter 62 of the laws of 2003, is amended to
19 read as follows:
20 (e) The term "taxpayer" means any insurance corporation subject to the
21 tax imposed under section {fifteen hundred one, fifteen hundred two-a,
22 or} fifteen hundred ten or any captive insurance company subject to the
23 tax imposed under section fifteen hundred two-b of this article.
24 S 3. Subdivision (a) of section 1502-b of the tax law, as separately
25 amended by section 3 of part H1 of chapter 62 and chapter 188 of the
26 laws of 2003, is amended to read as follows:
27 (a) In lieu of the {taxes} TAX and tax surcharge imposed by sections
28 {fifteen hundred one, fifteen hundred two-a,} fifteen hundred five-a{,}
29 and fifteen hundred ten of this article, every captive insurance company
30 licensed by the superintendent of insurance pursuant to the provisions
31 of article seventy of the insurance law, other than the metropolitan
32 transportation authority and a public benefit corporation or not-for-
33 profit corporation formed by a city with a population of one million or
34 more pursuant to subsection (a) of section seven thousand five of the
35 insurance law, each of which is expressly exempt from the payment of
36 fees, taxes or assessments whether state or local, shall, for the privi-
37 lege of exercising its corporate franchise, pay a tax on (1) all gross
38 direct premiums, less return premiums thereon, written on risks located
39 or resident in this state and (2) all assumed reinsurance premiums, less
40 return premiums thereon, written on risks located or resident in this
41 state. The rate of the tax imposed on gross direct premiums shall be
42 four-tenths of one percent on all or any part of the first twenty
43 million dollars of premiums, three-tenths of one percent on all or any
44 part of the second twenty million dollars of premiums, two-tenths of one
45 percent on all or any part of the third twenty million dollars of premi-
46 ums, and seventy-five thousandths of one percent on each dollar of
47 premiums thereafter. The rate of the tax on assumed reinsurance premiums
48 shall be two hundred twenty-five thousandths of one percent on all or
49 any part of the first twenty million dollars of premiums, one hundred
50 and fifty thousandths of one percent on all or any part of the second
51 twenty million dollars of premiums, fifty thousandths of one percent on
52 all or any part of the third twenty million dollars of premiums and
53 twenty-five thousandths of one percent on each dollar of premiums there-
S. 60--A 9 A. 160--A
1 after. The tax imposed by this section shall be equal to the greater of
2 (i) the sum of the tax imposed on gross direct premiums and the tax
3 imposed on assumed reinsurance premiums or (ii) five thousand dollars.
4 S 4. Subdivisions (a) and (e) of section 1505-a of the tax law, subdi-
5 vision (a) as amended by section 6 of part II-1 of chapter 57 of the
6 laws of 2008 and subdivision (e) as amended by chapter 166 of the laws
7 of 1991, are amended to read as follows:
8 (a) (1) Every domestic insurance corporation and every foreign or
9 alien insurance corporation, and every life insurance corporation
10 described in PARAGRAPH TWO OF subdivision (b) of section fifteen hundred
11 {one} TEN of this article, for the privilege of exercising its corporate
12 franchise, or of doing business, or of employing capital, or of owning
13 or leasing property in the metropolitan commuter transportation district
14 in a corporate or organized capacity, or of maintaining an office in the
15 metropolitan commuter transportation district, for all or any part of
16 its taxable years commencing on or after January first, nineteen hundred
17 eighty-two, but ending before December thirty-first, two thousand thir-
18 teen, except corporations specified in subdivision (c) of section
19 fifteen hundred twelve of this article, shall annually pay, in addition
20 to the {taxes otherwise} TAX imposed by SECTION FIFTEEN HUNDRED TEN OF
21 this article, a tax surcharge on {the taxes imposed under this article}
22 THAT TAX after the deduction of any credits otherwise allowable under
23 this article as allocated to such district. {Such taxes shall be allo-
24 cated to such district for purposes of computing such tax surcharge upon
25 taxpayers subject to tax under subdivision (b) of section fifteen
26 hundred ten of this article by applying the methodology, procedures and
27 computations set forth in subdivisions (a) and (b) of section fifteen
28 hundred four of this article, except that references to terms denoting
29 New York premiums, and total wages, salaries, personal service compen-
30 sation and commissions within New York shall be read as denoting within
31 the metropolitan commuter transportation district and terms denoting
32 total premiums and total wages, salaries, personal service compensation
33 and commissions shall be read as denoting within the state. If it shall
34 appear to the commissioner that the application of the methodology,
35 procedures and computations set forth in such subdivisions (a) and (b)
36 does not properly reflect the activity, business or income of a taxpayer
37 within the metropolitan commuter transportation district, then the
38 commissioner shall be authorized, in the commissioner`s discretion, to
39 adjust such methodology, procedures and computations for the purpose of
40 allocating such taxes by:
41 (A) excluding one or more factors therein;
42 (B) including one or more other factors therein, such as expenses,
43 purchases, receipts other than premiums, real property or tangible
44 personal property; or
45 (C) any other similar or different method which allocates such taxes
46 by attributing a fair and proper portion of such taxes to the metropol-
47 itan commuter transportation district. The commissioner from time to
48 time shall publish all rulings of general public interest with respect
49 to any application of the provisions of the preceding sentence. The
50 commissioner may promulgate rules and regulations to further implement
51 the provisions of this section.
52 (2) Such taxes} THE TAX IMPOSED BY SECTION FIFTEEN HUNDRED TEN shall
53 be allocated to such district for purposes of computing such tax
54 surcharge {upon taxpayers subject to tax under section fifteen hundred
55 two-a of this article} pursuant to a fraction, the denominator of which
56 shall be the direct premiums subject to tax under section fifteen
S. 60--A 10 A. 160--A
1 hundred ten of this article, and the numerator of which shall be the
2 direct premiums subject to tax under section fifteen hundred ten of this
3 article that are written on risks located or resident in the metropol-
4 itan commuter transportation district, including premiums written,
5 procured or received in the metropolitan commuter transportation
6 district on business that cannot be specifically assigned as located or
7 resident in an area of New York state outside the metropolitan commuter
8 transportation district, or in another state or states; provided, howev-
9 er, in the case of special risk premiums, the numerator shall include
10 only those premiums written, procured or received in the metropolitan
11 commuter transportation district on property or risks located or resi-
12 dent in the metropolitan commuter transportation district. If it shall
13 appear to the commissioner that the application of the methodology,
14 procedures and computations set forth in this paragraph does not proper-
15 ly reflect the activity{,} OR business {or income} of a taxpayer within
16 the metropolitan commuter transportation district, then the commissioner
17 shall be authorized, in the commissioner`s discretion, to adjust such
18 methodology, procedures and computations for the purpose of allocating
19 such taxes by: (A) excluding the factor therein and including one or
20 more other factors such as expenses, purchases, receipts other than
21 premiums, real property or tangible personal property; or (B) any other
22 similar or different method which allocates such taxes by attributing a
23 fair and proper portion of such taxes to the metropolitan commuter
24 transportation district. The commissioner from time to time shall
25 publish all rulings of general public interest with respect to any
26 application of the provisions of the preceding sentence. The commission-
27 er may promulgate rules and regulations to further implement the
28 provisions of this section.
29 {(3)} (2) Such tax surcharge shall be computed at the rate of {eigh-
30 teen percent of the taxes imposed under sections fifteen hundred one and
31 fifteen hundred ten of this article as limited by section fifteen
32 hundred five of this article, as allocated to such district, for such
33 taxable years or any part of such taxable years ending before December
34 thirty-first, nineteen hundred eighty-three after the deduction of any
35 credits otherwise allowable under this article, at the rate of seventeen
36 percent of the taxes imposed under such sections as limited by section
37 fifteen hundred five of this article, as allocated to such district, for
38 such taxable years or any part of such taxable years ending on or after
39 December thirty-first, nineteen hundred eighty-three and before January
40 first, two thousand three after the deduction of any credits otherwise
41 allowable under this article, and at the rate of seventeen percent of
42 the taxes imposed under sections fifteen hundred one, fifteen hundred
43 two-a, and fifteen hundred ten of this article, as limited or otherwise
44 determined by subdivision (a) or (b) of section fifteen hundred five of
45 this article, as allocated to such district, for such taxable years or
46 any part of such taxable years ending after December thirty-first, two
47 thousand two after the deduction of any credits otherwise allowable
48 under this article} SEVENTEEN PERCENT OF THE TAX IMPOSED BY SECTION
49 FIFTEEN HUNDRED TEN OF THIS ARTICLE AFTER THE DEDUCTION OF ANY CREDITS
50 OTHERWISE ALLOWABLE UNDER THIS ARTICLE, AS ALLOCATED TO SUCH DISTRICT,
51 FOR TAXABLE YEARS OR ANY PART OF A TAXABLE YEAR ENDING AFTER DECEMBER
52 THIRTY-FIRST, TWO THOUSAND EIGHT; provided, however, that the tax
53 surcharge imposed by this section shall not be imposed upon any taxpayer
54 for more than three hundred seventy-two months. {Provided however, that
55 for taxable years commencing on or after July first, two thousand, and
56 in the case of taxpayers subject to tax under section fifteen hundred
S. 60--A 11 A. 160--A
1 two-a of this article, for taxable years of such taxpayers beginning on
2 or after July first, two thousand and before January first, two thousand
3 three, such surcharge shall be calculated as if (i) the rate of the tax
4 computed under paragraph one of subdivision (a) of section fifteen
5 hundred two of this article was nine percent and (ii) the rate of the
6 limitation on tax set forth in section fifteen hundred five of this
7 article for domestic, foreign and alien insurance corporations except
8 life insurance corporations was two and six-tenths percent.}
9 (e) The provisions concerning returns under section fifteen hundred
10 fifteen of this article shall be applicable to this section, except that
11 for purposes of an automatic extension for six months for filing a
12 return covering the tax surcharges imposed by this section, such auto-
13 matic extension shall be allowed only if a taxpayer files with the
14 commissioner an application for extension in such form and manner as
15 said commissioner may prescribe by regulation and such taxpayer pays on
16 or before the date of such filing in addition to any other amounts
17 required under this article, either ninety percent of the entire tax
18 required to be paid under this section for the applicable period, or not
19 less than the tax surcharge shown on the taxpayer`s return for the
20 preceding taxable year, if such preceding taxable year was a taxable
21 year of twelve months. The tax surcharge imposed by this section shall
22 be payable to the commissioner in full at the time the return is
23 required to be filed, and such tax surcharge or the balance thereof,
24 imposed on any taxpayer which ceases to exercise its franchise or be
25 subject to the tax surcharge imposed by this section shall be payable to
26 the commissioner at the time the return is required to be filed,
27 provided such tax surcharge of such domestic, foreign or alien insurance
28 corporation including life insurance corporations, as described in PARA-
29 GRAPH TWO OF subdivision (b) of section fifteen hundred {one} TEN of
30 this article, shall be subject to adjustment as the circumstances may
31 require; all other tax surcharges of any such taxpayer, which pursuant
32 to the foregoing provisions of this section would otherwise be payable
33 subsequent to the time such return is required to be filed, shall never-
34 theless be payable at such time. All of the provisions of this article
35 presently applicable are applicable to the tax surcharge imposed by this
36 section.
37 S 5. The section heading of section 1510 of the tax law, as amended by
38 section 7 of part H3 of chapter 62 of the laws of 2003, is amended to
39 read as follows:
40 {Additional franchise} FRANCHISE tax on insurance corporations.
41 S 6. Subdivision (a) of section 1510 of the tax law, as amended by
42 section 7 of part H3 of chapter 62 of the laws of 2003, is amended to
43 read as follows:
44 (a) Domestic, foreign and alien insurance corporations except life
45 insurance corporations. {Except as hereinafter provided, for taxable
46 years beginning before January first, two thousand three every} EVERY
47 domestic insurance corporation, every foreign insurance corporation and
48 every alien insurance corporation, other than such corporations trans-
49 acting the business of life insurance, (1) authorized to transact busi-
50 ness in this state under a certificate of authority from the superinten-
51 dent of insurance or (2) which is a risk retention group as defined in
52 subsection (n) of section five thousand nine hundred two of the insur-
53 ance law, shall, for the privilege of exercising corporate franchises or
54 for carrying on business in a corporate or organized capacity within
55 this state, and in addition to any other taxes imposed for such privi-
56 lege, pay a tax on all gross direct premiums, less return premiums ther-
S. 60--A 12 A. 160--A
1 eon, written on risks located or resident in this state. The rate of
2 tax imposed by this subdivision shall be two percent on premiums {writ-
3 ten on or after January first, nineteen hundred seventy-four and before
4 January first, nineteen hundred seventy-five, one and nine-tenths
5 percent on premiums written on or after January first, nineteen hundred
6 seventy-five and before January first, nineteen hundred seventy-six, one
7 and eight-tenths percent on premiums written on or after January first,
8 nineteen hundred seventy-six and before January first, nineteen hundred
9 seventy-eight, one and two-tenths percent on premiums written on or
10 after January first, nineteen hundred seventy-eight and before January
11 first, nineteen hundred ninety-two and one and three-tenths percent on
12 premiums written on and after such date. Provided, however, that the
13 rate of tax imposed by this subdivision on all gross direct premiums,
14 less return premiums thereon, for accident and health insurance
15 contracts shall be one and six-tenths percent for such premiums written
16 on or after January first, nineteen hundred seventy-four and before
17 January first, nineteen hundred seventy-eight, and one percent for such
18 premiums written on or after January first, nineteen hundred seventy-
19 eight}.
20 S 7. Paragraph 1 of subdivision (b) of section 1510 of the tax law, as
21 amended by section 7 of part H3 of chapter 62 of the laws of 2003, is
22 amended to read as follows:
23 (1) Except as hereinafter provided, every domestic life insurance
24 corporation, and every foreign and alien life insurance corporation
25 authorized to transact business in this state under a certificate of
26 authority from the superintendent of insurance, shall, for the privilege
27 of exercising corporate franchises or for carrying on business in a
28 corporate or organized capacity within this state, and in addition to
29 any other taxes imposed for such privilege, pay a tax on all gross
30 direct premiums, less return premiums thereon, received in cash or
31 otherwise on risks resident in this state, including supplemental
32 contracts for total and permanent disability benefits and accidental
33 death benefits. The rate of such tax shall be {(i) one and six-tenths}
34 TWO percent on such premiums {received on or after January first, nine-
35 teen hundred seventy-four and before January first, nineteen hundred
36 seventy-eight, (ii) one percent on such premiums received on or after
37 January first, nineteen hundred seventy-eight and before January first,
38 nineteen hundred eighty-seven, (iii) eight-tenths percent on such premi-
39 ums received on or after January first, nineteen hundred eighty-seven
40 and before January first, nineteen hundred ninety-eight, and (iv)
41 seven-tenths percent on such premiums received on or after January
42 first, nineteen hundred ninety-eight}.
43 S 8. Section 1510 of the tax law is amended by adding a new subdivi-
44 sion (d) to read as follows:
45 (D) IN NO EVENT CAN THE TAX IMPOSED UNDER THIS SECTION BE LESS THAN
46 TWO HUNDRED FIFTY DOLLARS.
47 S 9. Paragraph 2 of subdivision (e) of section 1511 of the tax law, as
48 amended by section 8 of part H3 of chapter 62 of the laws of 2003, is
49 amended to read as follows:
50 (2) In no event shall the credit herein provided for be allowed in an
51 amount which will reduce the tax payable to less than the minimum tax
52 fixed by {paragraph four of subdivision (a) of section fifteen hundred
53 two of this article or section fifteen hundred two-a of this article,
54 whichever is applicable} SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN
55 OF THIS ARTICLE. If, however, the amount of credit allowable under this
56 subdivision for any taxable year reduces the tax to such amount, any
S. 60--A 13 A. 160--A
1 amount of credit not deductible in such taxable year may be carried over
2 to the following year or years and may be deducted from the taxpayer`s
3 tax for such year or years.
4 S 10. Subparagraph (A) of paragraph 3 and paragraph 5 of subdivision
5 (f) of section 1511 of the tax law, subparagraph (A) of paragraph 3 as
6 amended by chapter 803 of the laws of 1985 and paragraph 5 as amended by
7 section 9 of part H3 of chapter 62 of the laws of 2003, are amended to
8 read as follows:
9 (A) For each calendar year for which a credit has been authorized
10 pursuant to section seven thousand seven hundred twelve of the insurance
11 law, the commissioner of taxation and finance shall determine the total
12 tax liability of all life insurance corporations under this article,
13 {other than under section fifteen hundred five-a of this article,}
14 before the application of any credits allowed pursuant to this section,
15 for taxable years beginning in such calendar year. Such total tax
16 liability shall be published in the state register on or before the
17 thirtieth day of September of the next succeeding calendar year.
18 (5) No credit allowed pursuant to this subdivision shall reduce the
19 tax payable by any taxpayer under this article for any taxable year to
20 an amount less than the minimum tax fixed by {paragraph four of subdivi-
21 sion (a) of section fifteen hundred two of this article or section
22 fifteen hundred two-a of this article, whichever is applicable} SUBDIVI-
23 SION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE.
24 S 11. The closing paragraph of paragraph 4 and paragraph 5 of subdivi-
25 sion (g) of section 1511 of the tax law, the closing paragraph of para-
26 graph 4 as amended by section 10 and paragraph 5 as amended by section
27 11 of part H3 of chapter 62 of the laws of 2003, are amended to read as
28 follows:
29 Provided, further, however, that the credit provided for herein with
30 respect to the taxable year, and carryovers of such credit to the taxa-
31 ble year, deducted from the tax otherwise due, may not, in the aggre-
32 gate, exceed fifty percent of {(i) in the case of taxpayers subject to
33 tax under subdivision (b) of section fifteen hundred ten of this arti-
34 cle, the lesser of (I) the limitation on tax computed pursuant to subdi-
35 vision (a) of section fifteen hundred five, or (II) the greater of the
36 sum of the taxes imposed under sections fifteen hundred one and fifteen
37 hundred ten or the amount of tax computed pursuant to subdivision (b) of
38 section fifteen hundred five, or (ii) for all other insurance corpo-
39 rations,} the tax imposed under section fifteen hundred {two-a} TEN of
40 this article, computed without regard to any credit provided for under
41 this article.
42 (5) The credit or carryovers of such credit allowed under this subdi-
43 vision for any taxable year shall not, in the aggregate, reduce the tax
44 due for such year to less than the minimum tax fixed by {paragraph four
45 of subdivision (a) of section fifteen hundred two of this article or by
46 section fifteen hundred two-a of this article, whichever is applicable}
47 SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. Howev-
48 er, if the amount of credit or carryovers of such credit, or both,
49 allowed under this subdivision for any taxable year reduces the tax to
50 such amount, or if any part of the credit or carryovers of such credit
51 may not be deducted from the tax otherwise due by reason of the final
52 sentence in paragraph four {hereof} OF THIS SUBDIVISION, any amount of
53 credit or carryovers of such credit thus not deductible in such taxable
54 year may be carried over to the following year or years and may be
55 deducted from the taxpayer`s tax for such year or years.
S. 60--A 14 A. 160--A
1 S 12. Paragraphs 2 and 3 of subdivision (h) of section 1511 of the tax
2 law, paragraph 2 as amended by section 12 of part H3 of chapter 62 of
3 the laws of 2003 and paragraph 3 as amended by chapter 708 of the laws
4 of 1993, are amended to read as follows:
5 (2) The credit and carryover of such credit allowed under this subdi-
6 vision for any taxable year shall not, in the aggregate, reduce the tax
7 due for such year to less than the minimum fixed by {paragraph four of
8 subdivision (a) of section fifteen hundred two of this article or by
9 section fifteen hundred two-a of this article, whichever is applicable}
10 SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. Howev-
11 er, if the amount of credit or carryovers of such credit, or both,
12 allowed under this subdivision for any taxable year reduces the tax to
13 such amount, or if any part of the credit or carryovers of such credit
14 may not be deducted from the tax otherwise due by reason of the final
15 sentence of this paragraph, any amount of credit or carryovers of such
16 credit thus not deductible in such taxable year may be carried over to
17 the following year or years and may be deducted from the tax for such
18 year or years. In addition, the amount of such credit, and carryovers of
19 such credit to the taxable year, deducted from the tax otherwise due may
20 not, in the aggregate, exceed fifty percent of {(i) in the case of
21 taxpayers subject to tax under subdivision (b) of section fifteen
22 hundred ten of this article, the lesser of (I) the limitation on tax
23 computed pursuant to subdivision (a) of section fifteen hundred five, or
24 (II) the greater of the sum of the taxes imposed under sections fifteen
25 hundred one and fifteen hundred ten or the amount of tax computed pursu-
26 ant to subdivision (b) of section fifteen hundred five, or (ii) for all
27 other insurance corporations,} the tax imposed under section fifteen
28 hundred {two-a} TEN of this article, computed without regard to any
29 credit provided for under this article.
30 {(3) Where the stock, partnership interest or other ownership interest
31 arising from a qualified investment as described in subparagraphs (A)
32 and (B) of paragraph one of this subdivision is disposed of, the taxpay-
33 er`s entire net income shall be computed, pursuant to regulations
34 promulgated by the commissioner, so as to properly reflect the reduced
35 cost thereof arising from the application of the credit provided for
36 herein.}
37 S 13. Paragraph 5 of subdivision (j) of section 1511 of the tax law,
38 as amended by section 13 of part H3 of chapter 62 of the laws of 2003,
39 is amended to read as follows:
40 (5) Carryover. The credit and carryovers of such credit allowed under
41 this subdivision for any taxable year shall not, in the aggregate,
42 reduce the tax due for such year to less than the minimum tax fixed by
43 {paragraph four of subdivision (a) of section fifteen hundred two of
44 this article or by section fifteen hundred two-a of this article, which-
45 ever is applicable} SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF
46 THIS ARTICLE. However, if the amount of credit or carryovers of such
47 credit, or both, allowed under this subdivision for any taxable year
48 reduces the tax to such amount, then any amount of credit or carryovers
49 of such credit thus not deductible in such taxable year may be carried
50 over to the following year or years and may be deducted from the taxpay-
51 er`s tax for such year or years.
52 S 14. Paragraph 3 of subdivision (k) of section 1511 of the tax law,
53 as amended by section 14 of part H3 of chapter 62 of the laws of 2003,
54 is amended to read as follows:
55 (3) No credit allowable pursuant to this subdivision shall reduce the
56 tax payable under this article to less than the minimum tax fixed by
S. 60--A 15 A. 160--A
1 {paragraph four of subdivision (a) of section fifteen hundred two of
2 this article or by section fifteen hundred two-a of this article, which-
3 ever is applicable} SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF
4 THIS ARTICLE. If, however, the amount of credit allowable under this
5 subdivision for any taxable year reduces the tax to such amount, any
6 amount of credit not taken in such taxable year may be carried over to
7 the following year or years and may be deducted from the taxpayer`s tax
8 for such year or years.
9 S 15. Subdivision 1 of section 1511 of the tax law, as amended by
10 section 15 of part H3 of chapter 62 of the laws of 2003, is amended to
11 read as follows:
12 (l) Credit for purchase of an automated external defibrillator. A
13 taxpayer shall be allowed a credit as hereinafter provided, against the
14 tax imposed by this article for the purchase, other than for resale, of
15 an automated external defibrillator, as such term is defined in section
16 three thousand-b of the public health law. The amount of the credit
17 shall be the cost to the taxpayer of automated external defibrillators
18 purchased during the taxable year, such credit not to exceed five
19 hundred dollars with respect to each unit purchased. The credit allowed
20 under this subdivision for any taxable year shall not reduce the tax due
21 for such year to less than the minimum tax fixed by {paragraph four of
22 subdivision (a) of section fifteen hundred two of this article or by
23 section fifteen hundred two-a of this article, whichever is applicable}
24 SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE.
25 S 16. Paragraph 2 of subdivision (m) of section 1511 of the tax law,
26 as amended by section 16 of part H3 of chapter 62 of the laws of 2003,
27 is amended to read as follows:
28 (2) In no event shall the credit herein provided for be allowed in an
29 amount which will reduce the tax payable to less than the minimum tax
30 fixed by {paragraph four of subdivision (a) of section fifteen hundred
31 two of this article or by section fifteen hundred two-a of this article,
32 whichever is applicable} SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN
33 OF THIS ARTICLE. If, however, the amount of credit allowable under this
34 subdivision for any taxable year reduces the tax to such amount, any
35 amount of credit not deductible in such taxable year may be carried over
36 to the following year or years and may be deducted from the taxpayer`s
37 tax for such year or years.
38 S 17. Paragraph 2 of subdivision (n) of section 1511 of the tax law,
39 as amended by section 17 of part H3 of chapter 62 of the laws of 2003,
40 is amended to read as follows:
41 (2) Application of credit. The credit and carryovers of such credit
42 allowed under this subdivision for any taxable year shall not, in the
43 aggregate, reduce the tax due for such year to less than the minimum tax
44 fixed by {paragraph four of subdivision (a) of section fifteen hundred
45 two of this article or by section fifteen hundred two-a of this article,
46 whichever is applicable} SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN
47 OF THIS ARTICLE. However, if the amount of credit or carryovers of such
48 credit, or both, allowed under this subdivision for any taxable year
49 reduces the tax to such amount, then any amount of credit or carryovers
50 of such credit thus not deductible in such taxable year may be carried
51 over to the following year or years and may be deducted from the taxpay-
52 er`s tax for such year or years.
53 S 18. Paragraph 2 of subdivision (o) of section 1511 of the tax law,
54 as amended by section 18 of part H3 of chapter 62 of the laws of 2003,
55 is amended to read as follows:
S. 60--A 16 A. 160--A
1 (2) Carryover. The credit and carryovers of such credit allowed under
2 this subdivision for any taxable year shall not, in the aggregate,
3 reduce the tax due for such year to less than the minimum tax fixed by
4 {paragraph four of subdivision (a) of section fifteen hundred two of
5 this article or by section fifteen hundred two-a of this article, which-
6 ever is applicable} SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF
7 THIS ARTICLE. However, if the amount of credit or carryovers of such
8 credit, or both, allowed under this subdivision for any taxable year
9 reduces the tax to such amount, then any amount of credit or carryovers
10 of such credit thus not deductible in such taxable year may be carried
11 over to the following year or years and may be deducted from the taxpay-
12 er`s tax for such year or years.
13 S 19. Paragraph 2 of subdivision (p) of section 1511 of the tax law,
14 as amended by section 19 of part H3 of chapter 62 of the laws of 2003,
15 is amended to read as follows:
16 (2) Application of credit. The credit allowed under this subdivision
17 for any taxable year shall not reduce the tax due for such year to less
18 than the minimum tax fixed by {paragraph four of subdivision (a) of
19 section fifteen hundred two of this article or by section fifteen
20 hundred two-a of this article, whichever is applicable} SUBDIVISION (D)
21 OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, if the amount
22 of credit allowed under this subdivision for any taxable year reduces
23 the tax to such amount, then any amount of credit thus not deductible in
24 such taxable year shall be treated as an overpayment of tax to be cred-
25 ited or refunded in accordance with the provisions of section ten
26 hundred eighty-six of this chapter. Provided, however, the provisions of
27 subsection (c) of section ten hundred eighty-eight of this chapter
28 notwithstanding, no interest shall be paid thereon.
29 S 20. Paragraph 4 of subdivision (q) of section 1511 of the tax law,
30 as amended by section 20 of part H3 of chapter 62 of the laws of 2003,
31 is amended to read as follows:
32 (4) Except as otherwise provided in this paragraph, the credit allowed
33 under this subdivision for any taxable year shall not reduce the tax due
34 for such year to less than the amount fixed as a minimum tax by {para-
35 graph four of subdivision (a) of section fifteen hundred two of this
36 article or by section fifteen hundred two-a of this article, whichever
37 is applicable} SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS
38 ARTICLE. However, if the amount of credit allowable under this subdivi-
39 sion for any taxable year reduces the tax to such amount, any amount of
40 credit allowed for a taxable year may be carried over to the fifteen
41 taxable years next following such taxable year and may be deducted from
42 the taxpayer`s tax for such year or years. In lieu of such carryover,
43 any such taxpayer which qualifies as a new business under paragraph
44 seven of this subdivision may elect to treat the amount of such carry-
45 over as an overpayment of tax to be credited or refunded in accordance
46 with the provisions of section one thousand eighty-six of this chapter,
47 provided, however, the provisions of subsection (c) of section one thou-
48 sand eighty-eight of this chapter notwithstanding no interest shall be
49 paid thereon.
50 S 21. Paragraph 2 of subdivision (r) of section 1511 of the tax law,
51 as amended by section 21 of part H3 of chapter 62 of the laws of 2003,
52 is amended to read as follows:
53 (2) Application of credit. The credit allowed under this subdivision
54 for any taxable year shall not reduce the tax due for such year to less
55 than the minimum tax fixed by {paragraph four of subdivision (a) of
56 section fifteen hundred two of this article or by section fifteen
S. 60--A 17 A. 160--A
1 hundred two-a of this article, whichever is applicable} SUBDIVISION (D)
2 OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, if the amount
3 of credit allowed under this subdivision for any taxable year reduces
4 the tax to such amount, then any amount of credit thus not deductible in
5 such taxable year shall be treated as an overpayment of tax to be cred-
6 ited or refunded in accordance with the provisions of section ten
7 hundred eighty-six of this chapter. Provided, however, the provisions of
8 subsection (c) of section ten hundred eighty-eight of this chapter
9 notwithstanding, no interest shall be paid thereon.
10 S 22. Paragraph 2 of subdivision (s) of section 1511 of the tax law,
11 as amended by section 22 of part H3 of chapter 62 of the laws of 2003,
12 is amended to read as follows:
13 (2) Application of credit. The credit allowed under this subdivision
14 for any taxable year shall not reduce the tax due for such year to less
15 than the minimum tax fixed by {paragraph four of subdivision (a) of
16 section fifteen hundred two of this article or by section fifteen
17 hundred two-a of this article, whichever is applicable} SUBDIVISION (D)
18 OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE.
19 S 23. Paragraph 2 of subdivision (u) of section 1511 of the tax law,
20 as added by section 11 of part H of chapter 1 of the laws of 2003, is
21 amended to read as follows:
22 (2) Application of credit. The credit allowed under this subdivision
23 for any taxable year shall not reduce the tax due for such year to less
24 than the minimum fixed by {paragraph four of subdivision (a) of section
25 fifteen hundred two of this article} SUBDIVISION (D) OF SECTION FIFTEEN
26 HUNDRED TEN OF THIS ARTICLE. However, if the amount of credits allowed
27 under this subdivision for any taxable year reduces the tax to such
28 amount, any amount of credit thus not deductible in such taxable year
29 shall be treated as an overpayment of tax to be credited or refunded in
30 accordance with the provisions of section ten hundred eighty-six of this
31 chapter. Provided, however, the provisions of subsection (c) of section
32 ten hundred eighty-eight of this chapter notwithstanding, no interest
33 shall be paid thereon.
34 S 24. Paragraph 2 of subdivision (v) of section 1511 of the tax law,
35 as added by section 18 of part H of chapter 1 of the laws of 2003, is
36 amended to read as follows:
37 (2) Application of credit. The credit allowed under this subdivision
38 for any taxable year shall not reduce the tax due for such year to less
39 than the minimum tax fixed by {paragraph four of subdivision (a) of
40 section fifteen hundred two of this article} SUBDIVISION (D) OF SECTION
41 FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, if the amount of credit
42 allowed under this subdivision for any taxable year reduces the tax to
43 such amount, any amount of credit thus not deductible in such taxable
44 year shall be treated as an overpayment of tax to be credited or
45 refunded in accordance with the provisions of section ten hundred eight-
46 y-six of this chapter. Provided, however, the provisions of subsection
47 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
48 no interest shall be paid thereon.
49 S 25. Paragraph 2 of subdivision (w) of section 1511 of the tax law,
50 as added by section 29 of part H of chapter 1 of the laws of 2003, is
51 amended to read as follows:
52 (2) Application of credit. The credit allowed under this subdivision
53 for any taxable year shall not reduce the tax due for such year to less
54 than the minimum fixed by {paragraph four of subdivision (a) of section
55 fifteen hundred two or section fifteen hundred two-a of this article}
56 SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However,
S. 60--A 18 A. 160--A
1 if the amount of credits allowed under this subdivision for any taxable
2 year reduces the tax to such amount, any amount of credit thus not
3 deductible in such taxable year shall be treated as an overpayment of
4 tax to be credited or refunded in accordance with the provisions of
5 section one thousand eighty-six of this chapter. Provided, however, the
6 provisions of subsection (c) of section one thousand eighty-eight of
7 this chapter notwithstanding, no interest shall be paid thereon.
8 S 26. Paragraph 2 of subdivision (x) of section 1511 of the tax law,
9 as added by chapter 537 of the laws of 2005, is amended to read as
10 follows:
11 (2) Application of credit. The credit allowed under this subdivision
12 for any taxable year shall not reduce the tax due for such year to less
13 than the minimum fixed by {paragraph four of subdivision (a) of section
14 fifteen hundred two or section fifteen hundred two-a of this article}
15 SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However,
16 if the amount of credits allowed under this subdivision for any taxable
17 year reduces the tax to such amount, any amount of credit thus not
18 deductible in such taxable year shall be treated as an overpayment of
19 tax to be credited or refunded in accordance with the provisions of
20 section one thousand eighty-six of this chapter. Provided, however, the
21 provisions of subsection (c) of section one thousand eighty-eight of
22 this chapter notwithstanding, no interest shall be paid thereon.
23 S 27. Paragraph 3 of subdivision (x) of section 1511 of the tax law,
24 as added by chapter 446 of the laws of 2005, is amended to read as
25 follows:
26 (3) Application of credit. The credit allowed under this subdivision
27 for any taxable year shall not reduce the tax due for such year to less
28 than the minimum tax fixed by {paragraph four of subdivision (a) of
29 section fifteen hundred two of this article or by section fifteen
30 hundred two-a of this article, whichever is applicable} SUBDIVISION (D)
31 OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, if the amount
32 of credit allowed under this subdivision for any taxable year reduces
33 the tax to such amount, any amount of credit thus not deductible in such
34 taxable year may be carried over to the following year or years and may
35 be deducted from the taxpayer`s tax for such year or years.
36 S 28. Subdivision (b) of section 1513 of the tax law, as amended by
37 section 25 of part H3 of chapter 62 of the laws of 2003, is amended to
38 read as follows:
39 (b) Definition of estimated tax and estimated tax surcharge. The terms
40 "estimated tax" and "estimated tax surcharge" mean the amounts which the
41 taxpayer estimates to be the taxes imposed by {sections fifteen hundred
42 one, fifteen hundred two-a and} SECTION fifteen hundred ten of this
43 article or the tax surcharge imposed by section fifteen hundred five-a
44 of this article, respectively, for the current taxable year, less the
45 sum of any credits which it estimates to be allowable against such taxes
46 or tax surcharge, respectively.
47 S 29. Subdivisions (e) and (f) of section 1514 of the tax law, subdi-
48 vision (e) as amended by chapter 166 of the laws of 1991 and subdivision
49 (f) as amended by section 26 of part H3 of chapter 62 of the laws of
50 2003, are amended to read as follows:
51 (e) Interest on certain installments based on the preceding year`s
52 tax. Notwithstanding the provisions of section one thousand eighty-
53 eight of this chapter or section sixteen of the state finance law, if an
54 amount paid pursuant to subdivision (a) of this section exceeds the tax
55 or tax surcharge, respectively, shown on the return required to be filed
56 by the taxpayer for the taxable year during which such amount was paid,
S. 60--A 19 A. 160--A
1 interest shall be allowed and paid on the amount by which the amount so
2 paid pursuant to SUCH subdivision (a) exceeds such tax or tax surcharge,
3 at the overpayment rate set by the commissioner of taxation and finance
4 pursuant to subdivision (e) of section one thousand ninety-six or, if no
5 rate is set, at the rate of six percent per annum, from the date of
6 payment of the amount so paid pursuant to such subdivision (a) to the
7 fifteenth day of the third month following the close of the taxable
8 year, provided, however, that no interest shall be allowed or paid under
9 this subdivision if the amount thereof is less than one dollar {or if
10 such interest becomes payable solely because of a loss described in
11 paragraph four of subdivision (b) of section fifteen hundred three}.
12 (f) The preceding year`s tax defined. As used in this section, "the
13 preceding year`s tax" means{, for taxpayers subject to tax under subdi-
14 vision (b) of section fifteen hundred ten of this article, the taxes
15 imposed upon the taxpayer by sections fifteen hundred one and fifteen
16 hundred ten of this article from the preceding taxable year or as other-
17 wise determined by subdivision (b) of section fifteen hundred five of
18 this article, and for taxpayers subject to tax under section fifteen
19 hundred two-a of this article, the tax imposed upon the taxpayer by such
20 section fifteen hundred two-a of this article from the preceding year,}
21 THE TAX IMPOSED ON THE TAXPAYER BY THIS ARTICLE WITHOUT REGARD TO THE
22 TAX SURCHARGE IMPOSED BY SECTION FIFTEEN HUNDRED FIVE-A, or for purposes
23 of computing the first installment of estimated tax when an application
24 has been filed for extension of the time for filing the return required
25 to be filed for such preceding taxable year, the amount properly esti-
26 mated pursuant to paragraph one of subdivision (b) of section fifteen
27 hundred sixteen of this article as the tax imposed upon the taxpayer for
28 such taxable year.
29 S 30. Paragraph 1 of subdivision (e) of section 1515 of the tax law,
30 as amended by chapter 770 of the laws of 1992, is amended to read as
31 follows:
32 (1) {If} FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOU-
33 SAND NINE, IF the amount of the life insurance company taxable income
34 (which shall include, in the case of a stock life insurance company
35 which has an existing policyholders surplus account, the amount of
36 direct and indirect distributions during the taxable year to sharehold-
37 ers from such account), taxable income of a partnership or taxable
38 income, as the case may be, or alternative minimum taxable income for
39 any year of any taxpayer as returned to the United States treasury
40 department is changed or corrected by the commissioner of internal
41 revenue or other officer of the United States or other competent author-
42 ity, such taxpayer shall report such change or corrected taxable income
43 or alternative minimum taxable income within ninety days (or one hundred
44 twenty days, in the case of a taxpayer making a combined return under
45 this article for such year) after the final determination of such change
46 or correction or as required by the commissioner, and shall concede the
47 accuracy of such determination or state wherein it is erroneous. Any
48 taxpayer filing an amended return with such department shall also file
49 within ninety days (or one hundred twenty days, in the case of a taxpay-
50 er making a combined return under this article for such year) thereafter
51 an amended return with the commissioner which shall contain such infor-
52 mation as the commissioner shall require. The allowance of a tentative
53 carryback adjustment based upon a net operating loss carryback or net
54 capital loss carryback pursuant to section sixty-four hundred eleven of
55 the internal revenue code or upon an operations loss carryback pursuant
S. 60--A 20 A. 160--A
1 to section eight hundred ten of the internal revenue code, shall be
2 treated as a final determination for purposes of this subdivision.
3 S 31. Subdivisions (f) and (g) of section 1515, subdivision (g) of
4 section 1518 and section 1520 of the tax law are REPEALED.
5 S 32. Paragraph 1, clause (ii) of subparagraph (B) of paragraph 2 and
6 subparagraph (A) of paragraph 3 of subdivision (f) of section 16 of the
7 tax law, as amended by section 14 of part CC of chapter 85 of the laws
8 of 2002, are amended to read as follows:
9 (1) General. The tax factor shall be, in the case of article nine-A of
10 this chapter, the larger of the amounts of tax determined for the taxa-
11 ble year under paragraphs (a) and (c) of subdivision one of section two
12 hundred ten of such article. The tax factor shall be, in the case of
13 article twenty-two of this chapter, the tax determined for the taxable
14 year under subsections (a) through (d) of section six hundred one of
15 such article. The tax factor shall be, in the case of article thirty-two
16 of this chapter, the larger of the amounts of tax determined for the
17 taxable year under subsection (a) and paragraph two of subsection (b) of
18 section fourteen hundred fifty-five of such article. The tax factor
19 shall be, in the case of article thirty-three of this chapter, the
20 {larger of the amounts} AMOUNT of tax determined for the taxable year
21 under {paragraphs one and three of} subdivision (a) OR (B) of section
22 fifteen hundred {two} TEN of such article.
23 (ii) For purposes of article nine-A{,} OR thirty-two {or thirty-three}
24 of this chapter, the term "partner`s income from the partnership" means
25 partnership items of income, gain, loss and deduction, and New York
26 modifications thereto, entering into entire net income, minimum taxable
27 income, alternative entire net income or entire net income plus compen-
28 sation and the term "partner`s entire income" means entire net income,
29 minimum taxable income, alternative entire net income or entire net
30 income plus compensation, allocated within the state. For purposes of
31 article twenty-two of this chapter, the term "partner`s income from the
32 partnership" means partnership items of income, gain, loss and
33 deduction, and New York modifications thereto, entering into New York
34 adjusted gross income, and the term "partner`s entire income" means New
35 York adjusted gross income.
36 (A) Where the taxpayer is a qualified empire zone enterprise and is
37 required or permitted to make a return or report on a combined basis
38 under article nine-A{,} OR thirty-two {or thirty-three} of this chapter,
39 the taxpayer`s tax factor shall be the amount determined in paragraph
40 one of this subdivision which is attributable to the income of the qual-
41 ified empire zone enterprise. Such attribution shall be made in accord-
42 ance with the ratio of the qualified empire zone enterprise`s income
43 allocated within the state to the combined group`s income, or in accord-
44 ance with such other methods as the commissioner may prescribe as
45 providing an apportionment which reasonably reflects the portion of the
46 combined group`s tax attributable to the income of the qualified empire
47 zone enterprise. In no event may the ratio so determined exceed 1.0.
48 S 33. Subparagraph (A) of paragraph 3 of subsection (d) of section
49 1085 of the tax law, as amended by chapter 170 of the laws of 1994, is
50 amended to read as follows:
51 (A) General. An amount equal to ninety-one percent of the tax for the
52 taxable year computed on all items entering into the computation of the
53 tax or taxes of the taxpayer for the taxable year under article nine,
54 nine-A{,} OR thirty-two {or thirty-three} of this chapter. For purposes
55 of computing the tax, all items of receipts, income and expenses shall
56 be placed on an annualized basis--
S. 60--A 21 A. 160--A
1 (i) for the first three months of the taxable year, in the case of the
2 installment required to be paid in the sixth month,
3 (ii) for the first six months of the taxable year, in the case of the
4 installment required to be paid in the ninth month, and
5 (iii) for the first nine months of the taxable year, in the case of
6 the installment required to be paid in the twelfth month.
7 S 34. Clause (i) of subparagraph (A) of paragraph 4 of subsection (d)
8 of section 1085 of the tax law, as amended by chapter 57 of the laws of
9 1993, is amended to read as follows:
10 (i) take the items entering into the computation of the tax or taxes
11 of the taxpayer for the taxable year under article nine, nine-A{,} OR
12 thirty-two {or thirty-three} of this chapter, for all months during the
13 taxable year preceding the filing month,
14 S 35. Paragraph 1 of subsection (e) of section 1085 of the tax law, as
15 amended by section 28 of part H3 of chapter 62 of the laws of 2003, is
16 amended to read as follows:
17 (1) Paragraphs (1) and (2) of subsection (d) of this section shall not
18 apply in the case of any corporation (or any predecessor corporation)
19 which had entire net income, or the portion thereof allocated within the
20 state, of one million dollars or more for any taxable year during the
21 three taxable years immediately preceding the taxable year involved;
22 provided, however, that in the case of a corporation subject to tax
23 under section fifteen hundred {two-a} TEN of this chapter, paragraphs
24 (1) and (2) of subsection (d) of this section shall not apply if {such
25 corporation had entire net income, or the portion thereof allocated
26 within the state, of one million dollars or more for any of the three
27 taxable years immediately preceding the taxable year involved, or if}
28 the direct premiums subject to tax under section fifteen hundred {two-a}
29 TEN of this chapter of the corporation for any of such three preceding
30 taxable years {beginning on or after January first, two thousand three}
31 equals or exceeds three million seven hundred fifty thousand dollars.
32 S 36. This act shall take effect immediately and apply to taxable
33 years beginning on or after January 1, 2009; provided however, that
34 section four of this act shall apply to taxable years ending after
35 December 31, 2008.
36 PART E
37 Section 1. The tax law is amended by adding a new section 171-t to
38 read as follows:
39 S 171-T. RECIPROCAL OFFSET AGREEMENTS WITH THE UNITED STATES OR OTHER
40 STATES. (1) FOR THE PURPOSES OF THIS SECTION, THE DEFINITIONS PROVIDED
41 FOR IN SECTION ONE HUNDRED SEVENTY-ONE-N OF THIS ARTICLE APPLY TOGETHER
42 WITH THE FOLLOWING:
43 (A) "CLAIMANT" MEANS ANY STATE OR THE UNITED STATES THAT ENTERS INTO A
44 RECIPROCAL AGREEMENT UNDER THIS SECTION OR REQUESTS APPLICATION OF A
45 VENDOR PAYMENT OR AN OVERPAYMENT TO A DEBT.
46 (B) "DEBT" MEANS A "TAX DEBT" AS DEFINED IN SECTION ONE HUNDRED SEVEN-
47 TY-ONE-N OF THIS ARTICLE AND ANY OTHER PAST DUE LEGALLY ENFORCEABLE
48 OBLIGATION OWED TO A STATE OR THE UNITED STATES, WHICH ARISES FROM (I)
49 AN ENFORCEABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION THAT IS NO
50 LONGER SUBJECT TO JUDICIAL REVIEW, OR (II) AN ENFORCEABLE DETERMINATION
51 OF AN ADMINISTRATIVE BODY THAT IS NO LONGER SUBJECT TO ADMINISTRATIVE OR
52 JUDICIAL REVIEW, OR (III) A DETERMINATION THAT HAS BECOME FINAL OR
53 FINALLY AND IRREVOCABLY FIXED AND NO LONGER SUBJECT TO ADMINISTRATIVE OR
54 JUDICIAL REVIEW.
S. 60--A 22 A. 160--A
1 (C) "DEBTOR" MEANS A PERSON WHO OWES A DEBT.
2 (D) "PERSON" HAS THE SAME MEANING AS THAT TERM HAS IN SUBDIVISION (A)
3 OF SECTION ELEVEN HUNDRED ONE OF THIS CHAPTER.
4 (E) "VENDOR PAYMENT" MEANS ANY PAYMENT, OTHER THAN AN OVERPAYMENT,
5 MADE BY A STATE OR THE UNITED STATES TO ANY PERSON, AND INCLUDES BUT IS
6 NOT LIMITED TO ANY EXPENSE REIMBURSEMENT TO AN EMPLOYEE OF THE STATE OR
7 THE UNITED STATES; BUT DOES NOT INCLUDE A PERSON`S SALARY, WAGES OR
8 PENSION.
9 (2) THE COMMISSIONER MAY, IN HIS OR HER DISCRETION, ENTER INTO A
10 COLLECTION AND OFFSET AGREEMENT WITH ANOTHER STATE OR WITH THE UNITED
11 STATES SECRETARY OF THE TREASURY THROUGH THE INTERNAL REVENUE SERVICE OR
12 THE FINANCIAL MANAGEMENT SERVICE OF THE DEPARTMENT OF THE TREASURY OF
13 THE UNITED STATES UNDER WHICH THE COMMISSIONER, ON BEHALF OF THE STATE
14 OF NEW YORK, MAY, IN HIS OR HER DISCRETION, AGREE TO PAY TO A CLAIMANT
15 OWED A DEBT BY A TAXPAYER OR OTHER PERSON THE WHOLE OR PART OF AN OVER-
16 PAYMENT OR A VENDOR PAYMENT OWED BY THE STATE TO THAT TAXPAYER OR OTHER
17 PERSON, PROVIDED THE CLAIMANT GRANTS SUBSTANTIALLY SIMILAR PRIVILEGES TO
18 THIS STATE. HOWEVER, THE UNITED STATES WILL NOT BE REQUIRED UNDER THIS
19 SECTION TO OFFSET TAX OVERPAYMENTS OWED BY IT EXCEPT TO THE EXTENT THAT
20 IT AGREES TO DO SO. AN AGREEMENT WITH THE CLAIMANT MUST SPECIFY THAT A
21 TAXPAYER OR ANY PERSON OWED A VENDOR PAYMENT WILL RECEIVE THIRTY DAYS
22 ADVANCE WRITTEN NOTICE OF THE OFFSET AND WILL BE PROVIDED WITH AN OPPOR-
23 TUNITY TO PRESENT WRITTEN OR ORAL EVIDENCE ABOUT THE APPLICATION OF THE
24 OVERPAYMENT OR VENDOR PAYMENT TO THE DEBT. A PROCEEDING FOR JUDICIAL
25 REVIEW OF THE DECISION IN THE MANNER PROVIDED BY ARTICLE SEVENTY-EIGHT
26 OF THE CIVIL PRACTICE LAW AND RULES MAY BE COMMENCED BY A TAXPAYER OR A
27 PERSON OWED A VENDOR PAYMENT WITHIN FOUR MONTHS AFTER A COPY OF A DECI-
28 SION ADVERSE TO THE TAXPAYER OR THAT PERSON IS MAILED TO THE TAXPAYER OR
29 THAT PERSON. ARTICLE FORTY OF THIS CHAPTER DOES NOT APPLY TO ANY HEARING
30 OR PROCEEDING ON WHETHER AN OVERPAYMENT OR VENDOR PAYMENT MAY BE APPLIED
31 TO A DEBT UNDER THIS SECTION. THE REMEDY PROVIDED BY THIS SECTION FOR
32 REVIEW OF HEARINGS AND PROCEEDINGS IS THE EXCLUSIVE REMEDY AVAILABLE TO
33 JUDICIALLY DETERMINE WHETHER AN OVERPAYMENT OR VENDOR PAYMENT MAY BE
34 APPLIED TO A DEBT UNDER THIS SECTION. THE AMOUNT OF A DEBT REMAINING DUE
35 AS CERTIFIED BY A CLAIMANT WILL BE PRIMA FACIE EVIDENCE OF THE CORRECT
36 AMOUNT OF A DEBT.
37 (3) THE COMMISSIONER WILL CALCULATE THE AMOUNT OF AN OVERPAYMENT AND
38 INTEREST THEREON THAT IS TO BE CREDITED AGAINST THE AMOUNT OF A PAST DUE
39 LEGALLY ENFORCEABLE DEBT OWED BY A TAXPAYER WHICH IS CERTIFIED TO THE
40 DEPARTMENT FOR COLLECTION UNDER THIS SECTION USING THE RULES IN SUBDIVI-
41 SION FIVE OF SECTION ONE HUNDRED SEVENTY-ONE-F OF THIS ARTICLE. IF A
42 TAXPAYER OR A PERSON OWES MORE THAN ONE DEBT WHICH IS CERTIFIED TO THE
43 COMMISSIONER FOR COLLECTION UNDER THIS SECTION, ANY OVERPAYMENT OR
44 VENDOR PAYMENT WILL BE CREDITED AGAINST THE DEBTS IN THE ORDER IN WHICH
45 THE DEBTS ACCRUED. A DEBT WILL BE CONSIDERED TO HAVE ACCRUED AT THE TIME
46 AT WHICH THE DEBT BECAME PAST DUE.
47 (4) NOTWITHSTANDING ANY OTHER LAW, THE COMMISSIONER IS AUTHORIZED TO
48 RELEASE TO A CLAIMANT TAXPAYER INFORMATION FOR PURPOSES OF IMPLEMENTING
49 AND ADMINISTERING AN AGREEMENT ENTERED INTO BETWEEN THE CLAIMANT AND
50 THIS STATE UNDER THIS SECTION.
51 S 2. Subdivision 2 of section 171-p of the tax law, as added by
52 section 1 of part BB-1 of chapter 57 of the laws of 2008, is amended to
53 read as follows:
54 (2) The commissioner may implement procedures under which any cost or
55 fee imposed or charged by the United States or any state, with respect
56 to payment or remittance of a taxpayer`s overpayment to satisfy a tax
S. 60--A 23 A. 160--A
1 debt of the taxpayer, must not be credited by the commissioner to
2 payment or satisfaction of the tax debt, must be deemed to be part of
3 the taxpayer`s tax debt, and must be eligible for offset against the
4 taxpayer`s overpayment to the extent permitted by law. THE COMMISSIONER
5 MAY ALSO IMPLEMENT PROCEDURES UNDER WHICH ANY COST OR FEE IMPOSED OR
6 CHARGED BY THE UNITED STATES OR ANY OTHER STATE, WITH RESPECT TO ANY
7 OTHER PAYMENT OR REMITTANCE OF A TAXPAYER`S OVERPAYMENT OR A VENDOR
8 PAYMENT TO SATISFY A DEBT OF THE TAXPAYER OR THE PERSON WHO IS OWED THE
9 VENDOR PAYMENT AS AUTHORIZED BY SECTION ONE HUNDRED SEVENTY-ONE-T OF
10 THIS ARTICLE, MUST NOT BE CREDITED BY THE STATE OF NEW YORK TO PAYMENT
11 OR SATISFACTION OF THE DEBT, MUST BE DEEMED TO BE PART OF THE TAXPAYER`S
12 OR PERSON`S DEBT, AND MUST BE ELIGIBLE FOR OFFSET AGAINST THE TAXPAYER`S
13 OVERPAYMENT OR THE PERSON`S VENDOR PAYMENT TO THE EXTENT PERMITTED BY
14 LAW.
15 S 3. Paragraph (c) of subdivision 1 of section 171-n of the tax law,
16 as added by section 2 of part O of chapter 61 of the laws of 2005, is
17 amended to read as follows:
18 (c) "tax debt" means any past due, legally enforceable tax obligation
19 owed any other state administering that tax, which arises from (i) an
20 enforceable judgment of a court of competent jurisdiction which is no
21 longer subject to judicial review, or (ii) an enforceable determination
22 of an administrative body which is no longer subject to administrative
23 or judicial review, or (iii) an assessment or determination (including
24 self-assessment or self-assessed determination) which has become final
25 or finally and irrevocably fixed and no longer subject to administrative
26 or judicial review{, and which has not been delinquent for more than ten
27 years}; and
28 S 4. This act shall take effect immediately.
29 PART F
30 Section 1. Section 2 of the tax law is amended by adding a new subdi-
31 vision 11 to read as follows:
32 11. THE TERM "OVERCAPITALIZED CAPTIVE INSURANCE COMPANY" MEANS AN
33 ENTITY THAT IS TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION UNDER
34 THE INTERNAL REVENUE CODE (A) MORE THAN FIFTY PERCENT OF THE VOTING
35 STOCK OF WHICH IS OWNED OR CONTROLLED, DIRECTLY OR INDIRECTLY, BY A
36 SINGLE ENTITY THAT IS TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION
37 UNDER THE INTERNAL REVENUE CODE AND NOT EXEMPT FROM FEDERAL INCOME TAX;
38 (B) THAT IS LICENSED AS A CAPTIVE INSURANCE COMPANY UNDER THE LAWS OF
39 THIS STATE OR ANOTHER JURISDICTION; (C) WHOSE BUSINESS INCLUDES PROVID-
40 ING, DIRECTLY AND INDIRECTLY, INSURANCE OR REINSURANCE COVERING THE
41 RISKS OF ITS PARENT AND/OR MEMBERS OF ITS AFFILIATED GROUP; AND (D)
42 FIFTY PERCENT OR LESS OF WHOSE GROSS RECEIPTS FOR THE TAXABLE YEAR
43 CONSIST OF PREMIUMS. FOR PURPOSES OF THIS SUBDIVISION, "AFFILIATED
44 GROUP" HAS THE SAME MEANING AS THAT TERM IS GIVEN IN SECTION 1504 OF THE
45 INTERNAL REVENUE CODE, EXCEPT THAT THE TERM "COMMON PARENT CORPORATION"
46 IN THAT SECTION IS DEEMED TO MEAN ANY PERSON, AS DEFINED IN SECTION 7701
47 OF THE INTERNAL REVENUE CODE; REFERENCES TO "AT LEAST EIGHTY PERCENT" IN
48 SECTION 1504 OF THE INTERNAL REVENUE CODE ARE TO BE READ AS "FIFTY
49 PERCENT OR MORE;" SECTION 1504 OF THE INTERNAL REVENUE CODE IS TO BE
50 READ WITHOUT REGARD TO THE EXCLUSIONS PROVIDED FOR IN SUBSECTION (B) OF
51 THAT SECTION; "PREMIUMS" HAS THE SAME MEANING AS THAT TERM IS GIVEN IN
52 PARAGRAPH ONE OF SUBDIVISION (C) OF SECTION FIFTEEN HUNDRED TEN OF THIS
53 CHAPTER, EXCEPT THAT IT INCLUDES CONSIDERATION FOR ANNUITY CONTRACTS AND
54 EXCLUDES ANY PART OF THE CONSIDERATION FOR INSURANCE, REINSURANCE OR
S. 60--A 24 A. 160--A
1 ANNUITY CONTRACTS THAT DO NOT PROVIDE BONA FIDE INSURANCE, REINSURANCE
2 OR ANNUITY BENEFITS; AND "GROSS RECEIPTS" INCLUDES THE AMOUNTS INCLUDED
3 IN GROSS RECEIPTS FOR PURPOSES OF SECTION 501(C) (15) OF THE INTERNAL
4 REVENUE CODE, EXCEPT THAT THOSE AMOUNTS ALSO INCLUDE ALL PREMIUMS AS
5 DEFINED IN THIS SUBDIVISION.
6 S 2. Paragraph (a) of subdivision 4 of section 211 of the tax law is
7 amended by adding a new subparagraph 7 to read as follows:
8 (7) (I) FOR PURPOSES OF THIS SUBPARAGRAPH, THE TERM "CLOSEST CONTROL-
9 LING STOCKHOLDER" MEANS THE CORPORATION THAT INDIRECTLY OWNS OR CONTROLS
10 OVER FIFTY PERCENT OF THE VOTING STOCK OF AN OVERCAPITALIZED CAPTIVE
11 INSURANCE COMPANY; IS SUBJECT TO TAX UNDER THIS ARTICLE OR ARTICLE THIR-
12 TY-TWO OF THIS CHAPTER, OR IS OTHERWISE REQUIRED TO BE INCLUDED IN A
13 COMBINED RETURN OR REPORT UNDER THIS ARTICLE OR ARTICLE THIRTY-TWO OF
14 THIS CHAPTER; AND IS THE FEWEST TIERS OF CORPORATIONS AWAY IN THE OWNER-
15 SHIP STRUCTURE FROM THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY. THE
16 COMMISSIONER IS AUTHORIZED TO PRESCRIBE BY REGULATION OR PUBLISHED GUID-
17 ANCE THE CRITERIA FOR DETERMINING THE CLOSEST CONTROLLING STOCKHOLDER.
18 (II) AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE INCLUDED IN
19 A COMBINED REPORT WITH THE CORPORATION THAT DIRECTLY OWNS OR CONTROLS
20 OVER FIFTY PERCENT OF THE VOTING STOCK OF THE OVERCAPITALIZED CAPTIVE
21 INSURANCE COMPANY IF THAT CORPORATION IS SUBJECT TO TAX OR REQUIRED TO
22 BE INCLUDED IN A COMBINED REPORT UNDER THIS ARTICLE.
23 (III) IF OVER FIFTY PERCENT OF THE VOTING STOCK OF AN OVERCAPITALIZED
24 CAPTIVE INSURANCE COMPANY IS NOT DIRECTLY OWNED OR CONTROLLED BY A
25 CORPORATION THAT IS SUBJECT TO TAX OR REQUIRED TO BE INCLUDED IN A
26 COMBINED REPORT UNDER THIS ARTICLE, THEN THE OVERCAPITALIZED CAPTIVE
27 INSURANCE COMPANY MUST BE INCLUDED IN A COMBINED RETURN OR REPORT WITH
28 THE CORPORATION THAT IS THE CLOSEST CONTROLLING STOCKHOLDER OF THE OVER-
29 CAPITALIZED CAPTIVE INSURANCE COMPANY. IF THE CLOSEST CONTROLLING STOCK-
30 HOLDER OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS SUBJECT TO
31 TAX OR OTHERWISE REQUIRED TO BE INCLUDED IN A COMBINED REPORT UNDER THIS
32 ARTICLE, THEN THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE
33 INCLUDED IN A COMBINED REPORT UNDER THIS ARTICLE.
34 (IV) IF THE CORPORATION THAT DIRECTLY OWNS OR CONTROLS THE VOTING
35 STOCK OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS DESCRIBED IN
36 SUBPARAGRAPH TWO, THREE, OR FIVE OF THIS PARAGRAPH AS A CORPORATION NOT
37 PERMITTED TO MAKE A COMBINED REPORT, THEN THE PROVISIONS IN CLAUSE (III)
38 OF THIS SUBPARAGRAPH MUST BE APPLIED TO DETERMINE THE CORPORATION IN
39 WHOSE COMBINED RETURN OR REPORT THE OVERCAPITALIZED CAPTIVE INSURANCE
40 COMPANY SHOULD BE INCLUDED. IF, UNDER CLAUSE (III) OF THIS SUBPARAGRAPH,
41 THE CORPORATION THAT IS THE CLOSEST CONTROLLING STOCKHOLDER OF THE OVER-
42 CAPITALIZED CAPTIVE INSURANCE COMPANY IS DESCRIBED IN SUBPARAGRAPH TWO,
43 THREE OR FIVE OF THIS PARAGRAPH AS A CORPORATION NOT PERMITTED TO MAKE A
44 COMBINED RETURN, THEN THAT CORPORATION IS DEEMED NOT TO BE IN THE OWNER-
45 SHIP STRUCTURE OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY, AND THE
46 CLOSEST CONTROLLING STOCKHOLDER WILL BE DETERMINED WITHOUT REGARD TO
47 THAT CORPORATION.
48 (V) IF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS REQUIRED UNDER
49 THIS SUBPARAGRAPH TO BE INCLUDED IN A COMBINED REPORT WITH ANOTHER
50 CORPORATION, AND THAT OTHER CORPORATION IS ALSO REQUIRED TO BE INCLUDED
51 IN A COMBINED REPORT WITH ANOTHER RELATED CORPORATION OR CORPORATIONS
52 UNDER THIS PARAGRAPH, THEN THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY
53 MUST BE INCLUDED IN THAT COMBINED REPORT WITH THOSE CORPORATIONS.
54 (VI) IF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS NOT REQUIRED
55 TO BE INCLUDED IN A COMBINED REPORT WITH ANOTHER CORPORATION UNDER
56 CLAUSE (II) OR (III) OF THIS SUBPARAGRAPH, OR IN A COMBINED RETURN UNDER
S. 60--A 25 A. 160--A
1 THE PROVISIONS OF SUBPARAGRAPH (V) OF PARAGRAPH TWO OF SUBSECTION (F) OF
2 SECTION FOURTEEN HUNDRED SIXTY-TWO OF THIS CHAPTER, THEN THE OVERCAPI-
3 TALIZED CAPTIVE INSURANCE COMPANY IS SUBJECT TO THE OPENING PROVISIONS
4 OF THIS PARAGRAPH AND THE PROVISIONS OF SUBPARAGRAPH FOUR OF THIS PARA-
5 GRAPH. THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE INCLUDED IN
6 A COMBINED REPORT UNDER THIS ARTICLE WITH ANOTHER CORPORATION IF EITHER
7 THE SUBSTANTIAL INTERCORPORATE TRANSACTIONS REQUIREMENT IN THE OPENING
8 PROVISIONS OF THIS PARAGRAPH OR THE INTER-COMPANY TRANSACTIONS OR AGREE-
9 MENT, UNDERSTANDING, ARRANGEMENT OR TRANSACTION REQUIREMENT OF SUBPARA-
10 GRAPH FOUR OF THIS PARAGRAPH IS SATISFIED, AND BOTH MORE THAN FIFTY
11 PERCENT OF THE VOTING STOCK OF THE OVERCAPITALIZED CAPTIVE INSURANCE
12 COMPANY AND SUBSTANTIALLY ALL OF THE CAPITAL STOCK OF THAT OTHER CORPO-
13 RATION ARE OWNED AND CONTROLLED, DIRECTLY OR INDIRECTLY, BY THE SAME
14 CORPORATION.
15 S 3. Subparagraph 1 of paragraph (b) of subdivision 4 of section 211
16 of the tax law, as amended by section 4 of part FF-1 of chapter 57 of
17 the laws of 2008, is amended to read as follows:
18 (1) Tax. (i) In the case of a combined report the tax shall be meas-
19 ured by the combined entire net income, combined minimum taxable income,
20 combined pre-nineteen hundred ninety minimum taxable income or combined
21 capital, of all the corporations included in the report, including any
22 captive REIT {or}, captive RIC OR OVERCAPITALIZED CAPTIVE INSURANCE
23 COMPANY; provided, however, in no event shall the tax measured by
24 combined capital exceed the limitation provided for in paragraph (b) of
25 subdivision one of section two hundred ten of this article.
26 (ii) In the case of a captive REIT or captive RIC required under this
27 subdivision to be included in a combined report, entire net income must
28 be computed as required under subdivision five (in the case of a captive
29 REIT) or subdivision seven (in the case of a captive RIC) of section two
30 hundred nine of this article. However, the deduction under the internal
31 revenue code for dividends paid by the captive REIT or captive RIC to
32 any member of the affiliated group that includes the corporation that
33 directly or indirectly owns over fifty percent of the voting stock of
34 the captive REIT or captive RIC shall not be allowed for taxable years
35 beginning on or after January first, two thousand eight. The term
36 "affiliated group" means "affiliated group" as defined in section
37 fifteen hundred four of the internal revenue code, but without regard to
38 the exceptions provided for in subsection (b) of that section.
39 (III) IN THE CASE OF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY
40 REQUIRED UNDER THIS SUBDIVISION TO BE INCLUDED IN A COMBINED REPORT,
41 ENTIRE NET INCOME MUST BE COMPUTED AS REQUIRED BY SUBDIVISION NINE OF
42 SECTION TWO HUNDRED EIGHT OF THIS ARTICLE.
43 S 4. Subsection (d) of section 1452 of the tax law, as amended by
44 section 5 of part FF-1 of chapter 57 of the laws of 2008, is amended to
45 read as follows:
46 (d) Corporations taxable under article nine-A. Notwithstanding the
47 provisions of this article, all corporations of classes now or hereto-
48 fore taxable under article nine-A of this chapter shall continue to be
49 taxable under article nine-A, except: (1) corporations organized under
50 article five-A of the banking law; (2) corporations subject to article
51 three-A of the banking law, or registered under the federal bank holding
52 company act of nineteen hundred fifty-six, as amended, or registered as
53 a savings and loan holding company (but excluding a diversified savings
54 and loan holding company) under the federal national housing act, as
55 amended, which make a combined return under the provisions of subsection
56 (f) of section fourteen hundred sixty-two; (3) banking corporations
S. 60--A 26 A. 160--A
1 described in paragraph nine of subsection (a) of this section; {and} (4)
2 any captive REIT or captive RIC that is required to be included in a
3 combined return under the provisions of subsection (f) of section four-
4 teen hundred sixty-two of this article; AND (5) ANY OVERCAPITALIZED
5 CAPTIVE INSURANCE COMPANY REQUIRED TO BE INCLUDED IN A COMBINED RETURN
6 UNDER SUBSECTION (F) OF SECTION FOURTEEN HUNDRED SIXTY-TWO OF THIS ARTI-
7 CLE. Provided, however, that a corporation described in paragraph three
8 of this subsection which was subject to the tax imposed by article
9 nine-A of this chapter for its taxable year ending during nineteen
10 hundred eighty-four may, on or before the due date for filing its return
11 (determined with regard to extensions) for its taxable year ending
12 during nineteen hundred eighty-five, make a one time election to contin-
13 ue to be taxable under such article nine-A. Such election shall continue
14 to be in effect until revoked by the taxpayer. In no event shall such
15 election or revocation be for a part of a taxable year.
16 S 5. Paragraph 4 of subsection (m) of section 1452 of the tax law, as
17 added by section 6 of part FF-1 of chapter 57 of the laws of 2008, is
18 amended to read as follows:
19 (4) The provisions of this subsection shall not apply to a captive
20 REIT {or}, a captive RIC OR AN OVERCAPITALIZED CAPTIVE INSURANCE
21 COMPANY.
22 S 6. Paragraph 2 of subsection (f) of section 1462 of the tax law is
23 amended by adding a new subparagraph (vi) to read as follows:
24 (VI) (A) FOR PURPOSES OF THIS SUBPARAGRAPH, THE TERM "CLOSEST CONTROL-
25 LING STOCKHOLDER" MEANS THE CORPORATION THAT INDIRECTLY OWNS OR CONTROLS
26 OVER FIFTY PERCENT OF THE VOTING STOCK OF AN OVERCAPITALIZED CAPTIVE
27 INSURANCE COMPANY, IS SUBJECT TO TAX UNDER THIS ARTICLE OR ARTICLE
28 NINE-A OF THIS CHAPTER OR OTHERWISE REQUIRED TO BE INCLUDED IN A
29 COMBINED RETURN UNDER THIS ARTICLE OR ARTICLE NINE-A OF THIS CHAPTER,
30 AND IS THE FEWEST TIERS OF CORPORATIONS AWAY IN THE OWNERSHIP STRUCTURE
31 FROM THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY. THE COMMISSIONER IS
32 AUTHORIZED TO PRESCRIBE BY REGULATION OR PUBLISHED GUIDANCE THE CRITERIA
33 FOR DETERMINING THE CLOSEST CONTROLLING STOCKHOLDER.
34 (B) AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE INCLUDED IN A
35 COMBINED RETURN WITH THE BANKING CORPORATION OR BANK HOLDING COMPANY
36 THAT DIRECTLY OWNS OR CONTROLS OVER FIFTY PERCENT OF THE VOTING STOCK OF
37 THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IF THAT BANKING CORPO-
38 RATION OR BANK HOLDING COMPANY IS SUBJECT TO TAX OR REQUIRED TO BE
39 INCLUDED IN A COMBINED RETURN UNDER THIS ARTICLE.
40 (C) IF OVER FIFTY PERCENT OF THE VOTING STOCK OF AN OVERCAPITALIZED
41 CAPTIVE INSURANCE COMPANY IS NOT DIRECTLY OWNED OR CONTROLLED BY A BANK-
42 ING CORPORATION OR BANK HOLDING COMPANY THAT IS SUBJECT TO TAX OR
43 REQUIRED TO BE INCLUDED IN A COMBINED RETURN UNDER THIS ARTICLE, THEN
44 THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE INCLUDED IN A
45 COMBINED RETURN OR REPORT WITH THE CORPORATION THAT IS THE CLOSEST
46 CONTROLLING STOCKHOLDER OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPA-
47 NY. IF THE CLOSEST CONTROLLING STOCKHOLDER OF THE OVERCAPITALIZED
48 CAPTIVE INSURANCE COMPANY IS A BANKING CORPORATION OR BANK HOLDING
49 COMPANY THAT IS SUBJECT TO TAX OR OTHERWISE REQUIRED TO BE INCLUDED IN A
50 COMBINED RETURN UNDER THIS ARTICLE, THEN THE OVERCAPITALIZED CAPTIVE
51 INSURANCE COMPANY MUST BE INCLUDED IN A COMBINED RETURN UNDER THIS ARTI-
52 CLE.
53 (D) IF THE CORPORATION THAT DIRECTLY OWNS OR CONTROLS THE VOTING STOCK
54 OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS DESCRIBED IN SUBPAR-
55 AGRAPH (II) OR (IV) OF PARAGRAPH FOUR OF THIS SUBSECTION AS A CORPO-
56 RATION NOT PERMITTED TO MAKE A COMBINED RETURN, THEN THE PROVISIONS IN
S. 60--A 27 A. 160--A
1 CLAUSE (C) OF THIS SUBPARAGRAPH MUST BE APPLIED TO DETERMINE THE CORPO-
2 RATION IN WHOSE COMBINED RETURN OR REPORT THE OVERCAPITALIZED CAPTIVE
3 INSURANCE COMPANY SHOULD BE INCLUDED. IF, UNDER CLAUSE (C) OF THIS
4 SUBPARAGRAPH, THE CORPORATION THAT IS THE CLOSEST CONTROLLING STOCKHOLD-
5 ER OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS DESCRIBED IN
6 SUBPARAGRAPH (II) OR (IV) OF PARAGRAPH FOUR OF THIS SUBSECTION AS A
7 CORPORATION NOT PERMITTED TO MAKE A COMBINED RETURN, THEN THAT CORPO-
8 RATION IS DEEMED NOT TO BE IN THE OWNERSHIP STRUCTURE OF THE OVERCAPI-
9 TALIZED CAPTIVE INSURANCE COMPANY, AND THE CLOSEST CONTROLLING STOCK-
10 HOLDER WILL BE DETERMINED WITHOUT REGARD TO THAT CORPORATION.
11 (E) IF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS REQUIRED UNDER
12 THIS SUBPARAGRAPH TO BE INCLUDED IN A COMBINED RETURN WITH ANOTHER
13 CORPORATION, AND THAT OTHER CORPORATION IS REQUIRED TO BE INCLUDED IN A
14 COMBINED RETURN WITH ANOTHER CORPORATION UNDER OTHER PROVISIONS OF THIS
15 SUBSECTION, THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE
16 INCLUDED IN THAT COMBINED RETURN WITH THOSE CORPORATIONS.
17 S 7. Paragraph 3 of subsection (f) of section 1462 of the tax law, as
18 amended by section 11 of part FF-1 of chapter 57 of the laws of 2008, is
19 amended to read as follows:
20 (3) (i) In the case of a combined return, the tax shall be measured by
21 the combined entire net income, combined alternative entire net income
22 or combined assets of all the corporations included in the return,
23 including any captive REIT {or}, captive RIC OR OVERCAPITALIZED CAPTIVE
24 INSURANCE COMPANY. The allocation percentage shall be computed based on
25 the combined factors with respect to all the corporations included in
26 the combined return. In computing combined entire net income and
27 combined alternative entire net income intercorporate dividends and all
28 other intercorporate transactions shall be eliminated and in computing
29 combined assets intercorporate stockholdings and intercorporate bills,
30 notes and accounts receivable and payable and other intercorporate
31 indebtedness shall be eliminated.
32 (ii) In the case of a captive REIT required under this subsection to
33 be included in a combined return, "entire net income" means "real estate
34 investment trust taxable income" as defined in paragraph two of subdivi-
35 sion (b) of section eight hundred fifty-seven (as modified by section
36 eight hundred fifty-eight) of the internal revenue code, plus the amount
37 taxable under paragraph three of subdivision (b) of section eight
38 hundred fifty-seven of that code, subject to the modifications required
39 by section fourteen hundred fifty-three of this article. In the case of
40 a captive RIC required under this subsection to be included in a
41 combined return, "entire net income" means "investment company taxable
42 income" as defined in paragraph two of subdivision (b) of section eight
43 hundred fifty-two (as modified by section eight hundred fifty-five) of
44 the internal revenue code, plus the amount taxable under paragraph three
45 of subdivision (b) of section eight hundred fifty-two of that code,
46 subject to the modifications required by section fourteen hundred
47 fifty-three of this article. However, the deduction under the internal
48 revenue code for dividends paid by the captive REIT or captive RIC to
49 any member of the affiliated group that includes the corporation that
50 directly or indirectly owns over fifty percent of the voting stock of
51 the captive REIT or captive RIC will be limited to the following
52 percentages: (A) fifty percent for taxable years beginning on or after
53 January first, two thousand eight and before January first, two thousand
54 nine; (B) twenty-five percent for taxable years beginning on or after
55 January first, two thousand nine and before January first, two thousand
56 eleven; and (C) zero percent for taxable years beginning on or after
S. 60--A 28 A. 160--A
1 January first, two thousand eleven. The term "affiliated group" means
2 "affiliated group" as defined in section fifteen hundred four of the
3 internal revenue code, but without regard to the exceptions provided for
4 in subsection (b) of SUCH section fifteen hundred four.
5 (III) IN THE CASE OF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY
6 REQUIRED UNDER THIS SUBSECTION TO BE INCLUDED IN A COMBINED RETURN,
7 ENTIRE NET INCOME MUST BE COMPUTED AS REQUIRED BY SECTION FOURTEEN
8 HUNDRED FIFTY-THREE OF THIS ARTICLE.
9 S 8. Subdivision (a) of section 1500 of the tax law, as amended by
10 chapter 188 of the laws of 2003, is amended to read as follows:
11 (a) The term "insurance corporation" includes a corporation, associ-
12 ation, joint stock company or association, person, society, aggregation
13 or partnership, by whatever name known, doing an insurance business,
14 and, notwithstanding the provisions of section fifteen hundred twelve of
15 this article, shall include (1) a risk retention group as defined in
16 subsection (n) of section five thousand nine hundred two of the insur-
17 ance law, (2) the state insurance fund and (3) a corporation, associ-
18 ation, joint stock company or association, person, society, aggregation
19 or partnership doing an insurance business as a member of the New York
20 insurance exchange described in section six thousand two hundred one of
21 the insurance law. The definition of the "state insurance fund"
22 contained in this subdivision shall be limited in its effect to the
23 provisions of this article and the related provisions of this chapter
24 and shall have no force and effect other than with respect to such
25 provisions. The term "insurance corporation" shall also include a
26 captive insurance company doing a captive insurance business, as defined
27 in subsections (c) and (b), respectively, of section seven thousand two
28 of the insurance law; provided, however, "insurance corporation" shall
29 not include the metropolitan transportation authority, or a public bene-
30 fit corporation or not-for-profit corporation formed by a city with a
31 population of one million or more pursuant to subsection (a) of section
32 seven thousand five of the insurance law, each of which is expressly
33 exempt from the payment of fees, taxes or assessments, whether state or
34 local; AND PROVIDED FURTHER "INSURANCE CORPORATION" DOES NOT INCLUDE ANY
35 OVERCAPITALIZED CAPTIVE INSURANCE COMPANY. The term "insurance corpo-
36 ration" shall also include an unauthorized insurer operating from an
37 office within the state, pursuant to paragraph five of subsection (b) of
38 section one thousand one hundred one and subsection (i) of section two
39 thousand one hundred seventeen of the insurance law.
40 S 9. Subdivision (a) of section 1502-b of the tax law, as separately
41 amended by chapter 188 and section 3 of part H3 of chapter 62 of the
42 laws of 2003, is amended to read as follows:
43 (a) In lieu of the taxes and tax surcharge imposed by sections fifteen
44 hundred one, fifteen hundred two-a, fifteen hundred five-a, and fifteen
45 hundred ten of this article, every captive insurance company licensed by
46 the superintendent of insurance pursuant to the provisions of article
47 seventy of the insurance law, other than the metropolitan transportation
48 authority and a public benefit corporation or not-for-profit corporation
49 formed by a city with a population of one million or more pursuant to
50 subsection (a) of section seven thousand five of the insurance law, each
51 of which is expressly exempt from the payment of fees, taxes or assess-
52 ments whether state or local, AND OTHER THAN AN OVERCAPITALIZED CAPTIVE
53 INSURANCE COMPANY, shall, for the privilege of exercising its corporate
54 franchise, pay a tax on (1) all gross direct premiums, less return
55 premiums thereon, written on risks located or resident in this state and
56 (2) all assumed reinsurance premiums, less return premiums thereon,
S. 60--A 29 A. 160--A
1 written on risks located or resident in this state. The rate of the tax
2 imposed on gross direct premiums shall be four-tenths of one percent on
3 all or any part of the first twenty million dollars of premiums, three-
4 tenths of one percent on all or any part of the second twenty million
5 dollars of premiums, two-tenths of one percent on all or any part of the
6 third twenty million dollars of premiums, and seventy-five thousandths
7 of one percent on each dollar of premiums thereafter. The rate of the
8 tax on assumed reinsurance premiums shall be two hundred twenty-five
9 thousandths of one percent on all or any part of the first twenty
10 million dollars of premiums, one hundred and fifty thousandths of one
11 percent on all or any part of the second twenty million dollars of
12 premiums, fifty thousandths of one percent on all or any part of the
13 third twenty million dollars of premiums and twenty-five thousandths of
14 one percent on each dollar of premiums thereafter. The tax imposed by
15 this section shall be equal to the greater of (i) the sum of the tax
16 imposed on gross direct premiums and the tax imposed on assumed reinsur-
17 ance premiums or (ii) five thousand dollars.
18 S 10. This act shall take effect immediately and apply to taxable
19 years beginning on or after January 1, 2009; provided, however that the
20 amendments to subparagraph 1 of paragraph (b) of subdivision 4 of
21 section 211 of the tax law made by section three of this act shall not
22 affect the expiration of such subparagraph and shall be deemed expired
23 therewith; the amendments to subsection (d) and paragraph 4 of
24 subsection (m) of section 1452 of the tax law made by sections four and
25 five of this act, respectively, shall not affect the expiration and
26 repeal of such subsection and paragraph and shall be deemed expired and
27 repealed therewith; and the amendments to paragraph 3 of subsection (f)
28 of section 1462 of the tax law made by section seven of this act shall
29 not affect the expiration and reversion of such paragraph and shall
30 expire and be deemed repealed therewith.
31 PART G
32 Section 1. Subdivision 1 of section 187-b of the tax law, as amended
33 by section 14 of part W-1 of chapter 109 of the laws of 2006, is amended
34 to read as follows:
35 1. General. {A} FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO
36 THOUSAND NINE, A taxpayer shall be allowed a credit, to be credited
37 against the taxes imposed under sections one hundred eighty-three, one
38 hundred eighty-four, and one hundred eighty-five of this article. Such
39 credit, to be computed as hereinafter provided, shall be allowed for
40 alternative fuel vehicle refueling property placed in service during the
41 taxable year. Provided, however, that the amount of such credit allow-
42 able against the tax imposed by section one hundred eighty-four of this
43 article shall be the excess of the credit allowed by this section over
44 the amount of such credit allowable against the tax imposed by section
45 one hundred eighty-three of this article.
46 S 2. Paragraph (g) of subdivision 24 of section 210 of the tax law, as
47 amended by section 15 of part W-1 of chapter 109 of the laws of 2006, is
48 amended to read as follows:
49 (g) Termination. The credit allowed by paragraph (b) of this subdivi-
50 sion shall not apply in taxable years beginning after December thirty-
51 first, two thousand {ten} EIGHT.
52 S 3. Paragraph 6 of subsection (p) of section 606 of the tax law, as
53 amended by section 16 of part W-1 of chapter 109 of the laws of 2006, is
54 amended to read as follows:
S. 60--A 30 A. 160--A
1 (6) Termination. The credit allowed by paragraph two of this
2 subsection shall not apply in taxable years beginning after December
3 thirty-first, two thousand {ten} EIGHT.
4 S 4. Subdivision 25 of section 210 of the tax law, as added by section
5 1 of part J of chapter 407 of the laws of 1999, is amended to read as
6 follows:
7 25. Credit for purchase of an automated external defibrillator. {A}
8 FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND NINE, A
9 taxpayer shall be allowed a credit, to be computed as hereinafter
10 provided, against the tax imposed by this article, for the purchase,
11 other than for resale, of an automated external defibrillator, as such
12 term is defined in section three thousand-b of the public health law.
13 The amount of credit shall be the cost to the taxpayer of automated
14 external defibrillators purchased during the taxable year, such credit
15 not to exceed five hundred dollars with respect to each unit purchased.
16 The credit allowed under this subdivision for any taxable year shall not
17 reduce the tax due for such year to less than the higher of the amounts
18 prescribed in paragraphs (c) and (d) of subdivision one of this section.
19 S 5. Subsection (s) of section 606 of the tax law, as added by section
20 3 of part J of chapter 407 of the laws of 1999, is amended to read as
21 follows:
22 (s) Credit for purchase of an automated external defibrillator. {A}
23 FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND NINE, A
24 taxpayer shall be allowed a credit as hereinafter provided, against the
25 tax imposed by this article for the purchase, other than for resale, of
26 an automated external defibrillator, as such term is defined in section
27 three thousand-b of the public health law. The amount of credit shall be
28 the cost to the taxpayer of automated external defibrillators purchased
29 during the taxable year, such credit not to exceed five hundred dollars
30 with respect to each unit purchased.
31 S 6. Subsection (j) of section 1456 of the tax law, as added by
32 section 4 of part J of chapter 407 of the laws of 1999, is amended to
33 read as follows:
34 (j) Credit for purchase of an automated external defibrillator. {A}
35 FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND NINE, A
36 taxpayer shall be allowed a credit as hereinafter provided, against the
37 tax imposed by this article for the purchase, other than for resale, of
38 an automated external defibrillator, as such term is defined in section
39 three thousand-b of the public health law. The amount of the credit
40 shall be the cost to the taxpayer of automated external defibrillators
41 purchased during the taxable year, such credit not to exceed five
42 hundred dollars with respect to each unit purchased. The credit allowed
43 under this subsection for any taxable year shall not reduce the tax due
44 for such year to less than the minimum tax fixed by subsection (b) of
45 section fourteen hundred fifty-five of this article.
46 S 7. Subdivision (l) of section 1511 of the tax law, as amended by
47 section 15 of part H3 of chapter 62 of the laws of 2003, is amended to
48 read as follows:
49 (l) Credit for purchase of an automated external defibrillator. {A}
50 FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND NINE, A
51 taxpayer shall be allowed a credit as hereinafter provided, against the
52 tax imposed by this article for the purchase, other than for resale, of
53 an automated external defibrillator, as such term is defined in section
54 three thousand-b of the public health law. The amount of the credit
55 shall be the cost to the taxpayer of automated external defibrillators
56 purchased during the taxable year, such credit not to exceed five
S. 60--A 31 A. 160--A
1 hundred dollars with respect to each unit purchased. The credit allowed
2 under this subdivision for any taxable year shall not reduce the tax due
3 for such year to less than the minimum tax fixed by paragraph four of
4 subdivision (a) of section fifteen hundred two of this article or by
5 section fifteen hundred two-a of this article, whichever is applicable.
6 S 8. Subdivision (a) of section 26 of the tax law, as added by chapter
7 537 of the laws of 2005, is amended to read as follows:
8 (a) Allowance of credit. {A} FOR TAXABLE YEARS BEGINNING BEFORE JANU-
9 ARY FIRST, TWO THOUSAND NINE, A taxpayer, which is subject to tax under
10 article nine, nine-A, twenty-two, thirty-two or thirty-three of this
11 chapter and which is a qualified building owner, shall be allowed a
12 credit against such tax. The amount of the credit allowed under this
13 section shall equal the sum of the number of qualified security officers
14 providing protection to a building or buildings owned by the taxpayer
15 multiplied by three thousand dollars. Provided, however, that in the
16 case of a worker not so employed for a full year, such amount shall be
17 prorated to reflect the length of such employment under regulations of
18 the commissioner.
19 S 9. Subdivision 1 of section 187-n of the tax law, as added by chap-
20 ter 537 of the laws of 2005, is amended to read as follows:
21 1. Allowance of credit. {A} FOR TAXABLE YEARS BEGINNING BEFORE JANUARY
22 FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit, to be
23 computed as provided in section twenty-six of this chapter, against the
24 tax imposed by this article.
25 S 10. Paragraph 1 of subsection (ii) of section 606 of the tax law, as
26 added by chapter 537 of the laws of 2005, is amended to read as follows:
27 (1) Allowance of credit. {A} FOR TAXABLE YEARS BEGINNING BEFORE JANU-
28 ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit, to
29 be computed as provided in section twenty-six of this chapter, against
30 the tax imposed by this article.
31 S 11. Paragraph 1 of subsection (t) of section 1456 of the tax law, as
32 added by chapter 537 of the laws of 2005, is amended to read as follows:
33 (1) Allowance of credit. {A} FOR TAXABLE YEARS BEGINNING BEFORE JANU-
34 ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit, to
35 be computed as provided in section twenty-six of this chapter, against
36 the tax imposed by this article.
37 S 12. Paragraph 1 of subdivision (x) of section 1511 of the tax law,
38 as added by chapter 537 of the laws of 2005, is amended to read as
39 follows:
40 (1) Allowance of credit. {A} FOR TAXABLE YEARS BEGINNING BEFORE JANU-
41 ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit, to
42 be computed as provided in section twenty-six of this chapter, against
43 the tax imposed by this article.
44 S 13. Subdivision 1 of section 187-n of the tax law, as added by chap-
45 ter 446 of the laws of 2005, is amended to read as follows:
46 (1) Allowance of credit. {A} FOR TAXABLE YEARS BEGINNING BEFORE JANU-
47 ARY FIRST, TWO THOUSAND NINE, A taxpayer whose business is not substan-
48 tially engaged in the commercial generation, distribution, transmission,
49 or servicing of energy or energy products shall be allowed a credit
50 against the taxes imposed by sections one hundred eighty-three, one
51 hundred eighty-four and one hundred eighty-five of this article, equal
52 to its qualified fuel cell electric generating equipment expenditures.
53 Provided, however, that the amount of such credit allowable against the
54 tax imposed by section one hundred eighty-four of this article shall be
55 the excess of the amount of such credit over the amount of any credit
56 allowed by this section against the tax imposed by section one hundred
S. 60--A 32 A. 160--A
1 eighty-three of this article. This credit shall not exceed one thousand
2 five hundred dollars per generating unit with respect to any taxable
3 year. The credit provided for herein shall be allowed with respect to
4 the taxable year in which the fuel cell electric generating equipment is
5 placed in service.
6 S 14. Paragraph (a) of subdivision 37 of section 210 of the tax law,
7 as added by chapter 446 of the laws of 2005, is amended to read as
8 follows:
9 (a) Allowance of credit. {A} FOR TAXABLE YEARS BEGINNING BEFORE JANU-
10 ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit
11 against the tax imposed by this article, equal to its qualified fuel
12 cell electric generating equipment expenditures. This credit shall not
13 exceed one thousand five hundred dollars per generating unit with
14 respect to any taxable year. The credit provided for herein shall be
15 allowed with respect to the taxable year in which the fuel cell electric
16 generating equipment is placed in service.
17 S 15. Paragraph 1 of subsection (g-2) of section 606 of the tax law,
18 as added by chapter 446 of the laws of 2005, is amended to read as
19 follows:
20 (1) General. {An} FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST,
21 TWO THOUSAND NINE, AN individual taxpayer shall be allowed a credit
22 against the tax imposed by this article equal to twenty percent of qual-
23 ified fuel cell electric generating equipment expenditures. This credit
24 shall not exceed one thousand five hundred dollars per generating unit
25 with respect to any taxable year. The credit provided for herein shall
26 be allowed with respect to the taxable year in which the fuel cell elec-
27 tric generating equipment is placed in service.
28 S 16. Paragraph 1 of subsection (t) of section 1456 of the tax law, as
29 added by chapter 446 of the laws of 2005, is amended to read as follows:
30 (1) Allowance of credit. {A} FOR TAXABLE YEARS BEGINNING BEFORE JANU-
31 ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit
32 against the tax imposed by this article, equal to its qualified fuel
33 cell electric generating equipment expenditures. This credit shall not
34 exceed one thousand five hundred dollars per generating unit with
35 respect to any taxable year. The credit provided for in this subsection
36 shall be allowed with respect to the taxable year in which the fuel cell
37 electric generating equipment is placed in service.
38 S 17. Paragraph 1 of subdivision (x) of section 1511 of the tax law,
39 as added by chapter 446 of the laws of 2005, is amended to read as
40 follows:
41 (1) Allowance of credit. {A} FOR TAXABLE YEARS BEGINNING BEFORE JANU-
42 ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit
43 against the tax imposed by this article, equal to its qualified fuel
44 cell electric generating equipment expenditures. This credit shall not
45 exceed one thousand five hundred dollars per generating unit with
46 respect to any taxable year. The credit provided for in this subdivision
47 shall be allowed with respect to the taxable year in which the fuel cell
48 electric generating equipment is placed in service.
49 S 18. Paragraph (a) of subdivision 12-F of section 210 of the tax law,
50 as added by section 32 of part A of chapter 56 of the laws of 1998, is
51 amended to read as follows:
52 (a) {A} FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND
53 NINE, A taxpayer shall be allowed a credit against the tax imposed by
54 this article. The amount of the credit shall be equal to one of the
55 following percentages, per each qualified investment in a qualified
56 emerging technology company as defined in section thirty-one hundred
S. 60--A 33 A. 160--A
1 two-e of the public authorities law, made during the taxable year, and
2 certified by the commissioner, either:
3 (1) ten percent of qualified investments in qualified emerging tech-
4 nology companies, except for investments made by or on behalf of an
5 owner of the business, including, but not limited to, a stockholder,
6 partner or sole proprietor, or any related person, as defined in subpar-
7 agraph (C) of paragraph three of subsection (b) of section four hundred
8 sixty-five of the internal revenue code, and provided, however, that the
9 taxpayer certifies to the commissioner that the qualified investment
10 will not be sold, transferred, traded, or disposed of during the four
11 years following the year in which the credit is first claimed; or
12 (2) twenty percent of qualified investments in qualified emerging
13 technology companies, except for investments made by or on behalf of an
14 owner of the business, including, but not limited to, a stockholder,
15 partner or sole proprietor, or any related person, as defined in subpar-
16 agraph (C) of paragraph three of subsection (b) of section four hundred
17 sixty-five of the internal revenue code, and provided, however, that the
18 taxpayer certifies to the commissioner that the qualified investment
19 will not be sold, transferred, traded, or disposed of during the nine
20 years following the year in which the credit is first claimed.
21 "Qualified investment" means the contribution of property to a corpo-
22 ration in exchange for original issue capital stock or other ownership
23 interest, the contribution of property to a partnership in exchange for
24 an interest in the partnership, and similar contributions in the case of
25 a business entity not in corporate or partnership form in exchange for
26 an ownership interest in such entity.
27 The total amount of credit allowable to a taxpayer under this provision
28 for all years, taken in the aggregate, shall not exceed one hundred
29 fifty thousand dollars in the case of investments made pursuant to
30 subparagraph one of this paragraph and shall not exceed three hundred
31 thousand dollars in the case of investments made pursuant to subpara-
32 graph two of this paragraph.
33 S 19. Paragraph 1 of subsection (r) of section 606 of the tax law, as
34 added by section 2 of part I of chapter 407 of the laws of 1999, is
35 amended to read as follows:
36 (1) {A} FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND
37 NINE, A taxpayer shall be allowed a credit against the tax imposed by
38 this article. The amount of the credit shall be equal to one of the
39 following percentages, per each qualified investment in a qualified
40 emerging technology company as defined in section thirty-one hundred
41 two-e of the public authorities law, made during the taxable year, and
42 certified by the commissioner, either:
43 (A) ten percent of qualified investments in qualified emerging tech-
44 nology companies, except for investments made by or on behalf of an
45 owner of the business, including, but not limited to, a stockholder,
46 partner or sole proprietor, or any related person, as defined in subpar-
47 agraph (C) of paragraph three of subsection (b) of section four hundred
48 sixty-five of the internal revenue code, and provided, however, that the
49 taxpayer certifies to the commissioner that the qualified investment
50 will not be sold, transferred, traded, or disposed of during the four
51 years following the year in which the credit is first claimed; or
52 (B) twenty percent of qualified investments in qualified emerging
53 technology companies, except for investments made by or on behalf of an
54 owner of the business, including, but not limited to, a stockholder,
55 partner or sole proprietor, or any related person, as defined in subpar-
56 agraph (C) of paragraph three of subsection (b) of section four hundred
S. 60--A 34 A. 160--A
1 sixty-five of the internal revenue code, and provided, however, that the
2 taxpayer certifies to the commissioner that the qualified investment
3 will not be sold, transferred, traded, or disposed of during the nine
4 years following the year in which the credit is first claimed.
5 (C) "Qualified investment" means the contribution of property to a
6 corporation in exchange for original issue capital stock or other owner-
7 ship interest, the contribution of property to a partnership in exchange
8 for an interest in the partnership, and similar contributions in the
9 case of a business entity not in corporate or partnership form in
10 exchange for an ownership interest in such entity. The total amount of
11 credit allowable to a taxpayer under this provision for all years, taken
12 in the aggregate, shall not exceed one hundred fifty thousand dollars in
13 the case of investments made pursuant to subparagraph (A) of this para-
14 graph and shall not exceed three hundred thousand dollars in the case of
15 investments made pursuant to subparagraph (B) of this paragraph.
16 S 20. Subdivision (a) of section 20 of the tax law, as added by
17 section 1 of part I of chapter 63 of the laws of 2000, is amended to
18 read as follows:
19 (a) Allowance of credit. {A} FOR TAXABLE YEARS BEGINNING BEFORE JANU-
20 ARY FIRST, TWO THOUSAND NINE, A taxpayer subject to tax under article
21 nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter
22 shall be allowed a credit against such tax, pursuant to the provisions
23 referenced in subdivision (d) of this section. The credit shall be
24 allowed where a taxpayer has made a certified contribution of at least
25 ten million dollars to a qualified transportation improvement project in
26 a prior taxable year. The credit shall be equal to six percent of the
27 taxpayer`s increased qualified business facility payroll for the taxable
28 year. The aggregate of all credit amounts allowed to the taxpayer pursu-
29 ant to this section with respect to a certified contribution shall not
30 exceed the amount of such certified contribution.
31 S 21. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
32 of the tax law, as amended by section 2 of part ZZ-1 of chapter 57 of
33 the laws of 2008, is amended to read as follows:
34 (B) shall be treated as the owner of a new business with respect to
35 such share if the corporation qualifies as a new business pursuant to
36 paragraph (j) of subdivision twelve of section two hundred ten of this
37 chapter.
38 The corporation`s credit base under
39 section two hundred ten or section
40 With respect to the following fourteen hundred fifty-six of this
41 credit under this section: chapter is:
42 Investment tax credit Investment credit base
43 under subsection (a) or qualified
44 rehabilitation
45 expenditures under
46 subdivision twelve of
47 section two hundred ten
48 Empire zone Cost or other basis
49 investment tax credit under subdivision
50 under subsection (j) twelve-B
51 of section two hundred
52 ten
S. 60--A 35 A. 160--A
1 Empire zone Eligible wages under
2 wage tax credit subdivision nineteen of
3 under subsection (k) section two hundred ten
4 or subsection (e) of
5 section fourteen hundred
6 fifty-six
7 Empire zone Qualified investments
8 capital tax credit and contributions under
9 under subsection (l) subdivision twenty of
10 section two hundred ten
11 or subsection (d) of
12 section fourteen hundred
13 fifty-six
14 Agricultural property tax Allowable school
15 credit under subsection (n) district property taxes under
16 subdivision twenty-two of
17 section two hundred ten
18 Credit for employment Qualified first-year wages or
19 of persons with dis- qualified second-year wages
20 abilities under under subdivision
21 subsection (o) twenty-three of section
22 two hundred ten
23 or subsection (f)
24 of section fourteen
25 hundred fifty-six
26 Employment incentive Applicable investment credit
27 credit under subsec- base under subdivision
28 tion (a-1) twelve-D of section two
29 hundred ten
30 Empire zone Applicable investment
31 employment credit under sub-
32 incentive credit under division twelve-C
33 subsection (j-1) of section two hundred ten
34 Alternative fuels credit {Cost} FOR TAXABLE
35 under subsection (p) YEARS BEGINNING
36 BEFORE JANUARY FIRST,
37 TWO THOUSAND NINE, COST
38 under subdivision
39 twenty-four of section two
40 hundred ten
41 Qualified emerging Applicable credit base
42 technology company under subdivision twelve-E
43 employment credit of section two hundred ten
44 under subsection (q)
45 Qualified emerging {Qualified} FOR TAXABLE YEARS
46 technology company BEGINNING BEFORE JANUARY
47 capital tax credit FIRST, TWO THOUSAND NINE,
48 under subsection (r) QUALIFIED
S. 60--A 36 A. 160--A
1 investments under
2 subdivision twelve-F of
3 section two hundred ten
4 Credit for purchase of an {Cost} FOR TAXABLE YEARS
5 automated external defibrillator BEGINNING BEFORE JANUARY
6 under subsection (s) FIRST, TWO THOUSAND
7 NINE, COST
8 of an automated
9 external defibrillator under
10 subdivision twenty-five of
11 section two hundred ten
12 or subsection (j) of section
13 fourteen hundred fifty-six
14 Low-income housing Credit amount under
15 credit under subsection (x) subdivision thirty
16 of section two hundred ten or
17 subsection (l) of section
18 fourteen hundred fifty-six
19 Credit for transportation {Amount} FOR TAXABLE
20 improvement contributions YEARS BEGINNING BEFORE
21 under subsection (z) JANUARY FIRST, TWO
22 THOUSAND NINE, AMOUNT
23 of credit under sub-
24 division thirty-two of section
25 two hundred ten or subsection
26 (n) of section fourteen
27 hundred fifty-six
28 QEZE credit for real property Amount of credit under
29 taxes under subsection (bb) subdivision twenty-seven of
30 section two hundred ten or
31 subsection (o) of section
32 fourteen hundred fifty-six
33 QEZE tax reduction credit Amount of benefit period
34 under subsection (cc) factor, employment increase factor
35 and zone allocation
36 factor (without regard
37 to pro ration) under
38 subdivision twenty-eight of
39 section two hundred ten or
40 subsection (p) of section
41 fourteen hundred fifty-six
42 and amount of tax factor
43 as determined under
44 subdivision (f) of section sixteen
45 Green building credit Amount of green building credit
46 under subsection (y) under subdivision thirty-one
47 of section two hundred ten
48 or subsection (m) of section
49 fourteen hundred fifty-six
S. 60--A 37 A. 160--A
1 Credit for long-term Qualified costs under
2 care insurance premiums subdivision twenty-five-a of
3 under subsection (aa) section two hundred ten
4 or subsection (k) of section
5 fourteen hundred fifty-six
6 Brownfield redevelopment Amount of credit
7 credit under subsection under subdivision
8 (dd) thirty-three of section
9 two hundred ten
10 or subsection (q) of
11 section fourteen hundred
12 fifty-six
13 Remediated brownfield Amount of credit under
14 credit for real property subdivision thirty-four
15 taxes for qualified of section two hundred
16 sites under subsection ten or subsection (r) of
17 (ee) section fourteen hundred
18 fifty-six
19 Environmental Amount of credit under
20 remediation subdivision thirty-five of
21 insurance credit under section two hundred
22 subsection (ff) ten or subsection
23 (s) of section
24 fourteen hundred
25 fifty-six
26 Empire state film production Amount of credit for qualified
27 credit under subsection (gg) production costs in production
28 of a qualified film under
29 subdivision thirty-six of
30 section two hundred ten
31 Qualified emerging Qualifying expenditures and
32 technology company facilities, development activities under
33 operations and training credit subdivision twelve-G of section
34 under subsection (nn) two hundred ten
35 Security training tax {Amount} FOR TAXABLE YEARS
36 credit under BEGINNING BEFORE JANUARY
37 subsection (ii) FIRST, TWO THOUSAND
38 NINE, AMOUNT
39 of credit
40 under subdivision thirty-seven
41 of section two hundred ten or
42 under subsection (t) of
43 section fourteen hundred fifty-six
44 Credit for qualified fuel {Amount} FOR TAXABLE YEARS
45 cell electric generating equipment BEGINNING BEFORE JANUARY
46 expenditures under subsection (g-2) FIRST, TWO THOUSAND
47 NINE, AMOUNT
48 of credit under
49 subdivision thirty-seven
S. 60--A 38 A. 160--A
1 of section two hundred ten
2 or subsection (t) of
3 section fourteen hundred
4 fifty-six
5 Empire state commercial production Amount of credit for qualified
6 credit under subsection (jj) production costs in production
7 of a qualified commercial under
8 subdivision thirty-eight of sec-
9 tion two hundred ten
10 Biofuel production Amount of credit
11 tax credit under under subdivision
12 subsection (jj) thirty-eight of
13 section two hundred ten
14 Clean heating fuel credit Amount of credit under
15 under subsection (mm) subdivision thirty-nine of
16 section two hundred ten
17 Credit for rehabilitation Amount of credit under
18 of historic properties subdivision forty of
19 under subsection (oo) subsection two hundred ten
20 Credit for companies who Amount of credit under
21 provide transportation subdivision forty of
22 to individuals section two hundred ten
23 with disabilities
24 under subsection (oo)
25 S 22. This act shall take effect immediately; provided, however that
26 the empire state film production credit under subsection (gg), the
27 empire state commercial production credit under subsection (jj) and the
28 credit for companies who provide transportation to individuals with
29 disabilities under subsection (oo) of section 606 of the tax law
30 contained in section twenty-one of this act shall expire on the same
31 date as provided in section 9 of part P of chapter 60 of the laws of
32 2004, as amended, section 10 of part V of chapter 62 of the laws of
33 2006, as amended and section 5 of chapter 522 of the laws of 2006, as
34 amended, respectively.
35 PART H
36 Section 1. Subparagraph (A) of paragraph 1 of subsection (b) of
37 section 631 of the tax law is amended by adding a new clause 1 to read
38 as follows:
39 (1) FOR PURPOSES OF THIS SUBPARAGRAPH, THE TERM "REAL PROPERTY LOCATED
40 IN THIS STATE" INCLUDES AN INTEREST IN A PARTNERSHIP, LIMITED LIABILITY
41 CORPORATION, S CORPORATION, OR NON-PUBLICLY TRADED C CORPORATION WITH
42 ONE HUNDRED OR FEWER SHAREHOLDERS (HEREINAFTER THE "ENTITY") THAT OWNS
43 REAL PROPERTY THAT IS LOCATED IN NEW YORK AND HAS A FAIR MARKET VALUE
44 THAT EQUALS OR EXCEEDS FIFTY PERCENT OF ALL THE ASSETS OF THE ENTITY ON
45 THE DATE OF SALE OR EXCHANGE OF THE TAXPAYER`S INTEREST IN THE ENTITY.
46 ONLY THOSE ASSETS THAT THE ENTITY OWNED FOR AT LEAST TWO YEARS BEFORE
47 THE DATE OF THE SALE OR EXCHANGE OF THE TAXPAYER`S INTEREST IN THE ENTI-
48 TY ARE TO BE USED IN DETERMINING THE FAIR MARKET VALUE OF ALL THE ASSETS
S. 60--A 39 A. 160--A
1 OF THE ENTITY ON THE DATE OF SALE OR EXCHANGE. THE GAIN OR LOSS DERIVED
2 FROM NEW YORK SOURCES FROM THE TAXPAYER`S SALE OR EXCHANGE OF AN INTER-
3 EST IN AN ENTITY THAT IS SUBJECT TO THE PROVISIONS OF THIS SUBPARAGRAPH
4 IS THE TOTAL GAIN OR LOSS FOR FEDERAL INCOME TAX PURPOSES FROM THAT SALE
5 OR EXCHANGE MULTIPLIED BY A FRACTION, THE NUMERATOR OF WHICH IS THE FAIR
6 MARKET VALUE OF THE REAL PROPERTY LOCATED IN NEW YORK ON THE DATE OF
7 SALE OR EXCHANGE AND THE DENOMINATOR OF WHICH IS THE FAIR MARKET VALUE
8 OF ALL THE ASSETS OF THE ENTITY ON THE DATE OF SALE OR EXCHANGE.
9 S 2. This act shall take effect immediately and shall apply to sales
10 or exchanges of entity interests that occur thirty or more days after
11 the date this act becomes law.
12 PART I
13 Section 1. Paragraph (a) of subdivision 1 of section 197-b of the tax
14 law, as amended by section 1 of part JJ-1 of chapter 57 of the laws of
15 2008, is amended to read as follows:
16 (a) For taxable years beginning on or after January first, nineteen
17 hundred seventy-seven, every taxpayer subject to tax under section one
18 hundred eighty-two, one hundred eighty-two-a, former section one hundred
19 eighty-two-b, one hundred eighty-four, one hundred eighty-six-a or one
20 hundred eighty-six-e of this article, must pay in each year an amount
21 equal to (i) twenty-five percent of the tax imposed under each of such
22 sections for the preceding taxable year if the preceding year`s tax
23 exceeded one thousand dollars but was equal to or less than one hundred
24 thousand dollars, or (ii) {thirty} FORTY percent of the tax imposed
25 under any of these sections for the preceding taxable year if the
26 preceding year`s tax exceeded one hundred thousand dollars. If the
27 preceding year`s tax under section one hundred eighty-four, one hundred
28 eighty-six-a or one hundred eighty-six-e of this article exceeded one
29 thousand dollars and the taxpayer is subject to the tax surcharge
30 imposed by section one hundred eighty-four-a or one hundred eighty-six-c
31 of this article, respectively, the taxpayer must also pay in each such
32 year an amount equal to (i) twenty-five percent of the tax surcharge
33 imposed under such section for the preceding taxable year if the preced-
34 ing year`s tax exceeded one thousand dollars but was equal to or less
35 than one hundred thousand dollars, or (ii) {thirty} FORTY percent of the
36 tax surcharge imposed under that section for the preceding taxable year
37 if the preceding year`s tax exceeded one hundred thousand dollars. The
38 amount or amounts must be paid with the return or report required to be
39 filed with respect to the tax or tax surcharge for the preceding taxable
40 year or with an application for extension of the time for filing the
41 return or report.
42 S 2. Subdivision (a) of section 213-b of the tax law, as amended by
43 section 2 of part JJ-1 of chapter 57 of the laws of 2008, is amended to
44 read as follows:
45 (a) First installments for certain taxpayers.--In privilege periods of
46 twelve months ending at any time during the calendar year nineteen
47 hundred seventy and thereafter, every taxpayer subject to the tax
48 imposed by section two hundred nine of this chapter must pay with the
49 report required to be filed for the preceding privilege period, or with
50 an application for extension of the time for filing the report, an
51 amount equal to (i) twenty-five percent of the preceding year`s tax if
52 the preceding year`s tax exceeded one thousand dollars but was equal to
53 or less than one hundred thousand dollars, or (ii) {thirty} FORTY
54 percent of the preceding year`s tax if the preceding year`s tax exceeded
S. 60--A 40 A. 160--A
1 one hundred thousand dollars. If the preceding year`s tax under section
2 two hundred nine of this chapter exceeded one thousand dollars and the
3 taxpayer is subject to the tax surcharge imposed by section two hundred
4 nine-B of this chapter, the taxpayer must also pay with the tax
5 surcharge report required to be filed for the preceding privilege peri-
6 od, or with an application for extension of the time for filing the
7 report, an amount equal to (i) twenty-five percent of the tax surcharge
8 imposed for the preceding year if the preceding year`s tax was equal to
9 or less than one hundred thousand dollars, or (ii) {thirty} FORTY
10 percent of the tax surcharge imposed for the preceding year if the
11 preceding year`s tax exceeded one hundred thousand dollars.
12 S 3. Subsection (a) of section 1461 of the tax law, as amended by
13 section 3 of part JJ-1 of chapter 57 of the laws of 2008, is amended to
14 read as follows:
15 (a) Every taxpayer subject to the tax imposed by section fourteen
16 hundred fifty-one must pay an amount equal to (i) twenty-five percent of
17 the preceding year`s tax if the preceding year`s tax exceeded one thou-
18 sand dollars but was equal to or less than one hundred thousand dollars,
19 or (ii) {thirty} FORTY percent of the preceding year`s tax if the
20 preceding year`s tax exceeded one hundred thousand dollars. The amount
21 must be paid with the return required to be filed for the preceding
22 taxable year or with an application for an extension of the time for
23 filing the return. If the preceding year`s tax under section fourteen
24 hundred fifty-one OF THIS ARTICLE exceeded one thousand dollars and the
25 taxpayer is subject to the tax surcharge imposed by section fourteen
26 hundred fifty-five-B OF THIS ARTICLE, the taxpayer must also pay with
27 the tax surcharge return required to be filed for the preceding taxable
28 year, or with an application for an extension of the time for filing the
29 return, an amount equal to (i) twenty-five percent of the tax surcharge
30 imposed for the preceding year if the preceding year`s tax was equal to
31 or less than one hundred thousand dollars, or (ii) {thirty} FORTY
32 percent of the tax surcharge imposed for the preceding year if the
33 preceding year`s tax exceeded one hundred thousand dollars.
34 S 4. Paragraph 1 of subdivision (a) of section 1514 of the tax law, as
35 amended by section 4 of part JJ-1 of chapter 57 of the laws of 2008, is
36 amended to read as follows:
37 (1) Except as otherwise provided in paragraph two of this subdivision,
38 for taxable years beginning on or after January first, nineteen hundred
39 seventy-six, every taxpayer subject to tax under this article must pay
40 in each year an amount equal to (i) twenty-five percent of the tax
41 imposed under this article for the preceding taxable year if the preced-
42 ing year`s tax exceeded one thousand dollars but was equal to or less
43 than one hundred thousand dollars, or (ii) {thirty} FORTY percent of the
44 tax imposed under this article for the preceding taxable year if the
45 preceding year`s tax exceeded one hundred thousand dollars. If the
46 preceding year`s tax exceeded one thousand dollars and the taxpayer is
47 subject to the tax surcharge imposed by section fifteen hundred five-a
48 of this article, the taxpayer must also pay an amount equal to (i) twen-
49 ty-five percent of the tax surcharge imposed under section fifteen
50 hundred five-a for the preceding taxable year if the preceding year`s
51 tax was equal to or less than one hundred thousand dollars, or (ii)
52 {thirty} FORTY percent of the tax surcharge imposed for the preceding
53 taxable year if the preceding year`s tax exceeded one hundred thousand
54 dollars.
55 S 5. This act shall take effect immediately and shall apply to taxable
56 years beginning on or after January 1, 2010.
S. 60--A 41 A. 160--A
1 PART J
2 Section 1. Paragraph 3 of subsection (c) of section 658 of the tax
3 law, as amended by section 1 of part AA-1 of chapter 57 of the laws of
4 2008, is amended to read as follows:
5 (3) Filing fees. (A) Every subchapter K limited liability company,
6 every limited liability company that is a disregarded entity for federal
7 income tax purposes, and every {limited liability} partnership {under
8 article eight-B of the partnership law and every foreign limited liabil-
9 ity partnership,} which has any income derived from New York sources,
10 determined in accordance with the applicable rules of section six
11 hundred thirty-one of this article as in the case of a nonresident indi-
12 vidual, shall, within thirty days after the last day of the taxable
13 year, make a payment of a filing fee. The amount of the filing fee is
14 the amount set forth in subparagraph (B) of this paragraph. The minimum
15 filing fee is twenty-five dollars for taxable years beginning in two
16 thousand eight and {after} THEREAFTER. Limited liability companies that
17 are disregarded {entitled} ENTITIES for federal income tax purposes must
18 pay a filing fee of twenty-five dollars for taxable years beginning on
19 or after January first, two thousand eight.
20 (B) The filing fee will be based on the New York source gross income
21 of the limited liability company or {limited liability} partnership for
22 the taxable year immediately preceding the taxable year for which the
23 fee is due. If the limited liability company or {limited liability}
24 partnership does not have any New York source gross income for the taxa-
25 ble year immediately preceding the taxable year for which the fee is
26 due, the limited liability company or {limited liability} partnership
27 shall pay the minimum filing fee. PARTNERSHIPS, OTHER THAN LIMITED
28 LIABILITY PARTNERSHIPS UNDER ARTICLE EIGHT-B OF THE PARTNERSHIP LAW AND
29 FOREIGN LIMITED LIABILITY PARTNERSHIPS, WITH LESS THAN ONE MILLION
30 DOLLARS IN NEW YORK SOURCE GROSS INCOME ARE EXEMPT FROM THE FILING FEE.
31 New York source gross income is the sum of the partners` or members`
32 shares of federal gross income from the {limited liability} partnership
33 or limited liability company derived from or connected with New York
34 sources, determined in accordance with the provisions of section six
35 hundred thirty-one of this article as if those provisions and any
36 related provisions expressly referred to a computation of federal gross
37 income from New York sources. For this purpose, federal gross income is
38 computed without any allowance or deduction for cost of goods sold.
39 The amount of the filing fee for taxable years beginning on or after
40 January first, two thousand eight will be determined in accordance with
41 the following table:
42 If the New York source gross income is: The fee is:
43 not more than $100,000 $25
44 more than $100,000 but not over $250,000 $50
45 more than $250,000 but not over $500,000 $175
46 more than $500,000 but not over $1,000,000 $500
47 more than $1,000,000 but not over $5,000,000 $1,500
48 more than $5,000,000 but not over $25,000,000 $3,000
49 Over $25,000,000 $4,500
50 (C) No credits provided by this article may be taken against the fee
51 imposed by this paragraph.
52 (D) Where the filing fee is not timely paid, it shall be paid upon
53 notice and demand and shall be assessed, collected and paid in the same
S. 60--A 42 A. 160--A
1 manner as taxes, and for those purposes any reference in this article to
2 tax imposed by this article shall be deemed also to refer to this filing
3 fee.
4 S 2. Subsection (a) of section 1304-C of the tax law, as amended by
5 section 5 of part AA-1 of chapter 57 of the laws of 2008, is amended to
6 read as follows:
7 (a) In addition to any other taxes or fees authorized by this article
8 or any other law, any city imposing the taxes authorized by this article
9 is hereby authorized and empowered to adopt and amend local laws provid-
10 ing that every subchapter K limited liability company (as such term is
11 defined in subsection (b) of section thirteen hundred two of this arti-
12 cle), every limited liability company that is a disregarded entity for
13 federal income tax purposes and every {limited liability} partnership
14 {under article eight-B of the partnership law and every foreign limited
15 liability partnership,} which has any income derived from sources within
16 such city, determined in accordance with the applicable rules of section
17 six hundred thirty-one of this chapter as in the case of a state nonres-
18 ident individual (except that in making that determination any refer-
19 ences in section six hundred thirty-one of this chapter to "New York
20 source" or "New York sources" shall be read as references to "New York
21 city source" or "New York city sources" and any references in that
22 section to "this state" or "the state" shall be read as references to
23 "this city" or "the city"), shall within thirty days after the last day
24 of the taxable year make a payment of a filing fee. The amount of the
25 filing fee shall be the amount determined under paragraph three of
26 subsection (c) of section six hundred fifty-eight of this chapter,
27 except that in making that determination any references in that section
28 to "New York source gross income" must be read as reference to "New York
29 city source gross income". Any local law imposing the filing fee author-
30 ized by this section shall provide that where the filing fee is not
31 timely paid, it shall be paid upon notice and demand and shall be
32 assessed, collected and paid in the same manner as the taxes imposed
33 pursuant to the authority of this article, and for these purposes any
34 reference in the local law imposing those taxes to the taxes imposed by
35 that local law shall be deemed also to refer to the filing fee imposed
36 pursuant to the authority of this section.
37 S 3. This act shall take effect immediately and shall apply to taxable
38 years beginning on or after January 1, 2009.
39 PART K
40 Section 1. Section 957 of the general municipal law, as added by chap-
41 ter 686 of the laws of 1986, subdivisions (b) and (f) as amended and
42 subdivisions (c), (g), (i), (j), (k), and (l) as added by chapter 624 of
43 the laws of 1990, subdivision (d) as amended and subdivision (r) as
44 added by section 1 of part HH of chapter 59 of the laws of 2006, para-
45 graphs (iii), (iv), (v) and (vi) of subdivision (d) as added by section
46 5 of part A of chapter 63 of the laws of 2005, subdivision (e) as
47 amended and subdivisions (m), (n) and (o) as added by chapter 708 of the
48 laws of 1993, subdivision (h) as amended by chapter 39 of the laws of
49 2004, subdivision (p) as added by chapter 170 of the laws of 1994,
50 subdivision (q) as amended by chapter 161 of the laws of 2005, subdivi-
51 sions (s) and (t) as added by section 1 of part V-1 of chapter 109 of
52 the laws of 2006, subdivision (u) as added by chapter 494 of the laws of
53 2008 and subdivisions (a), (e), (f), (k), and (m) as further amended
S. 60--A 43 A. 160--A
1 pursuant to section 15 of part GG of chapter 63 of the laws of 2000, is
2 amended to read as follows:
3 S 957. Definitions. As used in this article, the following words and
4 terms shall have the following meanings unless the context shall indi-
5 cate another or different meaning or intent:
6 (a) "Applicant" shall mean the county, city, town or village submit-
7 ting an application in the manner authorized by local law for desig-
8 nation of an area as an empire zone.
9 (b) "Commissioner" shall mean the commissioner of economic develop-
10 ment.
11 (c) "Minority-owned business enterprise" shall {mean a business enter-
12 prise, including a sole proprietorship, partnership or corporation, that
13 is:
14 (i) at least fifty-one percent owned by one or more minority group
15 members;
16 (ii) an enterprise in which such minority ownership is real, substan-
17 tial and continuing;
18 (iii) an enterprise in which such minority ownership has and exercises
19 the authority to control independently the day-to-day business decisions
20 of the enterprise; and
21 (iv) an enterprise authorized to do business in this state and inde-
22 pendently owned and operated} HAVE THE SAME MEANING AS PROVIDED IN
23 SECTION THREE HUNDRED TEN OF THE EXECUTIVE LAW.
24 (d) "Empire zone" shall mean an area within the state that has been
25 designated as an empire zone pursuant to this article and:
26 (i) all empire zones designated under paragraph (i) of subdivision (a)
27 and subdivision (d) of section nine hundred fifty-eight of this article
28 shall be referred to as "investment zones" and shall be wholly contained
29 within up to three distinct and separate contiguous areas; provided,
30 however, that empire zones designated prior to the enactment of this
31 paragraph shall identify up to three distinct and separate contiguous
32 areas, which shall equal up to their total allotted acreage at the time
33 of designation by January first, two thousand six. Provided however, the
34 existing zone must include as much designated acreage into the distinct
35 and separate contiguous areas as possible. Provided, however, notwith-
36 standing the provisions of paragraphs (i) and (ii) of subdivision (a) of
37 section nine hundred fifty-eight and subdivision (d) of section nine
38 hundred fifty-nine of this article a regionally significant project may
39 be located outside of the investment zone`s distinct and separate
40 contiguous areas, provided such significant project is located within
41 the zone applicant`s municipal boundaries. Provided further however, if
42 the investment zone is located in a county that does not have a develop-
43 ment zone such significant project may be located within the county`s
44 boundaries. For the purpose of this article a "regionally significant
45 project" shall mean: a manufacturer projecting the creation of fifty or
46 more jobs; or an agri-business or high tech or biotech business making a
47 capital investment of ten million dollars and creating twenty or more
48 jobs; or a financial or insurance services or distribution center creat-
49 ing three hundred or more jobs; or a clean energy research and develop-
50 ment enterprise shall be eligible as a regionally significant project as
51 determined by {the local zone administrative board and} the commission-
52 er. Other projects may be considered by the zone designation board;
53 (ii) all empire zones designated under subdivisions (b) and (c) of
54 section nine hundred fifty-eight of this article shall be referred to as
55 "development zones" and shall be wholly contained within up to six
56 distinct and separate contiguous areas. However, an empire zone located
S. 60--A 44 A. 160--A
1 in more than one county at the time of designation shall be wholly
2 contained in up to twelve distinct and separate contiguous areas.
3 Provided, however, that empire zones designated prior to the enactment
4 of this paragraph shall identify up to six distinct and separate contig-
5 uous areas, which shall equal up to their total allotted acreage at the
6 time of designation, by January first, two thousand six or in the case
7 of an empire zone located in more than one county, at the time of desig-
8 nation shall identify twelve distinct and separate contiguous areas.
9 Provided however, the existing zone must include as much designated
10 acreage into the distinct and separate contiguous areas as possible.
11 Provided, however, a regionally significant project may be located
12 outside of the development zone`s distinct and separate contiguous
13 areas. For the purpose of this article a "regionally significant
14 project" shall mean: a manufacturer projecting the creation of fifty or
15 more jobs; or an agri-business or high tech or biotech business making a
16 capital investment of ten million dollars and creating twenty or more
17 jobs; or a financial or insurance services or distribution center creat-
18 ing three hundred or more jobs; or a clean energy research and develop-
19 ment enterprise shall be eligible as a regionally significant project as
20 determined by {the local zone administrative board and} the commission-
21 er. Other projects may be considered by the zone designation board;
22 (iii) provided, however, a zone may apply BY NO LATER THAN MARCH THIR-
23 TY-FIRST, TWO THOUSAND NINE to add one additional distinct and separate
24 contiguous area, pursuant to paragraphs (i) and (ii) of this subdivi-
25 sion, to such zone upon the demonstration of need, provided, however,
26 such additional distinct and separate contiguous area shall not result
27 in an empire zone that exceeds the maximum allotted acreage;
28 (iv) a "development zone", pursuant to paragraph (ii) of this subdivi-
29 sion, shall apply BY NO LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND
30 NINE, pursuant to subdivisions (a) and (d) of section nine hundred
31 fifty-eight of this article, to have up to three distinct and separate
32 contiguous areas defined as "investment zones", pursuant to this subdi-
33 vision;
34 (v) any certified businesses located outside of the empire zone`s
35 distinct and separate contiguous areas, pursuant to this section, shall
36 be allowed the empire zone benefits until they are decertified; and
37 (vi) the boundaries that comprise the distinct and separate contiguous
38 areas in this subdivision must include at least the real property on one
39 side of a public thoroughfare when such street is used as a boundary. No
40 boundary shall be constructed as to connect one tax parcel to another
41 tax parcel by using a thoroughfare`s center line, sidewalk or other
42 similar means of connecting a non-contiguous area to the zone`s distinct
43 and separate contiguous areas.
44 (e) "Local empire zone administrative board" shall mean the entity
45 designated by the applicant that is responsible for monitoring, evaluat-
46 ing and coordinating all empire zone benefits on behalf of the appli-
47 cant. Such entity shall consist of at least six members, none of whom
48 shall be the local empire zone certification officer, and shall be
49 representative of local businesses, organized labor, community organiza-
50 tions, financial institutions, local educational institutions and resi-
51 dents of the empire zone.
52 (f) {"Local empire zone certification officer" shall mean the official
53 designated by the applicant who is responsible for jointly certifying
54 and decertifying together with the commissioner and the commissioner of
55 labor those business enterprises eligible to receive benefits pursuant
56 to this article.
S. 60--A 45 A. 160--A
1 (g)} "Women-owned business enterprise" shall {mean a business enter-
2 prise, including a sole proprietorship, partnership or corporation, that
3 is:
4 (i) at least fifty-one percent owned by one or more United States
5 citizens or permanent resident aliens who are women;
6 (ii) an enterprise in which the ownership interest of such women is
7 real, substantial and continuing;
8 (iii) an enterprise in which such women ownership has and exercises
9 the authority to control independently the day-to-day business decisions
10 of the enterprise; and
11 (iv) an enterprise authorized to do business in this state and inde-
12 pendently owned and operated} HAVE THE SAME MEANING AS PROVIDED IN
13 SECTION THREE HUNDRED TEN OF THE EXECUTIVE LAW.
14 {(h)} (G) "Locally owned business enterprise" shall mean (i) a busi-
15 ness firm in which the total ownership interest held by individuals who
16 are full time bona fide residents of such zone is more than eighty
17 percent, whose business activities are conducted in a manner whereby at
18 least fifty percent of the assets of such firm are located and utilized
19 in such zone, and at least forty percent of such firm`s employees are
20 principally employed in such zone; or (ii) an agricultural cooperative
21 established pursuant to section one hundred eleven of the cooperative
22 corporations law; provided however, for business firms located within
23 zones designated in a city such individuals shall reside within a commu-
24 nity planning board or within traditional neighborhood boundaries and
25 provided further however for business firms located within zones outside
26 of a city such individuals may reside in the county in which the zone is
27 designated.
28 {(i)} (H) "Chief executive" shall mean (i) a county executive or
29 manager of a county; (ii) in a county not having a county executive or
30 manager, the chairperson or other presiding officer of the county legis-
31 lative body; (iii) a mayor of a city or village, except where a city or
32 village has a manager, it shall mean such a manager; or (iv) a supervi-
33 sor of a town, except where a town has a manager, it shall mean such
34 manager.
35 {(j)} (I) "Minority group member" shall {mean a United States citizen
36 or permanent resident alien who is and can demonstrate membership in one
37 of the following groups:
38 (i) Black persons having origins in any of the Black African racial
39 groups;
40 (ii) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban,
41 Central or South American of either Indian or Hispanic origin, regard-
42 less of race;
43 (iii) Native American or Alaskan native persons having origins in any
44 of the original peoples of North America; and
45 (iv) Asian and Pacific Islander persons having origins in any of the
46 Far East countries, South East Asia, the Indian subcontinent or the
47 Pacific Islands} HAVE THE SAME MEANING AS PROVIDED IN SECTION THREE
48 HUNDRED TEN OF THE EXECUTIVE LAW.
49 {(k)} (J) "Targeted employee" shall mean a New York resident who
50 receives empire zone wages pursuant to subdivision nineteen of section
51 two hundred ten of the tax law and who is (i) an eligible individual
52 under the provision of the targeted jobs tax credit (section fifty-one
53 of the internal revenue code), (ii) eligible for benefits under the
54 provisions of the job training partnership act (P.L. 97-300, as
55 amended), (iii) a recipient of public assistance benefits, or (iv) an
56 individual whose income is below the most recently established poverty
S. 60--A 46 A. 160--A
1 rate promulgated by the United States department of commerce, or a
2 member of a family whose family income is below the most recently estab-
3 lished poverty rate promulgated by the appropriate federal agency.
4 An individual who satisfies the criteria set forth in clause (i), (ii)
5 or (iv) of this subdivision at the time of initial employment in the job
6 with respect to which the credit is claimed, or who satisfies the crite-
7 rion set forth in clause (iii) of this subdivision at such time or at
8 any time within the previous two years, shall be a targeted employee so
9 long as such individual continues to receive empire zone wages.
10 {(l)} (K) "Single enterprise" means two or more related business
11 enterprises characterized by an absence of arms length relationships
12 found among enterprises that are not integrated. Factors to be consid-
13 ered, among other things, in determining the existence of a single
14 enterprise are interrelation of operations, common management, central-
15 ized control of labor relations, common ownership and common financial
16 control.
17 {(m)} (L) "Zone administrative entity" shall mean a community-based
18 local development corporation or entity contracting with the local
19 empire zone board pursuant to paragraph (viii) of subdivision {(b)} A of
20 section nine hundred sixty-three of this article or the municipality in
21 which the zone is located in those instances where the municipality
22 actively participates in the local administration of the zone program.
23 {(n)} (M) "Human resource development" shall mean job preparation and
24 placement, skills training and education for zone residents and employ-
25 ees of zone businesses, child and family care services and facilities,
26 and activities to improve the health benefits and other benefits
27 provided by zone businesses to their employees.
28 {(o)} (N) "Community development projects" shall mean projects spon-
29 sored by not-for-profit organizations which have been approved by the
30 zone board, which will advance the zone development plan. For purposes
31 described in subdivision twenty of section two hundred ten, subsection
32 (l) of section six hundred six, subsection (d) of section fourteen
33 hundred fifty-six and subdivision (h) of section fifteen hundred eleven
34 of the tax law, such projects shall be limited to child care programs
35 serving zone residents and businesses; community development projects in
36 direct support of economic development and business revitalization
37 activities, such as commercial revitalization projects; and business
38 development activities of local development corporations.
39 {(p)} (O) "Zone equivalent area" shall mean an area designated as such
40 pursuant to FORMER subdivision (bb) of section nine hundred fifty-nine
41 of this article.
42 {(q)} (P) "Cost benefit analysis" shall mean, FOR PURPOSES OF PARA-
43 GRAPH (I) OF SUBDIVISION (A) OF SECTION NINE HUNDRED FIFTY-NINE AND
44 SUBDIVISION (B) OF SECTION NINE HUNDRED SEVENTY OF THIS ARTICLE, a meth-
45 od of determining whether to certify a business {pursuant to section
46 nine hundred sixty-three of this article} ENTERPRISE based on the {busi-
47 ness`} BUSINESS ENTERPRISE`S projected job creation and/or investment
48 {in the zone} AT THE LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER,
49 versus the TOTAL amount of empire zone TAX benefits the business ENTER-
50 PRISE will potentially be allowed to {claim pursuant to sections four-
51 teen, fifteen, and sixteen of the tax law.} USE AND HAVE REFUNDED TO IT
52 AND SHALL BE A RATIO OF AT LEAST 20:1, THE NUMERATOR OF WHICH IS THE SUM
53 OF (I) THE ESTIMATED VALUE OF ALL WAGES AND BENEFITS PAID FOR THE FIRST
54 THREE YEARS OF CERTIFICATION TO ALL EXISTING AND PROJECTED EMPLOYEES OF
55 THE BUSINESS ENTERPRISE AT THE LOCATION OR LOCATIONS APPROVED BY THE
56 COMMISSIONER AND (II) THE ESTIMATED VALUE OF CAPITAL INVESTMENTS FOR THE
S. 60--A 47 A. 160--A
1 FIRST THREE YEARS OF CERTIFICATION AT THE LOCATION OR LOCATIONS APPROVED
2 BY THE COMMISSIONER, AND THE DENOMINATOR OF WHICH IS THE ESTIMATED
3 AMOUNT OF TOTAL EMPIRE ZONE TAX BENEFITS THAT MAY BE USED AND MAY BE
4 REFUNDED FOR THE FIRST THREE YEARS OF CERTIFICATION AT THE LOCATION OR
5 LOCATIONS APPROVED BY THE COMMISSIONER.
6 {Such cost benefit analysis shall include, but not be limited to, an
7 estimate for the first five years commencing in the year in which the
8 business is certified, of: (i) the amount of all the state tax credits
9 under the empire zones program which may be claimed by the entity or its
10 members, partners, or shareholders each year, (ii) the value of the
11 sales tax exemption on an annual basis, (iii) the estimated number of
12 jobs created, (iv) the total annual remuneration and benefits for the
13 employees within the zone location, (v) the cost of construction, reno-
14 vation or expansion of the business`s location within the zone, and (vi)
15 the investment being made with respect to tangible personal property or
16 other tangible property which is depreciable pursuant to section 179(d)
17 of the Internal Revenue Code. Non-quantifiable factors may include a
18 business enterprise`s positive impact on an area that has high commer-
19 cial vacancy rates, and/or is characterized by blight and disinvestment
20 or the business enterprise is part of a strategic industry cluster or
21 supply chain; or is anticipated to access zone capital credits.}
22 (Q) "COST BENEFIT ANALYSIS" SHALL MEAN, FOR PURPOSES OF SUBDIVISION
23 (W) OF SECTION NINE HUNDRED FIFTY-NINE AND SUBDIVISION (D) OF SECTION
24 NINE HUNDRED SEVENTY OF THIS CHAPTER, A METHOD OF DETERMINING WHETHER TO
25 CONTINUE TO CERTIFY A BUSINESS ENTERPRISE AT THE LOCATION OR LOCATIONS
26 APPROVED BY THE COMMISSIONER BASED ON THE BUSINESS ENTERPRISE`S ACTUAL
27 JOB CREATION AND/OR CAPITAL INVESTMENT VERSUS THE TOTAL AMOUNT OF EMPIRE
28 ZONE BENEFITS THE BUSINESS ENTERPRISE USED AND HAD REFUNDED AND SHALL BE
29 A RATIO OF AT LEAST 20:1, THE NUMERATOR OF WHICH IS THE SUM OF (I) THE
30 ACTUAL VALUE OF ALL WAGES AND BENEFITS PAID FOR AT LEAST THREE YEARS OF
31 CERTIFICATION TO ALL EMPLOYEES OF THE BUSINESS ENTERPRISE AT THE
32 LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER AND (II) THE VALUE OF
33 CAPITAL INVESTMENTS FOR AT LEAST THREE YEARS AT THE LOCATION OR
34 LOCATIONS APPROVED BY THE COMMISSIONER, AND THE DENOMINATOR OF WHICH IS
35 THE TOTAL AMOUNT OF EMPIRE ZONE TAX BENEFITS ACTUALLY REFUNDED AND USED
36 BY THE BUSINESS ENTERPRISE FOR AT LEAST THREE YEARS, AT THE LOCATION OR
37 LOCATIONS APPROVED BY THE COMMISSIONER.
38 (r) "Clean energy research and development enterprise" shall mean any
39 electric generating facility that used pulverized coal technology,
40 circulating fluidized bed technology or integrated gasification combined
41 cycle technology and that is capable of capturing carbon dioxide for
42 sequestration or capable of being retrofitted to capture carbon dioxide
43 for sequestration.
44 (s) "Qualified investment project" shall mean a project (i) located
45 within an empire zone, (ii) at which five hundred or more jobs will be
46 created, provided such jobs are new to the state and are in addition to
47 any other jobs previously created by the owner of such project in the
48 state, and (iii) which will consist of tangible personal property and
49 other tangible property, including buildings and structural components
50 of buildings, described in subparagraphs (i), (ii), (iii), (iv) and
51 clause (A) or (C) of subparagraph (v) of paragraph (b) of subdivision
52 twelve-B of section two hundred ten of the tax law, the basis of which
53 for federal income tax purposes will equal or exceed seven hundred fifty
54 million dollars. Provided however, the owner of such project does not
55 employ more than two hundred persons in the state at the time such
56 project is commenced.
S. 60--A 48 A. 160--A
1 (t) "Significant capital investment project" shall mean a project (i)
2 located within an empire zone, (ii) which will be either a newly
3 constructed facility or a newly constructed addition to or expansion of
4 a qualified investment project, consisting of tangible personal property
5 and other tangible property, including buildings and structural compo-
6 nents of buildings, described in subparagraphs (i), (ii), (iii), (iv)
7 and clause (A) or (C) of subparagraph (v) of paragraph (b) of subdivi-
8 sion twelve-B of section two hundred ten of the tax law, the basis of
9 which for federal income tax purposes will equal or exceed seven hundred
10 fifty million dollars, (iii) which is constructed after the basis for
11 federal income tax purposes of the property comprising such qualified
12 investment project equals or exceeds seven hundred fifty million
13 dollars, and (iv) at which five hundred or more jobs will be created,
14 provided such jobs are new to the state and are in addition to any other
15 jobs previously created by the owner of such project in the state.
16 (u) In the case of a manufacturer: (i) that has acquired a silicon
17 manufacturing facility: (A) where more than seven hundred fifty persons
18 are employed; (B) that has been designated as a regionally significant
19 project as defined in this article; and (C) which has a cost or other
20 basis for federal income tax purposes in tangible personal property at
21 such silicon manufacturing facility, including equipment and machinery,
22 buildings and structural components of buildings, equal to or exceeding
23 two hundred million dollars; and (ii) that is projecting the creation of
24 fifty or more silicon manufacturing jobs at the silicon manufacturing
25 facility referred to in paragraph (i) of this subdivision, then, subject
26 to the written approval of the commissioner, such manufacturer may elect
27 an effective date for designation of such manufacturing facility as a
28 regionally significant project for purposes of this article, and
29 provided such manufacturer has been certified as an empire zone enter-
30 prise pursuant to this article, and has obtained the written approval of
31 the commissioner, may elect an effective date for such certification as
32 an empire zone enterprise pursuant to this article, provided that such
33 dates are: (A) no earlier than the date that the manufacturing facility
34 is acquired; (B) no earlier than sixty days prior to the date upon which
35 a local law was enacted by the city, county, town or village approving
36 the inclusion of the regionally significant project within the empire
37 zone; and (C) no later than the date the local zone administrative board
38 approves the application for certification as an empire zone enterprise,
39 and further provided that such effective date for designation and such
40 effective date for certification as an empire zone enterprise pursuant
41 to this article shall be the same date. Subject to the written approval
42 of the commissioner, such election shall be made by such manufacturer to
43 the commissioner on or before the second anniversary of the date upon
44 which the local law was enacted by the city, county, town or village
45 approving the inclusion of the regionally significant project within the
46 empire zone.
47 S 2. Paragraph (ii) and the opening paragraph of paragraph (vi) of
48 subdivision (a), subdivision (b), the opening paragraph of subdivision
49 (c), the opening paragraph of subdivision (d) and subdivision (g) of
50 section 958 of the general municipal law, paragraph (ii) and the opening
51 paragraph of paragraph (vi) of subdivision (a) and the opening paragraph
52 of subdivision (c) as amended by chapter 708 of the laws of 1993, subdi-
53 vision (b) as amended by chapter 624 of the laws of 1990, the opening
54 paragraph of subdivision (d) as amended by chapter 41 of the laws of
55 2000, subdivision (g) as added by section 5 of part A of chapter 63 of
56 the laws of 2005, and paragraph (ii) of subdivision (a), subdivision
S. 60--A 49 A. 160--A
1 (b), the opening paragraph of subdivision (c), and the opening paragraph
2 of subdivision (d) as further amended pursuant to section 15 of part GG
3 of chapter 63 of the laws of 2000, are amended to read as follows:
4 (ii) lands nearby or contiguous to census tracts or block numbering
5 areas described in paragraph (i) of this subdivision may be eligible to
6 be included within an empire zone if, upon the request of the applicant
7 BY MARCH THIRTY-FIRST, TWO THOUSAND NINE, the commissioner finds, in
8 accordance with regulations promulgated pursuant to this article, that
9 such additional lands have significant potential for business develop-
10 ment and job creation, which will enhance economic revitalization of the
11 zone and benefit zone residents; provided, however, that lands nearby
12 shall not be included in a zone until the commissioner, in consultation
13 with the director of the budget, promulgates regulations governing the
14 inclusion of such lands;
15 such other requirements as may be established in regulations promul-
16 gated by the commissioner {with the approval of the director of the
17 budget and after consultation with the commissioner of labor}, including
18 but not limited to:
19 (b) Notwithstanding the provisions of paragraph (i) of subdivision (a)
20 of this section, any county in which the average rate of unemployment in
21 the two most recent calendar years was at least one and one-quarter
22 times the state average for those years and in which the rate of poverty
23 for individuals was at least thirteen percent according to the most
24 recent census data available, and which does not contain a census tract
25 or tracts, portion of a block numbering area or a city, town or village
26 which meets the criteria specified in such paragraph (i) of subdivision
27 (a), may apply BY NO LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND NINE
28 for designation of an area within a municipality as an empire zone. The
29 area proposed for designation shall be characterized by pervasive pover-
30 ty, high unemployment and general economic distress.
31 Notwithstanding the provisions of paragraph (i) of subdivision (a) of
32 this section, any county may apply BY NO LATER THAN MARCH THIRTY-FIRST,
33 TWO THOUSAND NINE for designation of an area within a municipality as an
34 empire zone provided that the following requirements are met:
35 Notwithstanding the provisions of paragraph (i) of subdivision (a) of
36 this section, any municipality may apply BY NO LATER THAN MARCH THIRTY-
37 FIRST, TWO THOUSAND NINE for designation as an empire zone for an area
38 which shall include a United States census tract or tracts or block
39 numbering area or areas or portions thereof, each full census tract or
40 portion of a block numbering area of which according to the most recent
41 census data available has:
42 (g) Notwithstanding any other provision of this section, after March
43 thirty-first, two thousand five, a municipality shall demonstrate in an
44 application for designation as an empire zone SUBMITTED NO LATER THAN
45 MARCH THIRTY-FIRST, TWO THOUSAND NINE, that there is no viable alterna-
46 tive area or areas that has or have existing public sewer or water
47 infrastructure available other than the proposed zone.
48 S 3. Section 959 of the general municipal law, as amended by section 5
49 of part A of chapter 63 of the laws of 2005 and subdivision (w) as
50 amended by section 2 of part CCC1 of chapter 57 of the laws of 2008, is
51 amended to read as follows:
52 S 959. Responsibilities of the commissioner. The commissioner shall:
53 (a) {After consultation with the director of the budget, the commis-
54 sioner of labor, and the commissioner of taxation and finance, promul-
55 gate} PROMULGATE regulations, WHICH, NOTWITHSTANDING ANY PROVISIONS TO
56 THE CONTRARY IN THE STATE ADMINISTRATIVE PROCEDURE ACT, MAY BE ADOPTED
S. 60--A 50 A. 160--A
1 ON AN EMERGENCY BASIS, governing (i) {criteria of eligibility for empire
2 zone designation, provided, however, that such criteria be approved by
3 the director of the budget; (ii) the application process; (iii)} the
4 {joint} certification by the commissioner{, the commissioner of labor,
5 and, in the case of an empire zone, the local empire zone certification
6 officer,} as to the eligibility of business enterprises for benefits
7 referred to in section nine hundred sixty-six of this article{,
8 provided, however, that a business enterprise that has shifted its oper-
9 ations, or some portions thereof, from an area within New York state not
10 designated as an empire zone or zone equivalent area to an area so
11 designated shall not be certified to receive such benefits except where
12 such shift is entirely within a municipality and has been approved by
13 the local governing body of such municipality or in situations where it
14 has been established, after a public hearing, that extraordinary circum-
15 stances exist which warrant the relocation of a business, in whole or
16 part, into an empire zone or a zone equivalent area from another munici-
17 pality and the municipality from which the business is relocating
18 approves of such relocation; or where such shift in operations is from a
19 business incubator facility operated by a municipality or by a public or
20 private not-for-profit entity which provides space and business support
21 services to newly established firms}; and {(iv)} (II) the {joint} decer-
22 tification by the commissioner{, the commissioner of labor, and, in the
23 case of an empire zone, the local empire zone certification officer} so
24 as to revoke the certification of business enterprises for benefits
25 referred to in section nine hundred sixty-six of this article with
26 respect to an empire zone or zone equivalent area upon a finding that
27 (1) the business enterprise made material misrepresentations of fact on
28 its application for certification OR IN ANY OF ITS BUSINESS ANNUAL
29 REPORTS, or the business enterprise failed to disclose facts in its
30 application for certification that would constitute grounds for not
31 issuing a certification; (2) the business enterprise has failed to
32 construct, expand, rehabilitate or operate OR INVEST IN its facility
33 substantially in accordance with the representations contained in its
34 application for certification; (3) the business enterprise has failed to
35 create new employment or prevent a loss of employment in the empire zone
36 or zone equivalent area {provided, however, that such failure was not
37 due to economic circumstances or conditions which such business could
38 not anticipate or which were beyond its control}; (4) where applicable,
39 the business enterprise has failed to submit an annual report after it
40 has applied for zone {incentives} TAX BENEFITS or program assistance
41 based on new hires or investments or failed to submit other information
42 {to the local empire zone certification officer} when due; {or} (5) the
43 business enterprise has committed substantial violations of laws for the
44 protection of workers including all federal, state and local labor laws,
45 rules or regulations; OR (6) THE BUSINESS ENTERPRISE HAS FAILED TO MEET
46 THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS AS ESTABLISHED BY AND
47 CONDUCTED PURSUANT TO THIS ARTICLE UNLESS THE COMMISSIONER DETERMINES IN
48 HIS OR HER SOLE DISCRETION THAT CONTINUED CERTIFICATION IS WARRANTED,
49 BASED UPON OTHER ECONOMIC, SOCIAL AND ENVIRONMENTAL FACTORS, AS PROVIDED
50 IN SUBDIVISION (W) OF THIS SECTION; said regulations shall provide that
51 whenever any business enterprise is decertified with respect to an
52 empire zone: (A) the date determined to be the earliest event constitut-
53 ing grounds for revoking certification shall be the effective date of
54 decertification; (B) its certified single enterprise, if any, may also
55 be decertified; and (C) the commissioner shall notify the commissioner
56 of taxation and finance that such decertification has occurred, and such
S. 60--A 51 A. 160--A
1 notification should include the effective date of such decertification
2 and the zone or zone equivalent area to which such decertification
3 applies; WITH RESPECT TO ANY BUSINESS ENTERPRISE DECERTIFIED PURSUANT TO
4 SUBPARAGRAPH SIX OF PARAGRAPH (II) OF THIS SUBDIVISION, THAT DECERTIF-
5 ICATION (1) WILL BE EFFECTIVE FOR A TAXABLE YEAR BEGINNING ON OR AFTER
6 JANUARY FIRST, TWO THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND
7 NINE AND FOR SUBSEQUENT TAXABLE YEARS FOR A BUSINESS ENTERPRISE FOR
8 WHICH A REVIEW IS REQUIRED TO BE CONDUCTED PURSUANT TO SUBDIVISION (W)
9 OF THIS SECTION IN CALENDAR YEAR TWO THOUSAND NINE, AND (2) THEREAFTER
10 WILL BE EFFECTIVE FOR THE TAXABLE YEAR DURING WHICH THE COMMISSIONER
11 MAKES HIS OR HER DETERMINATION (PRIOR TO ANY APPEAL) TO REVOKE THE
12 CERTIFICATION OF A BUSINESS ENTERPRISE AND FOR SUBSEQUENT TAXABLE YEARS;
13 (b) Receive BY NO LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND NINE and
14 review applications for designation of areas as empire zones;
15 (c) Analyze and make recommendations to the empire zones designation
16 board for designation of areas as empire zones, provided, however, that
17 all such areas recommended by the commissioner shall meet the require-
18 ments of this article;
19 (d) {Review new applications to replace any previously designated
20 empire zone the designation of which has been terminated or withdrawn;
21 (e)} File notice of the designation or redesignation of an empire zone
22 or of the revision or termination of such designation with the appli-
23 cant, the department of taxation and finance, the secretary of state,
24 with the county, city, town or village clerk of each county, city, town,
25 or village, respectively, in which the empire zone is located, with the
26 school district governing body in which the empire zone is located, with
27 the state board of real property services and with other state and local
28 entities; provided, however, that such notice shall specify the date
29 such action was taken and shall contain a description sufficient to
30 identify the empire zone, including the names of the abutting streets,
31 roads, highways, bodies of water, or other identifying physical
32 features;
33 {(f)} (E) Request, and shall receive from any department, division,
34 board, bureau, commission, agency or public authority of the state such
35 assistance as may be necessary to establish a procedure whereby applica-
36 tions submitted by business entities, community-based organizations,
37 not-for-profit organizations, human service agencies, labor unions and
38 municipal agencies located within an empire zone requesting financial
39 and other assistance provided by state programs, including, but not
40 limited to, capital development, human resource development, business
41 assistance, job training and job placement shall, consistent with feder-
42 al law, be given priority over applications submitted by entities not
43 located in empire zones;
44 {(g)} (F) Establish a priority for the allocation of authority to
45 issue private activity bonds for the benefit of municipalities and busi-
46 ness enterprises located or to be located within empire zones;
47 {(h)} (G) Coordinate, with the local empire zone administrative board
48 and state agencies and authorities, the provision of business develop-
49 ment programs and services for each empire zone in order to stimulate
50 the creation and development of new small businesses, including new
51 small minority-owned and women-owned business enterprises, and may
52 request and shall receive from any department, division, board, bureau,
53 commission, agency or public authority of the state such assistance as
54 may be necessary;
55 {(i)} (H) Coordinate with the comptroller and the commissioner of
56 taxation and finance a linked deposit program. The comptroller and the
S. 60--A 52 A. 160--A
1 commissioner of taxation and finance are hereby authorized and empowered
2 to enter into agreements with financial institutions located in or serv-
3 ing the empire zones, to provide for the deposit of funds administered
4 jointly by them in such institutions, at reduced rates of return to the
5 state, in return for commitments by such institutions to businesses of
6 loans of comparable amounts, at reduced interest rates, for business
7 development projects in the zones that will create or preserve jobs;
8 {(j)} (I) Assist each local empire zone board in preparing a small
9 business assistance plan as required by section nine hundred sixty-three
10 of this article and coordinate with the local empire zone administrative
11 board and state agencies and authorities the development of small busi-
12 ness procurement, export and marketing programs for businesses within
13 the empire zones;
14 {(k)} (J) Promulgate regulations{, in consultation with the commis-
15 sioner of labor,} for program evaluation and coordinate implementation
16 of an evaluation system, which is capable of compiling and analyzing
17 accurate and consistent information necessary for an assessment of
18 whether statutory objectives and criteria are being met;
19 {(l)} (K) Review performance objectives and progress in meeting objec-
20 tives with zone boards and zone administrative entities as part of the
21 annual administrative contract process;
22 {(m)} (L) Assist zone boards and zone administrative entities to
23 effect and implement job training and social services agreements and
24 programs provided for in paragraphs (v), (vi) and (vii) of subdivision
25 {(b)} (A) of section nine hundred sixty-three of this article and
26 request and receive from any agency or authority of the state such
27 assistance as may be necessary to improve the delivery and coordination
28 of human resource development programs to the zones;
29 {(n)} (M) Assist zones in increasing their child care capacity and in
30 planning special care activities, including the provision of technical
31 assistance by the department in planning for the provision of child care
32 services in the zones;
33 {(o)} (N) Coordinate with the department of labor, the state education
34 department, the job training partnership council and agencies of the
35 state the inclusion in annual and biennial plans of such entities strat-
36 egies for increasing and improving human resource development services
37 on a priority basis, consistent with federal statutory and regulatory
38 requirements, to residents of the zones and employees of zone busi-
39 nesses, including, but not limited to, the governor`s plan for coordi-
40 nation and special services of the job training partnership council, the
41 jobs plan and Wagner-Peyser annual plan for services of the department
42 of labor, and the career education state plan of the state education
43 department;
44 {(p)} (O) Arrange with the job training partnership council the
45 provision of the workforce investment act funds for use within the zones
46 with the cooperation of the service delivery areas in the governor`s
47 plan for coordination and special services;
48 {(q)} (P) Subject to the availability of funds, arrange for the allo-
49 cation and reservation of funds from the infrastructure improvement
50 programs of state agencies and authorities to assist the zones to make
51 public improvements necessary for community, commercial, industrial and
52 tourism development projects in support of zone revitalization;
53 {(r)} (Q) Systematically enlist other state agencies and authorities
54 to participate in zone programs and projects and in cooperative planning
55 of interagency zone activities in support of zone revitalization
56 efforts;
S. 60--A 53 A. 160--A
1 {(s)} (R) Recommend for economic development loan and grant programs
2 of the department of economic development, urban development corpo-
3 ration, job development authority, and science and technology foundation
4 special terms and conditions for viable zone projects and programs;
5 {(t)} (S) Award preference to be given to applications submitted by or
6 on behalf of zones for entrepreneurial assistance programs under article
7 nine of the omnibus economic development act of nineteen hundred eight-
8 y-seven to support the creation of new entrepreneurial development and
9 entrepreneurial support centers;
10 {(u)} (T) Coordinate with the urban development corporation the
11 creation of a special category of assistance for zones within the
12 regional economic development partnership program, which will make
13 available economic development assistance grants for zone programs and
14 activities, including, but not limited to, planning, service coordi-
15 nation, and local institutional capacity building for human resource
16 development necessary for economic revitalization; planning and develop-
17 ment of small business incubators; job placement and preparedness
18 programs for zones residents; education and training programs for zone
19 businesses; child care programs and projects supportive of business
20 development; technical assistance for minority and women-owned business
21 development; training for zone officials; business and tourism develop-
22 ment and marketing programs; and other innovative programs and activ-
23 ities in support of economic and community development within the zones;
24 {and}
25 {(v)} (U) Assist in the development of a plan, in coordination with
26 the health and insurance departments, to assist zones in obtaining
27 affordable employee health insurance for small business enterprises
28 located within the zone{.};
29 {(w)} (V) Approve applications for qualification of a business enter-
30 prise as the owner of a qualified investment project or as the owner of
31 a significant capital investment project, as defined in subdivisions (s)
32 and (t), respectively, of section nine hundred fifty-seven of this arti-
33 cle. As a condition for approval of such application, the commissioner
34 is authorized to specify certain requirements to be satisfied as a
35 condition for approval of such application as the commissioner deems
36 necessary to ensure that the project will make a substantial contrib-
37 ution to the economic development of this state. An application for
38 qualification of a business enterprise as the owner of a qualified
39 investment must be submitted by December thirty-first, two thousand
40 nine. An application for qualification of a business as the owner of a
41 significant capital investment project as defined in subdivision (t) of
42 section nine hundred fifty-seven of this article, which application is
43 submitted by an entity previously qualified by the commissioner as the
44 owner of a qualified investment project or an entity which is a related
45 person, as that term is defined in section 465(b)(3)(c) of the internal
46 revenue code, to an entity previously qualified by the commissioner as
47 the owner of a qualified investment project, must be submitted by June
48 thirtieth, two thousand eleven. No applications submitted after these
49 dates may be approved; AND
50 (W) CONDUCT A REVIEW DURING CALENDAR YEAR TWO THOUSAND NINE OF ALL
51 BUSINESS ENTERPRISES CERTIFIED BEFORE APRIL FIRST, TWO THOUSAND FIVE TO
52 DETERMINE WHETHER THE BUSINESS ENTERPRISES HAVE MET THE REQUIREMENTS OF
53 THE COST-BENEFIT ANALYSIS AS SET FORTH IN SUBDIVISION (Q) OF SECTION
54 NINE HUNDRED FIFTY-SEVEN OF THIS ARTICLE AND THE REGULATIONS PROMULGATED
55 UNDER THIS ARTICLE. THEREAFTER IN SUCCEEDING CALENDAR YEARS, THE COMMIS-
56 SIONER SHALL CONDUCT A REVIEW OF ALL BUSINESS ENTERPRISES CERTIFIED ON
S. 60--A 54 A. 160--A
1 OR AFTER APRIL FIRST, TWO THOUSAND FIVE, TO DETERMINE WHETHER THE BUSI-
2 NESS ENTERPRISES HAVE MET THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS
3 AS SET FORTH IN SUBDIVISION (Q) OF SECTION NINE HUNDRED FIFTY-SEVEN OF
4 THIS ARTICLE AND THE REGULATIONS PROMULGATED UNDER THIS ARTICLE. THE
5 COST-BENEFIT ANALYSES REFERRED TO IN THIS SUBDIVISION SHALL BE BASED
6 UPON DATA CONTAINED IN AT LEAST THREE BUSINESS ANNUAL REPORTS FILED BY
7 THE BUSINESS ENTERPRISE. IF THE COMMISSIONER DETERMINES THAT A BUSINESS
8 ENTERPRISE MEETS THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS DESCRIBED
9 ABOVE, THE COMMISSIONER SHALL ISSUE AN EMPIRE ZONE RETENTION CERTIFICATE
10 TO THE BUSINESS ENTERPRISE ESTABLISHING THAT THE BUSINESS ENTERPRISE HAS
11 RETAINED ITS CERTIFICATION UNDER THIS ARTICLE. IF ANY BUSINESS ENTER-
12 PRISE FAILS THE COST-BENEFIT ANALYSIS DESCRIBED ABOVE, THE COMMISSIONER
13 SHALL REVOKE THE CERTIFICATION OF SUCH BUSINESS ENTERPRISE PURSUANT TO
14 PARAGRAPH (II) OF SUBDIVISION (A) OF THIS SECTION AND AS SPECIFIED HERE-
15 IN; PROVIDED, HOWEVER, THE COMMISSIONER MAY CONSIDER, IN HIS OR HER SOLE
16 DISCRETION, OTHER ECONOMIC, SOCIAL AND ENVIRONMENTAL FACTORS WHEN EVALU-
17 ATING THE COSTS AND BENEFITS OF A PROJECT TO THE STATE AND WHETHER
18 CONTINUED CERTIFICATION IS WARRANTED BASED ON SUCH FACTORS. THE COMMIS-
19 SIONER SHALL PROVIDE WRITTEN NOTIFICATION TO SUCH BUSINESS ENTERPRISE OF
20 HIS OR HER DETERMINATION TO REVOKE THE CERTIFICATION, INCLUDING THE
21 REASONS THEREFOR. SUCH NOTIFICATION SHALL STATE THAT THE BUSINESS ENTER-
22 PRISE MAY APPEAL THE DETERMINATION BY SENDING A WRITTEN NOTICE TO THE
23 COMMISSIONER OF SUCH APPEAL NO LATER THAN TEN BUSINESS DAYS FROM THE
24 DATE OF THE COMMISSIONER`S REVOCATION NOTIFICATION. PROVIDED THAT THE
25 BUSINESS ENTERPRISE APPEALS THE COMMISSIONER`S DETERMINATION WITHIN TEN
26 BUSINESS DAYS OF THE COMMISSIONER`S REVOCATION NOTIFICATION, THE BUSI-
27 NESS ENTERPRISE MAY PRESENT A WRITTEN SUBMISSION TO THE COMMISSIONER NO
28 LATER THAN SIXTY DAYS FOLLOWING THE DATE THE COMMISSIONER`S REVOCATION
29 NOTIFICATION WAS SENT TO THE BUSINESS ENTERPRISE EXPLAINING WHY IT
30 FAILED THE COST-BENEFIT ANALYSIS. THE COMMISSIONER SHALL CONSIDER THE
31 EXPLANATION PROVIDED BY THE BUSINESS ENTERPRISE, BUT SHALL NOT REVERSE
32 THE DETERMINATION TO REVOKE THE BUSINESS ENTERPRISE`S CERTIFICATION IF
33 THE COMMISSIONER FINDS IN HIS OR HER SOLE DISCRETION THAT THERE WAS
34 INSUFFICIENT EVIDENCE PRESENTED DEMONSTRATING THAT THE BUSINESS ENTER-
35 PRISE IN FACT MET THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS, OR THAT
36 ANY EXTRAORDINARY CIRCUMSTANCES OCCURRED WHICH WOULD EXPLAIN WHY THE
37 BUSINESS ENTERPRISE FAILED THE COST-BENEFIT ANALYSIS.
38 S 4. Subdivisions (b) and (c) of section 959-b of the general munici-
39 pal law, as added by section 17 of part W1 of chapter 109 of the laws of
40 2006, are amended to read as follows:
41 (b) The commissioner of economic development shall serve as the sole
42 certification officer for businesses seeking certification as a clean
43 energy enterprise. The commissioner of economic development, after
44 consultation with the executive director of the New York state energy
45 research and development authority, shall promulgate regulations govern-
46 ing (i) criteria of eligibility for designation of a clean energy enter-
47 prise, (ii) the application process, and (iii) the certification by the
48 commissioner of economic development as to the eligibility of business
49 enterprises for benefits referred to in section nine hundred sixty-six
50 of this article. A business so certified shall be deemed to be eligible
51 for such benefits as if such business were located in an investment zone
52 as defined in paragraph (i) of subdivision (d) of section nine hundred
53 fifty-seven of this article. No such certification shall be made after
54 {December} MARCH thirty-first, two thousand {eleven} NINE.
55 (c) Such enterprise shall be exempt from the requirements of paragraph
56 (iii) of subdivision (a) of section nine hundred fifty-eight, sections
S. 60--A 55 A. 160--A
1 {nine hundred sixty-one,} nine hundred sixty-two and nine hundred
2 sixty-three of this article.
3 S 5. Subdivisions (a-1) and (a-2) and the opening paragraph of para-
4 graph (ii) of subdivision (e) of section 960 of the general municipal
5 law, subdivision (a-1) as amended by section 2 of part HH of chapter 59
6 of the laws of 2006, subdivision (a-2) as added and the opening para-
7 graph of paragraph (ii) of subdivision (e) as amended by section 5 of
8 part A of chapter 63 of the laws of 2005, are amended to read as
9 follows:
10 (a-1) The empire zones designation board may consider designating
11 empire zone acreage for the following categories of regionally signif-
12 icant projects as set forth in section nine hundred fifty-seven of this
13 article SUBMITTED FOR APPROVAL NO LATER THAN MARCH THIRTY-FIRST, TWO
14 THOUSAND NINE: agri-business or high tech or biotech business making a
15 capital investment of ten million dollars and creating twenty or more
16 jobs; or a financial or insurance services or distribution center creat-
17 ing three hundred or more jobs; or a clean energy research and develop-
18 ment enterprise. Such consideration shall be upon application SUBMITTED
19 by the {local zone administrative board and/or the} commissioner NO
20 LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND NINE. Such application shall
21 be made after a public hearing in accordance with section nine hundred
22 sixty-nine of this article and in accordance with findings which shall
23 consider factors including but not limited to: the creation and
24 retention of a regionally significant number of skilled or otherwise
25 quality jobs; substantial capital investment; or the export of a
26 substantial amount of goods or services beyond the immediate region; and
27 further findings as to why such project cannot be accommodated within
28 the distinct and separate contiguous areas pursuant to section nine
29 hundred fifty-seven of this article. Such findings shall be published
30 once a week for four successive weeks, in two newspapers of the county
31 of which the project is to be located or if no newspaper is published
32 therein, in the newspaper nearest thereto. Proof of such publication
33 shall be submitted to the board. The board shall not act on such project
34 or projects until thirty days of the final publication of such findings.
35 (a-2) The empire zones designation board may consider designating
36 empire zone acreage for other regionally significant projects in accord-
37 ance with section nine hundred fifty-seven of this article, upon appli-
38 cation SUBMITTED by the {local zone administrative board and/or the}
39 commissioner NO LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND NINE. Such
40 application shall be made after a public hearing in accordance with
41 section nine hundred sixty-nine of this article and in accordance with
42 findings which shall consider factors including, but not limited to: the
43 creation and retention of a regionally significant number of skilled or
44 otherwise quality jobs; substantial capital investment; or the export of
45 a substantial amount of goods or services beyond the immediate region;
46 and further findings as to why such project cannot be accommodated with-
47 in the distinct and separate contiguous areas pursuant to section nine
48 hundred fifty-seven of this article. Such findings shall be published
49 once a week for four successive weeks, in two newspapers of the county
50 of which the project is to be located or if no newspaper is published
51 therein, in the newspaper nearest thereto. Proof of such publication
52 shall be submitted to the board. The board shall not act on such project
53 or projects until thirty days of the final publication of such findings.
54 Provided, however, that the commissioner shall promulgate rules and
55 regulations for the implementation of this subdivision after approval by
56 the empire zones designation board. Provided further, approval of such
S. 60--A 56 A. 160--A
1 projects and related regulations requires an affirmative vote by at
2 least five voting members of such board.
3 An entity independent of the department shall conduct and submit to
4 the governor and the legislature by no later than {December} AUGUST
5 thirty-first, two thousand {nine} TEN, a comprehensive evaluation of the
6 performance of the zones program and of individual zones on meeting
7 criteria established pursuant to this section. The criteria by which the
8 empire zones program and individual zones are to be evaluated shall
9 include, but not be limited to, the following:
10 S 6. Section 961 of the general municipal law is REPEALED.
11 S 7. Subdivision (y) of section 962 of the general municipal law, as
12 added by section 5 of part A of chapter 63 of the laws of 2005, is
13 amended to read as follows:
14 (y) a description of how the local economic development entities, {as
15 described in paragraph (xii) of subdivision (b) of section nine hundred
16 sixty-one of this article} INCLUDING BUT NOT LIMITED TO THE LOCAL DEVEL-
17 OPMENT CORPORATION, LOCAL DEVELOPMENT COUNCILS, AUTHORITIES, AGENCIES
18 AND ALL OTHER SUCH ENTITLES CONCERNED WITH THE ECONOMIC DEVELOPMENT OF
19 THE MUNICIPALITY, will integrate its services to allow for the best
20 possible economic development support for the zone;
21 S 8. Subdivision (cc) of section 962 of the general municipal law is
22 REPEALED.
23 S 9. Subdivision (a) of section 963 of the general municipal law is
24 REPEALED and subdivisions (b), (c), (d), (e), (f) and (g) are relettered
25 (a), (b), (c), (d), (e) and (f).
26 S 10. Subdivision (f) of section 963 of the general municipal law, as
27 added by section 5 of part A of chapter 63 of the laws of 2005, and as
28 relettered by section nine of this act, is amended to read as follows:
29 (f) All {certified} businesses CERTIFIED ON OR BEFORE MARCH
30 THIRTY-FIRST, TWO THOUSAND NINE are required to provide a certified
31 annual report to the local zone administration board which report shall
32 include but not be limited to the following:
33 (i) Business certification information to include: organization name,
34 organization address in the zone, contact information, federal employ-
35 ment ID number, New York state unemployment insurance number, state of
36 formation or incorporation, verification that the business is authorized
37 to conduct business in the state of New York;
38 (ii) Employment numbers calculated in the same manner in which the
39 employment number is required to be calculated by section fourteen of
40 the tax law including: total existing full-time equivalent jobs {in the
41 zone} AT THE LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER as of
42 the date of certification {within that zone}, total existing jobs {in
43 the zone} AT THE LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER for
44 the year for which the report is being provided, total remuneration paid
45 to employees {in the zone} AT THE LOCATION OR LOCATIONS APPROVED BY THE
46 COMMISSIONER each quarter of the reported year, total number of employ-
47 ees in all {zones} LOCATIONS, total annual remuneration in all {zones}
48 LOCATIONS, total annual remuneration paid in New York state for the
49 reported year, total employment number in New York state for the
50 reported year as shown on each business` NYS-45 wage reporting form
51 filed with the department of labor;
52 (iii) Capital investment to include: total investment made in the
53 {zone} LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER for the
54 reported year{, with such investment being made with respect to tangible
55 personal property or other tangible property which is depreciable pursu-
S. 60--A 57 A. 160--A
1 ant to section one hundred seventy-nine (d) of the internal revenue
2 code};
3 (iv) Tax {credits claimed} BENEFITS USED AND REFUNDED: provide an
4 estimation of the amount of the {following credits claimed} TAX BENEFITS
5 USED AND REFUNDED for the reported year by the certified business, or by
6 the taxpayers within the certified business including its shareholders,
7 members, partners or the owner of a sole proprietorship{:} INCLUDING THE
8 wage tax credits, investment tax credits, employment incentive tax cred-
9 its, real property tax credit, {and} tax reduction credit; and
10 (v) {Other benefits: estimated value to the certified business of the}
11 THE sales tax {exemption} CREDITS AND REFUNDS for the reported year.
12 S 11. Subdivision (a) of section 964 of the general municipal law, as
13 amended by chapter 708 of the laws of 1993 and as further amended pursu-
14 ant to section 15 of part GG of chapter 63 of the laws of 2000, is
15 amended to read as follows:
16 (a) No more than three empire zone capital corporations may be estab-
17 lished in each zone for the purpose of raising funds through private and
18 public grants, donations or investments, to be used in making invest-
19 ments in, and loans to, business firms certified pursuant to subdivision
20 (a) of section nine hundred {sixty-three} FIFTY-NINE of this article for
21 the purpose of encouraging the establishment or expansion of businesses
22 and the provision of additional job opportunities within such area. A
23 zone capital corporation may serve one or more zones within an economic
24 development region or zones within two or more regions. Prior to the
25 establishment of a zone capital corporation, the zone board and the
26 commissioner of the department of economic development shall approve the
27 formation of the proposed zone capital corporation, its board of direc-
28 tors and management, and its procedures for making, servicing and moni-
29 toring investments. In no event, however, shall an empire zone capital
30 corporation acquire an ownership interest in any certified business firm
31 which amounts to more than twenty-five percent of the ownership interest
32 of such certified business firm. No loan to or investment in any busi-
33 ness firm shall be made by an empire zone capital corporation located in
34 a zone within a town with a population of more than twenty-five thou-
35 sand, until such corporation has accumulated at least two hundred thou-
36 sand dollars in capital stock. No loan or investment in any business
37 firm shall be made by an empire zone capital corporation located in a
38 zone within a town with a population of less than twenty-five thousand
39 until such corporation has accumulated at least one hundred thousand
40 dollars in capital stock. A zone capital corporation shall submit to the
41 zone board an annual report on its activities.
42 S 12. Subdivision (b) and the opening paragraph of subdivision (c) of
43 section 969 of the general municipal law, as amended by section 5 of
44 part A of chapter 63 of the laws of 2005, are amended to read as
45 follows:
46 (b) After consultation with the director of the budget {and the
47 commissioner of labor}, the commissioner may terminate the designation
48 of an area as an empire zone upon a finding that (1) the applicant has
49 failed substantially to implement the empire zone development plan with-
50 in the time stated therein; (2) there has been no substantial business
51 development or job creation within the area designated as an empire zone
52 within five years after such designation; (3) there has been inadequate
53 management and evaluation of the zone at the local level; or (4) the
54 applicant has repeatedly failed to comply with program reporting
55 requirements, provided, however, that no termination shall occur unless
56 and until written notice has been given to the applicant and a public
S. 60--A 58 A. 160--A
1 hearing has been held thirty days prior to the effective date of such
2 termination.
3 The governing body of a city, county, town or village may, by resol-
4 ution, submit to the commissioner a request to revise the boundaries of
5 an existing empire zone. The commissioner may{, after consultation with
6 the commissioner of labor,} approve such revision subject to the follow-
7 ing provisions:
8 S 13. The general municipal law is amended by adding a new section 970
9 to read as follows:
10 S 970. CERTIFICATION OF MANUFACTURING (INCLUDING HIGH-TECH, BIO-TECH,
11 CLEAN-TECH AND AGRI-BUSINESS), AND FINANCIAL SERVICE ENTERPRISES, AND
12 EXTRAORDINARY PROJECTS.
13 (A) NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS ARTI-
14 CLE, COMMENCING APRIL FIRST, TWO THOUSAND NINE, ONLY (I) MANUFACTURING
15 (INCLUDING HIGH-TECH, BIO-TECH, CLEAN-TECH, AND AGRI-BUSINESS) AND
16 FINANCIAL SERVICE ENTERPRISES AND EXTRAORDINARY PROJECTS, AS DEFINED IN
17 THE REGULATIONS PROMULGATED PURSUANT TO SUBDIVISIONS (B) AND (C) OF THIS
18 SECTION, AND (II) THE OWNER OF A QUALIFIED INVESTMENT PROJECT OR A
19 SIGNIFICANT CAPITAL INVESTMENT PROJECT, IN ACCORDANCE WITH THE REQUIRE-
20 MENTS AND CONDITIONS SET FORTH IN SUBDIVISION (V) OF SECTION NINE
21 HUNDRED FIFTY-NINE OF THIS ARTICLE, MAY APPLY FOR CERTIFICATION PURSUANT
22 TO THIS ARTICLE.
23 (B) THE COMMISSIONER SHALL SERVE AS THE SOLE CERTIFICATION OFFICER FOR
24 BUSINESS ENTERPRISES APPLYING FOR CERTIFICATION AS MANUFACTURING
25 (INCLUDING HIGH-TECH, BIO-TECH, CLEAN-TECH AND AGRI-BUSINESS) AND FINAN-
26 CIAL SERVICE ENTERPRISES. THE COMMISSIONER SHALL PROMULGATE REGULATIONS
27 (I) DEFINING MANUFACTURING (INCLUDING HIGH-TECH, BIO-TECH, CLEAN-TECH
28 AND AGRI-BUSINESS) AND FINANCIAL SERVICE ENTERPRISES; (II) GOVERNING THE
29 CRITERIA FOR THE CERTIFICATION OF MANUFACTURING (INCLUDING HIGH-TECH,
30 BIO-TECH, CLEAN-TECH AND AGRI-BUSINESS) AND FINANCIAL SERVICE ENTER-
31 PRISES (WHICH CRITERIA SHALL INCLUDE, BUT NOT BE LIMITED TO, MEETING THE
32 REQUIREMENTS OF THE COST BENEFIT ANALYSIS REFERRED TO IN SUBDIVISION (P)
33 OF SECTION NINE HUNDRED FIFTY-SEVEN OF THIS ARTICLE); AND (III) ESTAB-
34 LISHING THE APPLICATION PROCESS FOR CERTIFICATION. NOTWITHSTANDING ANY
35 OTHER PROVISIONS TO THE CONTRARY IN THE STATE ADMINISTRATIVE PROCEDURE
36 ACT, SUCH REGULATIONS MAY BE ADOPTED ON AN EMERGENCY BASIS. A BUSINESS
37 SO CERTIFIED SHALL BE DEEMED TO BE ELIGIBLE FOR BENEFITS REFERRED TO IN
38 SECTION NINE HUNDRED SIXTY-SIX OF THIS ARTICLE AS IF SUCH BUSINESS WERE
39 LOCATED IN AN INVESTMENT ZONE AS DEFINED IN PARAGRAPH (I) OF SUBDIVISION
40 (D) OF SECTION NINE HUNDRED FIFTY-SEVEN OF THIS ARTICLE.
41 (C) THE COMMISSIONER SHALL SERVE AS THE SOLE CERTIFICATION OFFICER FOR
42 BUSINESS ENTERPRISES APPLYING FOR CERTIFICATION OF EXTRAORDINARY
43 PROJECTS. THE COMMISSIONER SHALL PROMULGATE REGULATIONS (I) DEFINING
44 EXTRAORDINARY PROJECTS; (II) ESTABLISHING THE APPLICATION PROCESS FOR
45 CERTIFICATION; AND (III) GOVERNING THE CRITERIA FOR CERTIFICATION OF AN
46 EXTRAORDINARY PROJECT, WHICH CRITERIA SHALL INCLUDE, BUT NOT BE LIMITED
47 TO, (1) WHETHER THE EXTRAORDINARY PROJECT, IF CERTIFIED, IS REASONABLY
48 LIKELY TO CREATE SUBSTANTIAL NEW EMPLOYMENT OR PREVENT A SUBSTANTIAL
49 LOSS OF EMPLOYMENT; (2) WHETHER CERTIFICATION WILL HAVE THE UNDESIRED
50 EFFECT OF CAUSING INDIVIDUALS TO TRANSFER FROM EXISTING EMPLOYMENT WITH
51 ANOTHER BUSINESS ENTERPRISE TO SIMILAR EMPLOYMENT WITH THE BUSINESS
52 ENTERPRISE SO CERTIFIED, AND TRANSFERRING EXISTING EMPLOYMENT FROM ONE
53 OF MORE OTHER MUNICIPALITIES, TOWNS OR VILLAGES IN THE STATE; (3) WHETH-
54 ER SUCH EXTRAORDINARY PROJECT IS LIKELY TO BRING SUBSTANTIAL CAPITAL
55 INVESTMENT; (4) WHETHER THE EXTRAORDINARY PROJECT IS LIKELY TO LEAD TO
56 THE EXPORT OF A SUBSTANTIAL AMOUNT OF GOODS OR SERVICES BEYOND THE IMME-
S. 60--A 59 A. 160--A
1 DIATE REGION; (5) WHETHER THE BUSINESS ENTERPRISE, DURING THE THREE
2 YEARS PRECEDING THE SUBMISSION OF AN APPLICATION FOR CERTIFICATION, HAS
3 ENGAGED IN A SUBSTANTIAL VIOLATION OR A PATTERN OF VIOLATIONS OF LAWS
4 REGULATING ENVIRONMENTAL PROTECTION, UNEMPLOYMENT INSURANCE, WORKERS`
5 COMPENSATION, PUBLIC WORK, CHILD LABOR, EMPLOYMENT OF MINORITIES AND
6 WOMEN, SAFETY AND HEALTH, OR OTHER LAWS FOR THE PROTECTION OF WORKERS AS
7 DETERMINED BY FINAL JUDGMENT OF A JUDICIAL OR ADMINISTRATIVE PROCEEDING;
8 (6) IF THE COMMISSIONER ESTABLISHES THAT THE BUSINESS ENTERPRISE HAS
9 BEEN FOUND IN A CRIMINAL PROCEEDING TO HAVE VIOLATED, IN THE PREVIOUS
10 THREE YEARS, ANY OF THE LAWS REFERRED TO IN PARAGRAPH FIVE OF THIS
11 SUBDIVISION OR REGULATIONS PROMULGATED PURSUANT TO SUCH LAWS, THE CONDI-
12 TIONS OF ANY PERMIT ISSUED THEREUNDER, OR SIMILAR STATUTE, REGULATION,
13 ORDER OR PERMIT CONDITION OF ANY OTHER GOVERNMENT AGENCY, FOREIGN OR
14 DOMESTIC, SUCH BUSINESS SHALL NOT BE CERTIFIED. NOTWITHSTANDING ANY
15 OTHER PROVISIONS TO THE CONTRARY IN THE STATE ADMINISTRATIVE PROCEDURE
16 ACT, SUCH REGULATIONS MAY BE ADOPTED ON AN EMERGENCY BASIS. A BUSINESS
17 SO CERTIFIED SHALL BE DEEMED TO BE ELIGIBLE FOR SUCH BENEFITS AS IF SUCH
18 BUSINESS WERE LOCATED IN AN INVESTMENT ZONE AS DEFINED IN PARAGRAPH (I)
19 OF SUBDIVISION (D) OF SECTION NINE-HUNDRED FIFTY-SEVEN OF THIS ARTICLE.
20 (D) ALL BUSINESS ENTERPRISES CERTIFIED ON OR AFTER APRIL FIRST, TWO
21 THOUSAND NINE PURSUANT TO SUBDIVISIONS (B) OR (C) OF THIS SECTION OR
22 PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THIS
23 ARTICLE SHALL BE REQUIRED TO MEET THE REQUIREMENTS OF THE COST-BENEFIT
24 ANALYSIS ESTABLISHED IN SUBDIVISION (Q) OF SECTION NINE HUNDRED
25 FIFTY-SEVEN OF THIS ARTICLE AND THE REGULATIONS PROMULGATED UNDER THIS
26 ARTICLE AFTER THEY HAVE BEEN CERTIFIED FOR AT LEAST THREE YEARS. FAILURE
27 TO MEET THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS SHALL RESULT IN
28 THE BUSINESS ENTERPRISE BEING DECERTIFIED PURSUANT TO PARAGRAPH (II) OF
29 SUBDIVISION (A) OF SECTION NINE HUNDRED FIFTY-NINE OF THIS ARTICLE,
30 UNLESS THE COMMISSIONER MAKES A DETERMINATION IN HIS OR HER DISCRETION
31 TO RETAIN THE CERTIFICATION OF A BUSINESS ENTERPRISE, NOTWITHSTANDING
32 THE FAILURE TO MEET THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS, IN
33 ACCORDANCE WITH SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF
34 THIS ARTICLE.
35 (E) ALL BUSINESSES CERTIFIED PURSUANT TO THIS SECTION ARE REQUIRED TO
36 PROVIDE A CERTIFIED ANNUAL REPORT TO THE COMMISSIONER WHICH REPORT SHALL
37 INCLUDE BUT NOT BE LIMITED TO THE FOLLOWING:
38 (I) BUSINESS CERTIFICATION INFORMATION TO INCLUDE: ORGANIZATION NAME,
39 ORGANIZATION ADDRESS, CONTACT INFORMATION, FEDERAL EMPLOYMENT ID NUMBER,
40 NEW YORK STATE UNEMPLOYMENT INSURANCE NUMBER, STATE OF FORMATION OR
41 INCORPORATION, VERIFICATION THAT THE BUSINESS IS AUTHORIZED TO CONDUCT
42 BUSINESS IN THE STATE OF NEW YORK;
43 (II) EMPLOYMENT NUMBERS CALCULATED IN THE SAME MANNER IN WHICH THE
44 EMPLOYMENT NUMBER IS REQUIRED TO BE CALCULATED BY SECTION FOURTEEN OF
45 THE TAX LAW INCLUDING: TOTAL EXISTING FULL-TIME EQUIVALENT JOBS AT THE
46 LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER AS OF THE DATE OF
47 CERTIFICATION, TOTAL EXISTING JOBS AT THE LOCATION OR LOCATIONS APPROVED
48 BY THE COMMISSIONER FOR THE YEAR FOR WHICH THE REPORT IS BEING PROVIDED,
49 TOTAL REMUNERATION PAID TO EMPLOYEES AT THE LOCATION OR LOCATIONS
50 APPROVED BY THE COMMISSIONER EACH QUARTER OF THE REPORTED YEAR, TOTAL
51 NUMBER OF EMPLOYEES IN ALL LOCATIONS, TOTAL ANNUAL REMUNERATION IN ALL
52 LOCATIONS, TOTAL ANNUAL REMUNERATION PAID IN NEW YORK STATE FOR THE
53 REPORTED YEAR, TOTAL EMPLOYMENT NUMBER IN NEW YORK STATE FOR THE
54 REPORTED YEAR AS SHOWN ON EACH BUSINESS` NYS-45 WAGE REPORTING FORM
55 FILED WITH THE DEPARTMENT OF LABOR;
S. 60--A 60 A. 160--A
1 (III) TOTAL CAPITAL INVESTMENT MADE IN THE LOCATION OR LOCATIONS
2 APPROVED BY THE COMMISSIONER FOR THE REPORTED YEAR;
3 (IV) TOTAL EMPIRE ZONE TAX BENEFITS: PROVIDE AN ESTIMATION OF THE
4 TOTAL AMOUNT OF EMPIRE ZONE TAX BENEFITS USED AND THE TOTAL AMOUNT OF
5 EMPIRE ZONE TAX BENEFITS REFUNDED FOR THE REPORTED YEAR BY THE CERTIFIED
6 BUSINESS, OR BY THE TAXPAYERS WITHIN THE CERTIFIED BUSINESS INCLUDING
7 ITS SHAREHOLDERS, MEMBERS, PARTNERS OR THE OWNER OF A SOLE PROPRIETOR-
8 SHIP, INCLUDING BUT NOT LIMITED TO WAGE TAX CREDITS, INVESTMENT TAX
9 CREDITS, EMPLOYMENT INCENTIVE TAX CREDITS, REAL PROPERTY TAX CREDIT, TAX
10 REDUCTION CREDIT; AND SALES TAX BENEFITS.
11 S 14. Subdivision 19 of section 210 of the tax law is amended by
12 adding a new paragraph (e-1) to read as follows:
13 (E-1) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
14 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
15 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
16 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
17 CREDIT.
18 S 15. Subsection (k) of section 606 of the tax law is amended by
19 adding a new paragraph 5-a to read as follows:
20 (5-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
21 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
22 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
23 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
24 CREDIT.
25 S 16. Subsection (e) of section 1456 of the tax law is amended by
26 adding a new paragraph 5-a to read as follows:
27 (5-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
28 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
29 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
30 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
31 CREDIT.
32 S 17. Subdivision (g) of section 1511 of the tax law is amended by
33 adding a new paragraph 5-a to read as follows:
34 (5-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
35 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
36 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
37 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
38 CREDIT.
39 S 18. Subdivision 12-B of section 210 of the tax law is amended by
40 adding a new paragraph (d-1) to read as follows:
41 (D-1) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
42 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
43 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
44 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
45 CREDIT.
46 S 19. Subsection (j) of section 606 of the tax law is amended by
47 adding a new paragraph 4-a to read as follows:
48 (4-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
49 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
50 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
51 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
52 CREDIT.
53 S 20. Subdivision 12-C of section 210 of the tax law is amended by
54 adding a new paragraph (c-1) to read as follows:
55 (C-1) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
56 ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
S. 60--A 61 A. 160--A
1 TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
2 MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
3 CREDIT.
4 S 21. Subsection (j-1) of section 606 of the tax law is amended by
5 adding a new paragraph 3-a to read as follows:
6 (3-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
7 ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT,
8 IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY
9 PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE
10 GENERAL MUNICIPAL LAW.
11 S 22. Subdivision 20 of section 210 of the tax law is amended by
12 adding a new paragraph (b-1) to read as follows:
13 (B-1) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
14 ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT,
15 IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY
16 PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE
17 GENERAL MUNICIPAL LAW.
18 S 23. Subsection (1) of section 606 of the tax law is amended by
19 adding a new paragraph 1-a to read as follows:
20 (1-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
21 ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT,
22 IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY
23 PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE
24 GENERAL MUNICIPAL LAW.
25 S 24. Subsection (d) of section 1456 of the tax law is amended by
26 adding a new paragraph 2-a to read as follows:
27 (2-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
28 ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT,
29 IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY
30 PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE
31 GENERAL MUNICIPAL LAW.
32 S 25. Subdivision (h) of section 1511 of the tax law is amended by
33 adding a new paragraph 2-a to read as follows:
34 (2-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
35 ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT,
36 IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY
37 PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE
38 GENERAL MUNICIPAL LAW.
39 S 26. Section 1088 of the tax law is amended by adding a new
40 subsection (h) to read as follows:
41 (H) NOTWITHSTANDING ANY OTHER PROVISION IN THIS SECTION, FOR TAXABLE
42 YEARS BEGINNING ON OR AFTER JANUARY FIRST, TWO THOUSAND EIGHT AND BEFORE
43 JANUARY FIRST, TWO THOUSAND NINE, INTEREST WILL BE ALLOWED ON AN OVER-
44 PAYMENT ON ANY RETURN OR REPORT ON WHICH ONE OR MORE EMPIRE ZONE TAX
45 CREDITS ARE CLAIMED, ONLY FROM THE ONE HUNDRED EIGHTIETH DAY AFTER THE
46 TAXPAYER FILES WITH THE DEPARTMENT AN EMPIRE ZONE RETENTION CERTIFICATE
47 ISSUED PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF
48 THE GENERAL MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE
49 BASIS FOR THE TAX CREDIT OR CREDITS CLAIMED ON THE RETURN OR REPORT.
50 S 27. Section 688 of the tax law is amended by adding a new subsection
51 (h) to read as follows:
52 (H) NOTWITHSTANDING ANY OTHER PROVISIONS IN THIS SECTION, FOR TAXABLE
53 YEARS BEGINNING ON OR AFTER JANUARY FIRST, TWO THOUSAND EIGHT AND BEFORE
54 JANUARY FIRST, TWO THOUSAND NINE, INTEREST WILL BE ALLOWED ON AN OVER-
55 PAYMENT ON ANY RETURN OR REPORT ON WHICH ONE OR MORE EMPIRE ZONE TAX
56 CREDITS ARE CLAIMED, ONLY FROM THE ONE HUNDRED EIGHTIETH DAY AFTER THE
S. 60--A 62 A. 160--A
1 TAXPAYER FILES WITH THE DEPARTMENT AN EMPIRE ZONE RETENTION CERTIFICATE
2 ISSUED PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF
3 THE GENERAL MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE
4 BASIS FOR THE TAX CREDIT OR CREDITS CLAIMED ON THE RETURN OR REPORT.
5 S 28. Subsection (c) of section 1089 of the tax law is amended by
6 adding a new paragraph 4 to read as follows:
7 (4) NOTWITHSTANDING PARAGRAPH THREE OF THIS SUBSECTION, NO PETITION
8 MAY BE FILED BY A TAXPAYER CLAIMING A REFUND OF ONE OR MORE EMPIRE ZONE
9 TAX CREDITS FOR A TAXABLE YEAR BEGINNING ON OR AFTER JANUARY FIRST, TWO
10 THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND NINE, UNTIL SIX
11 MONTHS HAVE EXPIRED AFTER THE DATE ON WHICH AN EMPIRE ZONE RETENTION
12 CERTIFICATE WAS ISSUED PURSUANT TO SUBDIVISION (W) OF SECTION NINE
13 HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW TO THE EMPIRE ZONE
14 ENTERPRISE WHICH IS THE BASIS FOR THE TAX CREDIT OR CREDITS CLAIMED ON
15 THE RETURN OR REPORT.
16 S 29. Subsection (c) of section 689 of the tax law is amended by
17 adding a new paragraph 4 to read as follows:
18 (4) NOTWITHSTANDING PARAGRAPH THREE OF THIS SUBSECTION, NO PETITION
19 MAY BE FILED BY A TAXPAYER CLAIMING A REFUND OF ONE OR MORE EMPIRE ZONE
20 TAX CREDITS FOR A TAXABLE YEAR BEGINNING ON OR AFTER JANUARY FIRST, TWO
21 THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND NINE, UNTIL SIX
22 MONTHS HAVE EXPIRED AFTER THE DATE ON WHICH AN EMPIRE ZONE RETENTION
23 CERTIFICATE WAS ISSUED PURSUANT TO SUBDIVISION (W) OF SECTION NINE
24 HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW TO THE EMPIRE ZONE
25 ENTERPRISE WHICH IS THE BASIS FOR THE TAX CREDIT OR CREDITS CLAIMED ON
26 THE RETURN OR REPORT.
27 S 30. Section 1085 of the tax law is amended by adding a new
28 subsection (k-2) to read as follows:
29 (K-2) NO PENALTY WILL BE IMPOSED PURSUANT TO SUBSECTION (C) OR (K) OF
30 THIS SECTION FOR A TAXABLE YEAR BEGINNING ON OR AFTER JANUARY FIRST, TWO
31 THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND NINE RESULTING
32 FROM THE DENIAL OF AN EMPIRE ZONE TAX CREDIT CLAIMED BY THE TAXPAYER
33 BECAUSE AN EMPIRE ZONE RETENTION CERTIFICATE WAS NOT ISSUED PURSUANT TO
34 SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNIC-
35 IPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS FOR THE TAX
36 CREDIT OR CREDITS CLAIMED ON THE RETURN OR REPORT.
37 S 31. Section 685 of the tax law is amended by adding a new subsection
38 (p-2) to read as follows:
39 (P-2) NO PENALTY WILL BE IMPOSED PURSUANT TO SUBSECTION (C) OR (P) OF
40 THIS SECTION FOR A TAXABLE YEAR BEGINNING ON OR AFTER JANUARY FIRST, TWO
41 THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND NINE RESULTING
42 FROM THE DENIAL OF AN EMPIRE ZONE TAX CREDIT CLAIMED BY THE TAXPAYER
43 BECAUSE AN EMPIRE ZONE RETENTION CERTIFICATE WAS NOT ISSUED PURSUANT TO
44 SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNIC-
45 IPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS FOR THE TAX
46 CREDIT OR CREDITS CLAIMED ON THE RETURN.
47 S 32. Subdivision (z) of section 1115 of the tax law is REPEALED.
48 S 33. Section 1119 of the tax law is amended by adding a new subdivi-
49 sion (d) to read as follows:
50 (D)(1) SUBJECT TO THE CONDITIONS AND LIMITATIONS PROVIDED FOR IN THIS
51 SECTION, A REFUND OR CREDIT WILL BE ALLOWED FOR TAXES IMPOSED ON THE
52 RETAIL SALE OF TANGIBLE PERSONAL PROPERTY DESCRIBED IN SUBDIVISION (A)
53 OF SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE, AND ON EVERY SALE OF
54 SERVICES DESCRIBED IN SUBDIVISIONS (B) AND (C) OF SUCH SECTION, AND ON
55 THE RETAIL SALE OF PRE-WRITTEN COMPUTER SOFTWARE, WHETHER SUBJECT TO THE
56 TAX UNDER SUBDIVISION (A) OR (G) OF SUCH SECTION, AND CONSIDERATION
S. 60--A 63 A. 160--A
1 GIVEN OR CONTRACTED TO BE GIVEN FOR, OR FOR THE USE OF, SUCH TANGIBLE
2 PERSONAL PROPERTY OR SERVICES, OR PRE-WRITTEN COMPUTER SOFTWARE WHERE
3 SUCH TANGIBLE PERSONAL PROPERTY OR SERVICES OR PRE-WRITTEN COMPUTER
4 SOFTWARE ARE SOLD TO A QUALIFIED EMPIRE ZONE ENTERPRISE, PROVIDED THAT
5 (A) SUCH TANGIBLE PERSONAL PROPERTY OR TANGIBLE PERSONAL PROPERTY UPON
6 WHICH SUCH A SERVICE HAS BEEN PERFORMED OR SUCH SERVICE (OTHER THAN A
7 SERVICE DESCRIBED IN SUBDIVISION (B) OF SECTION ELEVEN HUNDRED FIVE OF
8 THIS ARTICLE) OR PRE-WRITTEN COMPUTER SOFTWARE IS DIRECTLY AND PREDOMI-
9 NANTLY, OR SUCH A SERVICE DESCRIBED IN CLAUSE (A) OR (D) OF PARAGRAPH
10 ONE OF SUCH SUBDIVISION (B) OF SECTION ELEVEN HUNDRED FIVE OF THIS ARTI-
11 CLE IS DIRECTLY AND EXCLUSIVELY, USED OR CONSUMED BY SUCH ENTERPRISE IN
12 AN AREA DESIGNATED AS AN EMPIRE ZONE PURSUANT TO ARTICLE EIGHTEEN-B OF
13 THE GENERAL MUNICIPAL LAW WITH RESPECT TO WHICH SUCH ENTERPRISE IS
14 CERTIFIED PURSUANT TO SUCH ARTICLE EIGHTEEN-B, OR (B) SUCH A SERVICE
15 DESCRIBED IN CLAUSE (B) OR (C) OF PARAGRAPH ONE OF SUBDIVISION (B) OF
16 SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE IS DELIVERED AND BILLED TO
17 SUCH ENTERPRISE AT AN ADDRESS IN SUCH EMPIRE ZONE, OR (C) THE ENTER-
18 PRISE`S PLACE OF PRIMARY USE OF THE SERVICE DESCRIBED IN PARAGRAPH TWO
19 OF SUCH SUBDIVISION (B) OF SECTION 1105 IS AT AN ADDRESS IN SUCH EMPIRE
20 ZONE; PROVIDED, FURTHER, THAT, IN ORDER FOR A MOTOR VEHICLE, AS DEFINED
21 IN SUBDIVISION (C) OF SECTION ELEVEN HUNDRED SEVENTEEN OF THIS ARTICLE,
22 OR TANGIBLE PERSONAL PROPERTY RELATED TO SUCH A MOTOR VEHICLE TO BE
23 FOUND TO BE USED PREDOMINANTLY IN SUCH A ZONE, AT LEAST FIFTY PERCENT OF
24 SUCH MOTOR VEHICLE`S USE SHALL BE EXCLUSIVELY WITHIN SUCH ZONE OR AT
25 LEAST FIFTY PERCENT OF SUCH MOTOR VEHICLE`S USE SHALL BE IN ACTIVITIES
26 ORIGINATING OR TERMINATING IN SUCH ZONE, OR BOTH; AND EITHER OR BOTH
27 SUCH USAGES SHALL BE COMPUTED EITHER ON THE BASIS OF MILEAGE OR HOURS OF
28 USE, AT THE DISCRETION OF SUCH ENTERPRISE. FOR PURPOSES OF THIS SUBDIVI-
29 SION, TANGIBLE PERSONAL PROPERTY RELATED TO SUCH A MOTOR VEHICLE SHALL
30 INCLUDE A BATTERY, DIESEL MOTOR FUEL, AN ENGINE, ENGINE COMPONENTS,
31 MOTOR FUEL, A MUFFLER, TIRES AND SIMILAR TANGIBLE PERSONAL PROPERTY USED
32 IN OR ON SUCH A MOTOR VEHICLE.
33 (2) SUBJECT TO THE CONDITIONS AND LIMITATIONS PROVIDED FOR IN THIS
34 SECTION, A REFUND OR CREDIT WILL BE ALLOWED FOR TAXES IMPOSED ON THE
35 RETAIL SALE OF, AND CONSIDERATION GIVEN OR CONTRACTED TO BE GIVEN FOR,
36 OR FOR THE USE OF, TANGIBLE PERSONAL PROPERTY SOLD TO A CONTRACTOR,
37 SUBCONTRACTOR OR REPAIRMAN FOR USE IN (A) ERECTING A STRUCTURE OR BUILD-
38 ING OF A QUALIFIED EMPIRE ZONE ENTERPRISE, (B) ADDING TO, ALTERING OR
39 IMPROVING REAL PROPERTY, PROPERTY OR LAND OF SUCH AN ENTERPRISE OR (C)
40 MAINTAINING, SERVICING OR REPAIRING REAL PROPERTY, PROPERTY OR LAND OF
41 SUCH AN ENTERPRISE, AS THE TERMS REAL PROPERTY, PROPERTY OR LAND ARE
42 DEFINED IN THE REAL PROPERTY TAX LAW; PROVIDED, HOWEVER, NO CREDIT OR
43 REFUND WILL BE ALLOWED UNDER THIS PARAGRAPH UNLESS SUCH TANGIBLE
44 PERSONAL PROPERTY IS TO BECOME AN INTEGRAL COMPONENT PART OF SUCH STRUC-
45 TURE, BUILDING, REAL PROPERTY, PROPERTY OR LAND LOCATED IN AN AREA
46 DESIGNATED AS AN EMPIRE ZONE PURSUANT TO ARTICLE EIGHTEEN-B OF THE
47 GENERAL MUNICIPAL LAW IN, AND WITH RESPECT TO WHICH SUCH ENTERPRISE IS
48 CERTIFIED PURSUANT TO SUCH ARTICLE EIGHTEEN-B.
49 (3) EXCEPT AS OTHERWISE PROVIDED BY LAW, THE REFUND OR CREDIT PROVIDED
50 FOR IN THIS SUBDIVISION WILL NOT APPLY TO TAXES IMPOSED BY PARAGRAPHS
51 TEN AND THIRTEEN OF SUBDIVISION (C) OF SECTIONS 1105-D, 1105-F, AND
52 ELEVEN HUNDRED SEVEN OF THIS ARTICLE OR TO TAXES IMPOSED PURSUANT TO THE
53 AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER.
54 (4) IN THOSE INSTANCES WHEN THE PROVISIONS OF SUBDIVISION (W) OF
55 SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW ARE APPLI-
56 CABLE, NO REFUND OR CREDIT WILL BE ALLOWED UNDER THIS SUBDIVISION UNLESS
S. 60--A 64 A. 160--A
1 THE QUALIFIED EMPIRE ZONE ENTERPRISE HAS BEEN ISSUED AN EMPIRE ZONE
2 RETENTION CERTIFICATE.
3 (5) A TAXPAYER MAY NOT APPLY FOR A CREDIT OR REFUND UNDER THIS SUBDI-
4 VISION MORE FREQUENTLY THAN ONCE A SALES TAX QUARTER, PURSUANT TO SUBDI-
5 VISION (B) OF SECTION ELEVEN HUNDRED THIRTY-SIX OF THE TAX LAW.
6 (6) ANY REFERENCE IN THIS CHAPTER TO SUBDIVISION (Z) OF SECTION ELEVEN
7 HUNDRED FIFTEEN OF THIS ARTICLE WILL BE DEEMED TO BE A REFERENCE TO THIS
8 SUBDIVISION.
9 S 34. Paragraph 2 of subdivision (a) of section 14 of the tax law, as
10 amended by section 1 of part AA of chapter 62 of the laws of 2006, is
11 amended to read as follows:
12 (2) for purposes of articles twenty-eight and twenty-nine of this
13 chapter, during the "sales and use tax benefit period." Such period
14 shall consist of one hundred twenty consecutive months beginning on the
15 later of (A) March first, two thousand one, or (B) WITH REGARD TO BUSI-
16 NESS ENTERPRISES CERTIFIED PURSUANT TO ARTICLE EIGHTEEN-B OF THE GENERAL
17 MUNICIPAL LAW PRIOR TO APRIL FIRST, TWO THOUSAND NINE, the first day of
18 the month next following the date of issuance of a qualified empire zone
19 enterprise certification by the commissioner under subdivision (h) of
20 this section, OR (C) WITH REGARD TO BUSINESS ENTERPRISES CERTIFIED
21 PURSUANT TO SUCH ARTICLE EIGHTEEN-B ON OR AFTER APRIL FIRST, TWO THOU-
22 SAND NINE, THE FIRST DAY OF THE MONTH NEXT FOLLOWING THE DATE OF CERTIF-
23 ICATION UNDER ARTICLE EIGHTEEN-B AS AN EMPIRE ZONE BUSINESS. Provided
24 however, such period shall not include any month falling within a taxa-
25 ble year immediately preceded by a taxable year with respect to which
26 the business enterprise did not meet the employment test.
27 S 35. Subdivision (h) of section 14 of the tax law is REPEALED.
28 S 36. Paragraph 1 of subdivision (a) of section 1210 of the tax law,
29 as amended by section 4 of part SS1 of chapter 57 of the laws of 2008,
30 is amended to read as follows:
31 (i) Either, all of the taxes described in article twenty-eight of this
32 chapter, at the same uniform rate, as to which taxes all provisions of
33 the local laws, ordinances or resolutions imposing such taxes shall be
34 identical, except as to rate and except as otherwise provided, with the
35 corresponding provisions in such article twenty-eight, including the
36 definition and exemption provisions of such article, so far as the
37 provisions of such article twenty-eight can be made applicable to the
38 taxes imposed by such city or county and with such limitations and
39 special provisions as are set forth in this article. The taxes author-
40 ized under this subdivision may not be imposed by a city or county
41 unless the local law, ordinance or resolution imposes such taxes so as
42 to include all portions and all types of receipts, charges or rents,
43 subject to state tax under sections eleven hundred five and eleven
44 hundred ten of this chapter, except as otherwise provided. (I) Any local
45 law, ordinance or resolution enacted by any city of less than one
46 million or by any county or school district, imposing the taxes author-
47 ized by this subdivision, shall, notwithstanding any provision of law to
48 the contrary, exclude from the operation of such local taxes all sales
49 of tangible personal property for use or consumption directly and
50 predominantly in the production of tangible personal property, gas,
51 electricity, refrigeration or steam, for sale, by manufacturing, proc-
52 essing, generating, assembly, refining, mining or extracting; and all
53 sales of tangible personal property for use or consumption predominantly
54 either in the production of tangible personal property, for sale, by
55 farming or in a commercial horse boarding operation, or in both; and,
56 unless such city, county or school district elects otherwise, shall omit
S. 60--A 65 A. 160--A
1 the provision for credit or refund contained in clause six of subdivi-
2 sion (a) OR SUBDIVISION (D) of section eleven hundred nineteen of this
3 chapter. (II) Any local law, ordinance or resolution enacted by any
4 city, county or school district, imposing the taxes authorized by this
5 subdivision, shall omit the residential solar energy systems equipment
6 exemption provided for in subdivision (ee){,} AND the clothing and foot-
7 wear exemption provided for in paragraph thirty of subdivision (a) {and
8 the qualified empire zone enterprise exemptions provided for in subdivi-
9 sion (z)} of section eleven hundred fifteen of this chapter, unless such
10 city, county or school district elects otherwise as to either such resi-
11 dential solar energy systems equipment exemption or such clothing and
12 footwear exemption {or such qualified empire zone enterprise exemptions;
13 provided that if such a city having a population of one million or more
14 in which the taxes imposed by section eleven hundred seven of this chap-
15 ter are in effect enacts the resolution described in subdivision (k) of
16 this section or repeals such resolution or enacts the resolution
17 described in subdivision (l) of this section or repeals such resolution
18 or enacts the resolution described in subdivision (n) of this section or
19 repeals such resolution, such resolution or repeal shall also be deemed
20 to amend any local law, ordinance or resolution enacted by such a city
21 imposing such taxes pursuant to the authority of this subdivision,
22 whether or not such taxes are suspended at the time such city enacts its
23 resolution pursuant to subdivision (k), (l) or (n) of this section or at
24 the time of any such repeal; provided, further, that any such local law,
25 ordinance or resolution and section eleven hundred seven of this chap-
26 ter, as deemed to be amended in the event a city of one million or more
27 enacts a resolution pursuant to the authority of subdivision (k), (l) or
28 (n) of this section, shall be further amended, as provided in section
29 twelve hundred eighteen of this subpart, so that the residential solar
30 energy systems equipment exemption or the clothing and footwear
31 exemption or the qualified empire zone enterprise exemptions in any such
32 local law, ordinance or resolution or in such section eleven hundred
33 seven are the same, as the case may be, as the residential solar energy
34 systems equipment exemption provided for in subdivision (ee), the cloth-
35 ing and footwear exemption in paragraph thirty of subdivision (a) or the
36 qualified empire zone enterprise exemptions in subdivision (z) of
37 section eleven hundred fifteen of this chapter}.
38 S 37. Paragraph 4 of subdivision (a) of section 1210 of the tax law,
39 as amended by section 5 of part SS1 of chapter 57 of the laws of 2008,
40 is amended to read as follows:
41 (4) Notwithstanding any other provision of law to the contrary, any
42 local law enacted by any city of one million or more that imposes the
43 taxes authorized by this subdivision (i) may omit the exception provided
44 in subparagraph (ii) of paragraph three of subdivision (c) of section
45 eleven hundred five of this chapter for receipts from laundering, dry-
46 cleaning, tailoring, weaving, pressing, shoe repairing and shoe shining;
47 (ii) may impose the tax described in paragraph six of subdivision (c) of
48 section eleven hundred five of this chapter at a rate in addition to the
49 rate prescribed by this section not to exceed two percent in multiples
50 of one-half of one percent; (iii) shall provide that the tax described
51 in paragraph six of subdivision (c) of section eleven hundred five of
52 this chapter does not apply to facilities owned and operated by the city
53 or an agency or instrumentality of the city or a public corporation the
54 majority of whose members are appointed by the chief executive officer
55 of the city or the legislative body of the city or both of them; (iv)
56 shall not include any tax on receipts from, or the use of, the services
S. 60--A 66 A. 160--A
1 described in paragraph seven of subdivision (c) of section eleven
2 hundred five of this chapter; (v) shall provide that, for purposes of
3 the tax described in subdivision (e) of section eleven hundred five of
4 this chapter, "permanent resident" means any occupant of any room or
5 rooms in a hotel for at least one hundred eighty consecutive days with
6 regard to the period of such occupancy; (vi) may omit the exception
7 provided in paragraph one of subdivision (f) of section eleven hundred
8 five of this chapter for charges to a patron for admission to, or use
9 of, facilities for sporting activities in which the patron is to be a
10 participant, such as bowling alleys and swimming pools; (vii) shall not
11 provide the clothing and footwear exemption in paragraph thirty of
12 subdivision (a) of section eleven hundred fifteen of this chapter but
13 must exempt clothing and footwear and any item used or consumed to make
14 or repair exempt clothing and which becomes a physical component part of
15 that exempt clothing; (viii) shall omit the exemption provided in para-
16 graph forty-one of subdivision (a) of section eleven hundred fifteen of
17 this chapter; (ix) shall omit the exemption provided in subdivision (c)
18 of section eleven hundred fifteen of this chapter insofar as it applies
19 to fuel, gas, electricity, refrigeration and steam, and gas, electric,
20 refrigeration and steam service of whatever nature for use or consump-
21 tion directly and exclusively in the production of gas, electricity,
22 refrigeration or steam; and (x) shall omit, unless such city elects
23 otherwise, the provision for refund or credit contained in clause six of
24 subdivision (a) OR IN SUBDIVISION (D) of section eleven hundred nineteen
25 of this chapter.
26 S 38. Paragraph 1 of subdivision (b) of section 1210 of the tax law,
27 as separately amended by section 36 of part Y and section 11 of part GG
28 of chapter 63 of the laws of 2000, is amended to read as follows:
29 (1) Or, one or more of the taxes described in subdivisions (b), (d),
30 (e) and (f) of section eleven hundred five of this chapter, at the same
31 uniform rate, including the transitional provisions in section eleven
32 hundred six of this chapter covering such taxes, but not the taxes
33 described in subdivisions (a) and (c) of section eleven hundred five of
34 this chapter. Provided, further, that where the tax described in subdi-
35 vision (b) of section eleven hundred five of this chapter is imposed,
36 the compensating use taxes described in clauses (E), (G) and (H) of
37 subdivision (a) of section eleven hundred ten of this chapter shall also
38 be imposed. Provided, further, that where the taxes described in subdi-
39 vision (b) of section eleven hundred five are imposed, such taxes shall
40 omit the {exemptions provided for in subdivision (z) of section eleven
41 hundred fifteen} PROVISION FOR REFUND OR CREDIT CONTAINED IN SUBDIVISION
42 (D) OF SECTION ELEVEN HUNDRED NINETEEN OF THIS CHAPTER with respect to
43 such taxes described in such subdivision (b) of section eleven hundred
44 five unless such city or county elects to provide such {exemptions}
45 PROVISION or, if so elected, to repeal such {exemptions} PROVISION.
46 S 39. Subdivision (d) of section 1210 of the tax law, as amended by
47 section 12 of part GG of chapter 63 of the laws of 2000, is amended to
48 read as follows:
49 (d) A local law, ordinance or resolution imposing any tax pursuant to
50 this section, increasing or decreasing the rate of such tax, repealing
51 or suspending such tax, exempting from such tax the energy sources and
52 services described in paragraph three of subdivision (a) or of subdivi-
53 sion (b) of this section or changing the rate of tax imposed on such
54 energy sources and services or providing for the credit or refund
55 described in clause six of subdivision (a) of section eleven hundred
56 nineteen of this chapter must go into effect only on one of the follow-
S. 60--A 67 A. 160--A
1 ing dates: March first, June first, September first or December first;
2 provided, that a local law, ordinance or resolution providing for the
3 exemption described in paragraph thirty of subdivision (a) {or providing
4 for the exemptions described in subdivision (z)} of section eleven
5 hundred fifteen of this chapter or repealing any such exemption {so
6 provided and a resolution enacted pursuant to the authority of subdivi-
7 sion (k) of this section providing such exemption or subdivision (l) of
8 this section providing such exemptions or repealing such exemption or
9 exemptions so provided} OR A LOCAL LAW, ORDINANCE OR RESOLUTION PROVID-
10 ING FOR A REFUND OR CREDIT DESCRIBED IN SUBDIVISION (D) OF SECTION ELEV-
11 EN HUNDRED NINETEEN OF THIS CHAPTER OR REPEALING SUCH PROVISION SO
12 PROVIDED must go into effect only on March first. No such local law,
13 ordinance or resolution shall be effective unless a certified copy of
14 such law, ordinance or resolution is mailed by registered or certified
15 mail to the commissioner at the commissioner`s office in Albany at least
16 ninety days prior to the date it is to become effective. However, the
17 commissioner may waive and reduce such ninety-day minimum notice
18 requirement to a mailing of such certified copy by registered or certi-
19 fied mail within a period of not less than thirty days prior to such
20 effective date if the commissioner deems such action to be consistent
21 with the commissioner`s duties under section twelve hundred fifty of
22 this article and the commissioner acts by resolution. Where the
23 restriction provided for in section twelve hundred twenty-three of this
24 article as to the effective date of a tax and the notice requirement
25 provided for therein are applicable and have not been waived, the
26 restriction and notice requirement in section twelve hundred twenty-
27 three of this article shall also apply.
28 S 40. Subdivision (1) of section 1210 of the tax law is REPEALED.
29 S 41. Subdivision (d) of section 1211 of the tax law, as amended by
30 chapter 577 of the laws of 1997, is amended to read as follows:
31 (d) A local law or resolution imposing any tax pursuant to this
32 section, increasing or decreasing the rate of such tax, repealing or
33 suspending such tax or providing for the credit or refund described in
34 clause six of subdivision (a) of section eleven hundred nineteen of this
35 chapter must go into effect only on one of the following dates: March
36 first, June first, September first or December first, subject to further
37 requirement as to effective date provided for in subdivision (b) of this
38 section; PROVIDED, THAT A LOCAL LAW OR RESOLUTION PROVIDING FOR A REFUND
39 OR CREDIT DESCRIBED IN SUBDIVISION (D) OF SECTION ELEVEN HUNDRED NINE-
40 TEEN OF THIS CHAPTER OR REPEALING SUCH PROVISION SO PROVIDED MUST GO
41 INTO EFFECT ONLY ON MARCH FIRST, SUBJECT TO FURTHER REQUIREMENT AS TO
42 EFFECTIVE DATE PROVIDED FOR IN SUBDIVISION (B) OF THIS SECTION. No such
43 local law or resolution shall be effective unless a certified copy of
44 such local law or resolution is mailed by registered or certified mail
45 to the commissioner at the commissioner`s office in Albany at least
46 ninety days prior to the date it is to become effective. However, the
47 commissioner may waive and reduce such ninety-day minimum notice
48 requirement to a mailing of such certified copy by registered or certi-
49 fied mail within a period of not less than thirty days prior to such
50 effective date if the commissioner deems such action to be consistent
51 with the commissioner`s duties under section twelve hundred fifty of
52 this article and the commissioner acts by resolution. Where the
53 restriction provided for in section twelve hundred twenty-three of this
54 article as to the effective date of a tax and the notice requirement
55 provided for therein are applicable and have not been waived, the
S. 60--A 68 A. 160--A
1 restriction and notice requirement in section twelve hundred twenty-
2 three of this article shall also apply.
3 S 42. Subdivisions (a) and (e) of section 1212 of the tax law, as
4 amended by section 14 of part GG and subdivision (a) as separately
5 amended by section 37 of part Y of chapter 63 of the laws of 2000, are
6 amended to read as follows:
7 (a) Any school district which is coterminous with, partly within or
8 wholly within a city having a population of less than one hundred twen-
9 ty-five thousand, is hereby authorized and empowered, by majority vote
10 of the whole number of its school authorities, to impose for school
11 district purposes, within the territorial limits of such school district
12 and without discrimination between residents and nonresidents thereof,
13 the taxes described in subdivision (b) of section eleven hundred five
14 (but excluding the tax on prepaid telephone calling services) and the
15 taxes described in clauses (E) and (H) of subdivision (a) of section
16 eleven hundred ten, including the transitional provisions in subdivision
17 (b) of section eleven hundred six of this chapter, so far as such
18 provisions can be made applicable to the taxes imposed by such school
19 district and with such limitations and special provisions as are set
20 forth in this article, such taxes to be imposed at the rate of one-half,
21 one, one and one-half, two, two and one-half or three percent which rate
22 shall be uniform for all portions and all types of receipts and uses
23 subject to such taxes. In respect to such taxes, all provisions of the
24 resolution imposing them, except as to rate and except as otherwise
25 provided herein, shall be identical with the corresponding provisions in
26 such article twenty-eight of this chapter, including the applicable
27 definition and exemption provisions of such article, so far as the
28 provisions of such article twenty-eight of this chapter can be made
29 applicable to the taxes imposed by such school district and with such
30 limitations and special provisions as are set forth in this article. The
31 taxes described in subdivision (b) of section eleven hundred five (but
32 excluding the tax on prepaid telephone calling service) and clauses (E)
33 and (H) of subdivision (a) of section eleven hundred ten, including the
34 transitional provision in subdivision (b) of such section eleven hundred
35 six of this chapter, may not be imposed by such school district unless
36 the resolution imposes such taxes so as to include all portions and all
37 types of receipts and uses subject to tax under such subdivision (but
38 excluding the tax on prepaid telephone calling service) and clauses.
39 Provided, however, that, where a school district imposes such taxes,
40 such taxes shall omit the {exemptions provided for in subdivision (z) of
41 section eleven hundred fifteen} PROVISION FOR REFUND OR CREDIT CONTAINED
42 IN SUBDIVISION (D) OF SECTION ELEVEN HUNDRED NINETEEN OF THIS CHAPTER
43 with respect to such taxes described in such subdivision (b) of section
44 eleven hundred five unless such school district elects to provide such
45 {exemptions} PROVISION or, if so elected, to repeal such {exemptions}
46 PROVISION.
47 (e) A resolution imposing a tax pursuant to this section, increasing
48 or decreasing the rate of such tax, or repealing or suspending such tax
49 must go into effect only on one of the following dates: March first,
50 June first, September first or December first; provided, that a resol-
51 ution providing for the {exemptions described in subdivision (z) of
52 section eleven hundred fifteen} REFUND OR CREDIT DESCRIBED IN SUBDIVI-
53 SION (D) OF SECTION ELEVEN HUNDRED NINETEEN of this chapter or repealing
54 such {exemptions so provided} PROVISION must go into effect only on
55 March first. No such resolution shall be effective unless a certified
56 copy of such resolution is mailed by registered or certified mail to the
S. 60--A 69 A. 160--A
1 commissioner at the commissioner`s office in Albany at least ninety days
2 prior to the date it is to become effective. However, the commissioner
3 may waive and reduce such ninety-day minimum notice requirement to a
4 mailing of such certified copy by registered or certified mail within a
5 period of not less than thirty days prior to such effective date if the
6 commissioner deems such action to be consistent with the commissioner`s
7 duties under section twelve hundred fifty of this article and the
8 commissioner acts by resolution.
9 S 43. Notwithstanding any provision of state or local law, ordinance
10 or resolution to the contrary:
11 (a) Every local enactment that elected the qualified empire zone
12 enterprise exemptions described in subdivision (z) of section 1115 of
13 the tax law elected by a county or city pursuant to the authority of
14 article 29 of the tax law that is in effect on the day before this act
15 becomes a law or was elected prior to such date to take effect at a
16 later date is hereby amended to elect the refund or credit described in
17 subdivision (d) of section 1119 of the tax law.
18 (b) A county or city that elected the qualified empire zone enterprise
19 exemptions described in subdivision (z) of section 1115 of the tax law
20 pursuant to the authority of article 29 of the tax law may repeal such
21 exemptions in accord with the provisions of subdivisions (d) and (e) of
22 section 1210 of the tax law.
23 S 44. Subdivision (m) of section 14 of the tax law is REPEALED.
24 S 45. The tax law is amended by adding a new section 17 to read as
25 follows:
26 S 17. EMPIRE ZONES TAX BENEFITS REPORT. (A) THE DEPARTMENT OF TAXATION
27 AND FINANCE MUST PUBLISH AN EMPIRE ZONES TAX BENEFITS REPORT ANNUALLY BY
28 JANUARY THIRTY-FIRST. THE FIRST REPORT MUST BE PUBLISHED BY JANUARY
29 THIRTY-FIRST, TWO THOUSAND THIRTEEN.
30 (B) (1) THE EMPIRE ZONES TAX BENEFITS REPORT MUST CONTAIN THE FOLLOW-
31 ING INFORMATION ABOUT THE EMPIRE ZONE TAX CREDITS CLAIMED UNDER ARTICLES
32 NINE, NINE-A, TWENTY-TWO, THIRTY-TWO AND THIRTY-THREE OF THIS CHAPTER
33 DURING THE PREVIOUS CALENDAR YEAR:
34 (A) THE NAME OF EACH TAXPAYER CLAIMING A CREDIT; AND
35 (B) THE AMOUNT OF EACH CREDIT EARNED BY EACH TAXPAYER.
36 (2) IF THE TAXPAYER CLAIMS A EMPIRE ZONE TAX CREDIT BECAUSE THE
37 TAXPAYER IS A MEMBER OF A LIMITED LIABILITY COMPANY, A PARTNER IN A
38 PARTNERSHIP OR A SHAREHOLDER IN A SUBCHAPTER S CORPORATION, THE NAME OF
39 EACH LIMITED LIABILITY COMPANY, PARTNERSHIP OR SUBCHAPTER S CORPORATION
40 EARNING ANY OF THOSE CREDITS AND THE AMOUNT OF CREDIT EARNED BY EACH
41 ENTITY MUST BE INCLUDED IN THE REPORT INSTEAD OF INFORMATION ABOUT THE
42 TAXPAYER CLAIMING THE CREDIT.
43 (C) THE EMPIRE ZONES TAX BENEFITS REPORT MUST ALSO CONTAIN THE FOLLOW-
44 ING INFORMATION ABOUT THE SALES AND USE TAX REFUNDS AND CREDITS CLAIMED
45 UNDER SUBDIVISION (D) OF SECTION ELEVEN HUNDRED NINETEEN OF THIS CHAPTER
46 DURING THE PREVIOUS CALENDAR YEAR:
47 (A) THE NAME OF EACH TAXPAYER CLAIMING A CREDIT OR REFUND; AND
48 (B) THE TOTAL AMOUNT OF CREDITS OR REFUNDS ALLOWED TO EACH TAXPAYER.
49 (D) THE INFORMATION INCLUDED IN THE EMPIRE ZONES TAX BENEFITS REPORT
50 WILL BE BASED ON THE INFORMATION FILED WITH THE DEPARTMENT DURING THE
51 PREVIOUS CALENDAR YEAR, TO THE EXTENT THAT IT IS PRACTICABLE TO USE THAT
52 INFORMATION.
53 S 46. This act shall take effect immediately, provided, however, that:
54 (a) sections fourteen through twenty-five of this act shall apply to
55 taxable years beginning on and after April 1, 2009;
S. 60--A 70 A. 160--A
1 (b) sections thirty-two and thirty-three and sections thirty-six
2 through forty-three of this act shall take effect on the first day of
3 the sales tax quarter next commencing at least 60 days after this act
4 becomes a law; and provided further that any refund or credit allowed
5 pursuant to the amendments made by section thirty-three of this act may
6 not be paid for that quarter for at least two hundred seventy days after
7 this act becomes a law;
8 (c) section thirty-five of this act shall take effect April 1, 2009;
9 and
10 (d) the amendments to subdivision (u) of section 957 of the general
11 municipal law made by section one of this act shall not affect the
12 repeal of such subdivision and shall be deemed repealed therewith.
13 PART L
14 Section 1. Subdivision 4 of section 22 of the public housing law, as
15 amended by section 1 of part XX-1 of chapter 57 of the laws of 2008, is
16 amended to read as follows:
17 4. Statewide limitation. The aggregate dollar amount of credit which
18 the commissioner may allocate to eligible low-income buildings under
19 this article shall be {twenty} TWENTY-FOUR million dollars. The limita-
20 tion provided by this subdivision applies only to allocation of the
21 aggregate dollar amount of credit by the commissioner, and does not
22 apply to allowance to a taxpayer of the credit with respect to an eligi-
23 ble low-income building for each year of the credit period.
24 S 2. Paragraph (7) of subdivision (b) of section 18 of the tax law, as
25 added by chapter 63 of the laws of 2000, is amended to read as follows:
26 (7) {Bond in lieu of recapture. In the case of a disposition of a
27 building or an interest therein, the taxpayer shall be discharged from
28 liability for any recapture under this subdivision by reason of such
29 disposition if the taxpayer furnishes to the commissioner a bond or
30 other security acceptable to the commissioner in an amount satisfactory
31 to the commissioner and for the period required by the commissioner,
32 and} (A) THE CREDIT RECAPTURE REQUIRED UNDER THIS SUBDIVISION WILL NOT
33 APPLY SOLELY BY REASON OF THE DISPOSITION OF A BUILDING OR AN INTEREST
34 THEREIN IF it is reasonably expected that such building will continue to
35 be operated as an eligible low-income building for the remaining compli-
36 ance period with respect to such building.
37 (B) STATUTE OF LIMITATIONS. IF A BUILDING (OR AN INTEREST THEREIN) IS
38 DISPOSED OF DURING ANY TAXABLE YEAR AND THERE IS ANY REDUCTION IN THE
39 QUALIFIED BASIS OF SUCH BUILDING WHICH RESULTS IN AN INCREASE IN TAX
40 UNDER THIS SECTION FOR SUCH TAXABLE OR ANY SUBSEQUENT TAXABLE YEAR, THEN
41 (I) THE STATUTORY PERIOD FOR THE ASSESSMENT OF ANY DEFICIENCY WITH
42 RESPECT TO SUCH INCREASE IN TAX WILL NOT EXPIRE BEFORE THE EXPIRATION OF
43 THREE YEARS FROM THE DATE THE COMMISSIONER OF HOUSING AND COMMUNITY
44 RENEWAL IS NOTIFIED BY THE TAXPAYER (IN SUCH MANNER AS THE COMMISSIONER
45 OF HOUSING AND COMMUNITY RENEWAL MAY PRESCRIBE) OF SUCH REDUCTION IN
46 QUALIFIED BASIS, AND
47 (II) SUCH DEFICIENCY MAY BE ASSESSED BEFORE THE EXPIRATION OF SUCH
48 3-YEAR PERIOD NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW OR RULE OF
49 LAW WHICH WOULD OTHERWISE PREVENT SUCH ASSESSMENT.
50 S 3. This act shall take effect immediately.
51 PART M
S. 60--A 71 A. 160--A
1 Section 1. Subsection (f) of section 615 of the tax law, as added by
2 chapter 28 of the laws of 1987, is amended to read as follows:
3 (f) The New York itemized deduction otherwise allowable under this
4 section shall be reduced by the sum of the amounts determined under
5 paragraphs one {and}, two AND THREE of this subsection.
6 (1) An amount equal to the New York itemized deduction otherwise
7 allowable under subsection (a) of this section, multiplied by a percent-
8 age, such percentage to be determined by multiplying, for taxable years
9 beginning in nineteen hundred eighty-eight, ten percent, and for taxable
10 years beginning after nineteen hundred eighty-eight, twenty-five
11 percent, by a fraction,
12 (A) in the case of an unmarried individual or married individual
13 filing a separate return, the numerator of which is the lesser of fifty
14 thousand dollars or the excess of such individual`s New York adjusted
15 gross income over one hundred thousand dollars and the denominator of
16 which is fifty thousand dollars;
17 (B) in the case of a married individual filing a joint return or a
18 surviving spouse, the numerator of which is the lesser of fifty thousand
19 dollars or the excess of such individual`s New York adjusted gross
20 income over two hundred thousand dollars and the denominator of which is
21 fifty thousand dollars;
22 (C) in the case of a head of household, the numerator of which is the
23 lesser of fifty thousand dollars or the excess of such individual`s New
24 York adjusted gross income over one hundred fifty thousand dollars and
25 the denominator of which is fifty thousand dollars.
26 (2) An amount equal to the New York itemized deduction of an individ-
27 ual otherwise allowable under subsection (a) of this section, multiplied
28 by a percentage, such percentage to be determined by multiplying, for
29 taxable years beginning in nineteen hundred eighty-eight, ten percent,
30 and for taxable years beginning after nineteen hundred eighty-eight,
31 twenty-five percent, by a fraction, the numerator of which is the lesser
32 of fifty thousand dollars or the excess of such individual`s New York
33 adjusted gross income over four hundred seventy-five thousand dollars
34 and the denominator of which is fifty thousand dollars.
35 (3) WITH RESPECT TO AN INDIVIDUAL WHOSE NEW YORK ADJUSTED GROSS INCOME
36 IS OVER ONE MILLION DOLLARS, AN AMOUNT EQUAL TO THE NEW YORK ITEMIZED
37 DEDUCTION OF AN INDIVIDUAL OTHERWISE ALLOWABLE UNDER SUBSECTION (A) OF
38 THIS SECTION, EXCEPT THE PORTION OF THE DEDUCTION ATTRIBUTABLE TO ANY
39 CHARITABLE CONTRIBUTION ALLOWED UNDER SECTION ONE HUNDRED SEVENTY OF THE
40 INTERNAL REVENUE CODE, MULTIPLIED BY FIFTY PERCENT, FOR TAXABLE YEARS
41 BEGINNING AFTER TWO THOUSAND EIGHT.
42 S 2. Clause (ii) of subparagraph (B) of paragraph 3 of subsection (c)
43 of section 685 of the tax law, as amended by section 2 of part Y3 of
44 chapter 62 of the laws of 2003, is amended to read as follows:
45 (ii) one hundred percent of the tax shown on the return of the indi-
46 vidual for the preceding taxable year. Provided, however, the tax shown
47 on such return for taxable years beginning in two thousand two shall be
48 the tax calculated as if such years began in two thousand three.
49 PROVIDED FURTHER, HOWEVER, THAT THE TAX SHOWN ON SUCH RETURN FOR TAXABLE
50 YEARS BEGINNING IN TWO THOUSAND EIGHT SHALL BE CALCULATED AS IF PARA-
51 GRAPH THREE OF SUBSECTION (F) OF SECTION SIX HUNDRED FIFTEEN OF THIS
52 ARTICLE HAS BEEN IN EFFECT FOR TAXABLE YEARS BEGINNING IN TWO THOUSAND
53 EIGHT.
54 S 3. Subdivision (f) of section 11-1715 of the administrative code of
55 the city of New York, as added by chapter 333 of the laws of 1987, is
56 amended to read as follows:
S. 60--A 72 A. 160--A
1 (f) The city itemized deduction otherwise allowable under this section
2 shall be reduced by the sum of the amounts determined under paragraphs
3 one {and}, two AND THREE of this subdivision.
4 (1) An amount equal to the city itemized deduction otherwise allowable
5 under subdivision (a) of this section, multiplied by a percentage, such
6 percentage to be determined by multiplying, for taxable years beginning
7 in nineteen hundred eighty-eight, ten percent, and for taxable years
8 beginning after nineteen hundred eighty-eight, twenty-five percent, by a
9 fraction,
10 (A) in the case of an unmarried individual or married individual
11 filing a separate return, the numerator of which is the lesser of fifty
12 thousand dollars or the excess of such individual`s city adjusted gross
13 income over one hundred thousand dollars and the denominator of which is
14 fifty thousand dollars;
15 (B) in the case of a married individual filing a joint return or a
16 surviving spouse, the numerator of which is the lesser of fifty thousand
17 dollars or the excess of such individual`s city adjusted gross income
18 over two hundred thousand dollars and the denominator of which is fifty
19 thousand dollars;
20 (C) in the case of a head of household, the numerator of which is the
21 lesser of fifty thousand dollars or the excess of such individual`s city
22 adjusted gross income over one hundred fifty thousand dollars and the
23 denominator of which is fifty thousand dollars.
24 (2) An amount equal to the city itemized deduction of an individual
25 otherwise allowable under subdivision (a) of this section, multiplied by
26 a percentage, such percentage to be determined by multiplying, for taxa-
27 ble years beginning in nineteen hundred eighty-eight, ten percent, and
28 for taxable years beginning after nineteen hundred eighty-eight, twen-
29 ty-five percent, by a fraction, the numerator of which is the lesser of
30 fifty thousand dollars or the excess of such individual`s city adjusted
31 gross income over four hundred seventy-five thousand dollars and the
32 denominator of which is fifty thousand dollars.
33 (3) WITH RESPECT TO AN INDIVIDUAL WHOSE CITY ADJUSTED GROSS INCOME IS
34 OVER ONE MILLION DOLLARS, AN AMOUNT EQUAL TO THE CITY ITEMIZED DEDUCTION
35 OF AN INDIVIDUAL OTHERWISE ALLOWABLE UNDER SUBDIVISION (A) OF THIS
36 SECTION, EXCEPT THE PORTION OF THE DEDUCTION ATTRIBUTABLE TO ANY CHARI-
37 TABLE CONTRIBUTION ALLOWED UNDER SECTION ONE HUNDRED SEVENTY OF THE
38 INTERNAL REVENUE CODE, MULTIPLIED BY FIFTY PERCENT, FOR TAXABLE YEARS
39 BEGINNING AFTER TWO THOUSAND EIGHT.
40 S 4. Clause (ii) of subparagraph (B) of paragraph 3 of subdivision (c)
41 of section 11-1785 of the administrative code of the city of New York,
42 as amended by chapter 55 of the laws of 1992, is amended to read as
43 follows:
44 (ii) one hundred percent of the tax shown on the return of the indi-
45 vidual for the preceding taxable year. PROVIDED, HOWEVER, THAT THE TAX
46 SHOWN ON SUCH RETURN FOR TAXABLE YEARS BEGINNING IN TWO THOUSAND EIGHT
47 SHALL BE CALCULATED AS IF PARAGRAPH THREE OF SUBDIVISION (F) OF SECTION
48 11-1715 OF THIS CHAPTER WAS IN EFFECT FOR TAXABLE YEARS BEGINNING IN TWO
49 THOUSAND EIGHT.
50 S 5. Notwithstanding the provisions of subsection (c) of section 685
51 of the tax law or subdivision (c) of section 11-1785 of the administra-
52 tive code of the city of New York, no addition to tax as a result of an
53 underpayment of estimated tax that is attributable to the amendments
54 made by sections one, two and three of this act shall be imposed with
55 respect to any installment the due date for the payment of which is
56 prior to 45 days after the date this act shall have become a law.
S. 60--A 73 A. 160--A
1 S 6. Notwithstanding any provision of law to the contrary, the commis-
2 sioner of taxation and finance is authorized to prescribe by regulations
3 the method of determining the amount to be deducted and withheld from
4 wages on account of taxes imposed by or pursuant to the authority of
5 article 22 of the tax law in taxable years beginning in 2009 in
6 connection with the implementation of section one of this act. The
7 commissioner of taxation and finance may adjust the withholding tables
8 in regard to taxable years beginning in 2009 to account for the
9 provisions of this act. In prescribing any such regulations, the commis-
10 sioner of taxation and finance may adopt rules on an emergency basis
11 notwithstanding anything to the contrary in section 202 of the state
12 administrative procedure act. In carrying out his duties and responsi-
13 bilities under this section, the commissioner of taxation and finance
14 may accompany any such rule making procedure with a similar procedure
15 with respect to the taxes required to be deducted and withheld by local
16 laws imposing taxes pursuant to the authority of articles 30, 30-A and
17 30-B of the tax law that take effect and become applicable in taxable
18 years beginning in 2009, the provisions of any other law in relation to
19 such a procedure to the contrary notwithstanding.
20 S 7. This act shall take effect immediately.
21 PART N
22 Section 1. Subparagraph (B) of paragraph 1 of subsection (b) of
23 section 631 of the tax law, as amended by chapter 28 of the laws of
24 1987, is amended to read as follows:
25 (B) a business, trade, profession or occupation carried on in this
26 state, INCLUDING INVESTMENT MANAGEMENT SERVICES PERFORMED IN EXCHANGE
27 FOR CONSIDERATION TO A PARTNERSHIP OR OTHER ENTITY AS DEFINED IN
28 SUBSECTION (H) OF THIS SECTION; or
29 S 2. Section 631 of the tax law is amended by adding a new subsection
30 (h) to read as follows:
31 (H) SPECIAL RULES FOR PARTNERS PROVIDING INVESTMENT MANAGEMENT
32 SERVICES. (1) FOR PURPOSES OF THIS SECTION, THE TERM "INVESTMENT MANAGE-
33 MENT SERVICES TO A PARTNERSHIP OR OTHER ENTITY" MEANS PROVIDING A
34 SUBSTANTIAL QUANTITY OF ANY OF THE FOLLOWING SERVICES TO THE PARTNERSHIP
35 OR OTHER ENTITY:
36 (I) ADVISING THE PARTNERSHIP AS TO THE VALUE OF ANY SPECIFIED ASSET,
37 OR
38 (II) ADVISING THE PARTNERSHIP AS TO THE ADVISABILITY OF INVESTING IN,
39 PURCHASING, OR SELLING ANY SPECIFIED ASSET, OR
40 (III) MANAGING, ACQUIRING, OR DISPOSING OF ANY SPECIFIED ASSET, OR
41 (IV) ARRANGING FINANCING WITH RESPECT TO ACQUIRING SPECIFIED ASSETS,
42 OR
43 (V) ANY ACTIVITY IN SUPPORT OF ANY SERVICE DESCRIBED IN SUBPARAGRAPHS
44 (I) THROUGH (IV) OF THIS PARAGRAPH.
45 (2) FOR PURPOSES OF THIS SUBSECTION, THE TERM "SPECIFIED ASSET" MEANS
46 SECURITIES (AS DEFINED IN SECTION FOUR HUNDRED SEVENTY-FIVE (C)(2) OF
47 THE INTERNAL REVENUE CODE WITHOUT REGARD TO THE LAST SENTENCE THEREOF),
48 REAL ESTATE, COMMODITIES (AS DEFINED IN SECTION FOUR HUNDRED
49 SEVENTY-FIVE (E)(2) OF THE INTERNAL REVENUE CODE), OR OPTIONS OR DERIVA-
50 TIVE CONTRACTS WITH RESPECT TO SECURITIES (AS SO DEFINED), REAL ESTATE,
51 OR COMMODITIES (AS SO DEFINED).
52 (3) FOR PURPOSES OF THIS SUBSECTION, SUBSECTION (D) OF THIS SECTION
53 SHALL NOT APPLY.
S. 60--A 74 A. 160--A
1 S 3. Subsection (d) of section 631 of the tax law is amended to read
2 as follows:
3 (d) Purchase and sale for own account.-- A nonresident, other than a
4 dealer holding property primarily for sale to customers in the ordinary
5 course of his trade or business, shall not be deemed to carry on a busi-
6 ness, trade, profession or occupation in this state solely by reason of
7 the purchase and sale of property or the purchase, sale or writing of
8 stock option contracts, or both, for his own account EXCEPT WHEN
9 SUBSECTION (H) OF THIS SECTION APPLIES.
10 S 4. Subdivision (a) of section 632 of the tax law is amended by
11 adding new paragraph (3) to read as follows:
12 (3) IN DETERMINING THE NEW YORK SOURCE INCOME OF A NONRESIDENT SHARE-
13 HOLDER OF AN S CORPORATION WHERE THE ELECTION PROVIDED FOR IN SUBSECTION
14 (A) OF SECTION SIX HUNDRED SIXTY IS IN EFFECT AND THE S CORPORATION IS A
15 PARTNER OF A PARTNERSHIP TO WHICH SECTION 631(H) APPLIES, THERE SHALL BE
16 INCLUDED THE INCOME AND LOSSES FROM INTANGIBLE PERSONAL PROPERTY,
17 INCLUDING ANNUITIES, DIVIDENDS, INTEREST AND GAINS FROM THE DISPOSITION
18 OF INTANGIBLE PERSONAL PROPERTY ATTRIBUTABLE TO THE PARTNERSHIP OF WHICH
19 SECTION 631(H) APPLIES. THOSE ITEMS OF INCOME AND LOSS AND DEDUCTION
20 SHALL BE ALLOCABLE BY THE NONRESIDENT SHAREHOLDERS BY THE S CORPO-
21 RATION`S BUSINESS ALLOCATION PERCENTAGE, DETERMINED UNDER THE REGU-
22 LATIONS OF THE COMMISSIONER CONSISTENT WITH THE APPLICABLE METHODS AND
23 RULES FOR ALLOCATION UNDER ARTICLE 9-A.
24 S 5. This act shall take effect immediately and apply to taxable years
25 beginning on or after January 1, 2009.
26 PART O
27 Section 1. The tax law is amended by adding a new section 30 to read
28 as follows:
29 S 30. RESEARCH EXPENDITURES CREDIT. (A) GENERAL. (1) A TAXPAYER
30 SUBJECT TO TAX UNDER ARTICLE NINE-A, TWENTY-TWO, THIRTY-TWO OR
31 THIRTY-THREE OF THIS CHAPTER SHALL BE ALLOWED A CREDIT AGAINST SUCH TAX,
32 PURSUANT TO THE PROVISIONS REFERENCED IN SUBDIVISION (E) OF THIS
33 SECTION. THE CREDIT IS EQUAL TO TEN PERCENT OF THE EXCESS OF THE TAXPAY-
34 ER`S NEW YORK RESEARCH EXPENDITURES INCURRED DURING THE TAXABLE YEAR
35 OVER THE AVERAGE AMOUNT OF THE TAXPAYER`S NEW YORK RESEARCH EXPENDITURES
36 INCURRED DURING THE TWO IMMEDIATELY PRECEDING TAXABLE YEARS. IF THE
37 TAXPAYER DOES NOT HAVE TWO IMMEDIATELY PRECEDING TAXABLE YEARS, THEN THE
38 CREDIT IS EQUAL TO TEN PERCENT OF THE EXCESS OF THE TAXPAYER`S NEW YORK
39 RESEARCH EXPENDITURES INCURRED DURING THE TAXABLE YEAR OVER THE TAXPAY-
40 ER`S NEW YORK RESEARCH EXPENDITURES INCURRED DURING THE IMMEDIATELY
41 PRECEDING TAXABLE YEAR. THE TAXPAYER IS NOT ALLOWED TO CLAIM THIS CREDIT
42 DURING ITS FIRST TAXABLE YEAR IN NEW YORK. IF THE TAXPAYER IS A PARTNER
43 IN A PARTNERSHIP THAT IS INCURRING RESEARCH EXPENDITURES, THE AMOUNT OF
44 CREDIT THE TAXPAYER WILL BE ALLOWED TO CLAIM IS EQUAL TO THE TAXPAYER`S
45 PRO RATA SHARE OF THE CREDIT THAT THE PARTNERSHIP WOULD HAVE BEEN
46 ALLOWED TO CLAIM IF IT WERE A TAXPAYER. ANY TAXPAYER THAT HAS RESEARCH
47 EXPENDITURES THAT MAY BE USED IN CALCULATING BOTH THE CREDIT DESCRIBED
48 IN THIS SECTION AND THE CREDIT FOR "QUALIFIED EMERGING TECHNOLOGY COMPA-
49 NY FACILITIES, OPERATIONS AND TRAINING" ALLOWED UNDER EITHER SUBSECTION
50 (NN) OF SECTION SIX HUNDRED SIX OF THIS CHAPTER OR SUBDIVISION 12-G OF
51 SECTION TWO HUNDRED TEN OF THIS CHAPTER, MAY USE THOSE EXPENDITURES TO
52 CALCULATE EITHER THE CREDIT DESCRIBED IN THIS SECTION OR THE CREDIT
53 ALLOWED UNDER SUCH SUBSECTION (NN) OR SUCH SUBDIVISION (12-G), BUT NOT
54 BOTH.
S. 60--A 75 A. 160--A
1 (2) NEW YORK RESEARCH EXPENDITURES EQUAL THE SUM OF:
2 (A) THE QUALIFIED RESEARCH EXPENSES THAT WOULD QUALIFY FOR THE CREDIT
3 ALLOWED UNDER SECTION 41 OF THE INTERNAL REVENUE CODE FOR RESEARCH
4 ACTIVITIES CONDUCTED IN THIS STATE, AND
5 (B) THE GRANTS MADE FOR QUALIFIED RESEARCH BY THE TAXPAYER TO A QUALI-
6 FIED RESEARCH CONSORTIUM, AN EDUCATIONAL INSTITUTION, AND AN ORGANIZA-
7 TION WHICH IS A STATE OR FEDERAL LABORATORY FOR RESEARCH ACTIVITIES TO
8 BE CONDUCTED BY THAT ORGANIZATION IN THIS STATE.
9 (B) MEANING OF TERMS. THE TERMS "QUALIFIED RESEARCH EXPENSES", "QUALI-
10 FIED RESEARCH", "QUALIFIED RESEARCH CONSORTIUM", AND "EDUCATIONAL INSTI-
11 TUTION" SHALL HAVE THE SAME MEANINGS AS WHEN USED IN SECTION 41 OF THE
12 INTERNAL REVENUE CODE, AS SUCH SECTION OF SUCH CODE APPLIED ON DECEMBER
13 THIRTY-FIRST, TWO THOUSAND EIGHT.
14 (C) RESEARCH EXPENDITURES CREDIT CERTIFICATES. TO BE ELIGIBLE FOR THE
15 CREDIT ALLOWED BY THIS SECTION, A TAXPAYER SHALL OBTAIN A RESEARCH
16 EXPENDITURES CREDIT CERTIFICATE FROM THE URBAN DEVELOPMENT CORPORATION.
17 A TAXPAYER SHALL APPLY TO THE URBAN DEVELOPMENT CORPORATION BY JANUARY
18 THIRTY-FIRST OF EACH YEAR WITH RESPECT TO NEW YORK RESEARCH EXPENDITURES
19 INCURRED DURING THE IMMEDIATELY PRECEDING TAXABLE YEAR THAT ENDED ON OR
20 BEFORE DECEMBER THIRTY-FIRST OF THE PRECEDING YEAR. THE URBAN DEVELOP-
21 MENT CORPORATION SHALL ISSUE RESEARCH EXPENDITURES CREDIT CERTIFICATES
22 BY MARCH THIRTY-FIRST OF EACH YEAR, PURSUANT TO PROCEDURES SPECIFIED IN
23 RULES AND REGULATIONS PROMULGATED BY SUCH CORPORATION. EACH RESEARCH
24 EXPENDITURES CREDIT CERTIFICATE SHALL SPECIFY THE MAXIMUM AMOUNT OF
25 CREDIT THAT THE TAXPAYER IS ALLOWED TO CLAIM FOR THE TAXABLE YEAR TO
26 WHICH THE CREDIT CERTIFICATE RELATES. FOR THE STATE FISCAL YEAR COMMENC-
27 ING APRIL FIRST, TWO THOUSAND NINE, THE URBAN DEVELOPMENT CORPORATION
28 SHALL NOT ISSUE, IN THE AGGREGATE, MORE THAN TWENTY MILLION DOLLARS OF
29 RESEARCH EXPENDITURES CREDIT CERTIFICATES. FOR THE STATE FISCAL YEAR
30 COMMENCING APRIL FIRST, TWO THOUSAND TEN, THE AGGREGATE AMOUNT OF SUCH
31 CERTIFICATES SHALL NOT BE MORE THAN THIRTY-THREE MILLION DOLLARS. FOR
32 THE STATE FISCAL YEAR COMMENCING APRIL FIRST, TWO THOUSAND ELEVEN AND
33 FOR EACH FISCAL YEAR THEREAFTER, THE AGGREGATE OF SUCH CERTIFICATES
34 SHALL NOT BE MORE THAN FORTY-FIVE MILLION DOLLARS.
35 (D) RESEARCH EXPENDITURES CREDIT REPORT. (1) THE DEPARTMENT SHALL
36 PUBLISH A RESEARCH EXPENDITURES CREDIT REPORT ANNUALLY BY JANUARY THIR-
37 TY-FIRST. THE FIRST REPORT SHALL BE PUBLISHED BY JANUARY THIRTY-FIRST,
38 TWO THOUSAND THIRTEEN.
39 (2)(A) THE RESEARCH EXPENDITURES CREDIT REPORT SHALL CONTAIN THE
40 FOLLOWING INFORMATION ABOUT THE CREDITS CLAIMED UNDER THIS SECTION
41 DURING THE PREVIOUS CALENDAR YEAR:
42 (I) THE NAME OF EACH TAXPAYER CLAIMING A RESEARCH CREDIT; AND
43 (II) THE AMOUNT OF RESEARCH CREDIT EARNED BY EACH TAXPAYER;
44 (B) IF THE TAXPAYER CLAIMS A CREDIT PURSUANT TO THIS SECTION BECAUSE
45 THE TAXPAYER IS A MEMBER OF A LIMITED LIABILITY COMPANY TREATED AS A
46 PARTNERSHIP FOR FEDERAL TAX PURPOSES, A PARTNER IN A PARTNERSHIP OR A
47 SHAREHOLDER IN A SUBCHAPTER S CORPORATION, THE NAME OF EACH LIMITED
48 LIABILITY COMPANY, PARTNERSHIP OR SUBCHAPTER S CORPORATION ASSOCIATED
49 WITH ANY OF THOSE CREDITS AND THE AMOUNT OF CREDIT ASSOCIATED WITH EACH
50 ENTITY SHALL BE INCLUDED IN THE REPORT INSTEAD OF INFORMATION ABOUT THE
51 TAXPAYER CLAIMING THE CREDIT.
52 (3) THE INFORMATION INCLUDED IN THE RESEARCH EXPENDITURES CREDIT
53 REPORT SHALL BE BASED ON THE INFORMATION FILED WITH THE DEPARTMENT
54 DURING THE PREVIOUS CALENDAR YEAR, TO THE EXTENT THAT IT IS PRACTICABLE
55 TO USE THAT INFORMATION.
S. 60--A 76 A. 160--A
1 (E) CROSS-REFERENCES. FOR APPLICATION OF THE CREDIT PROVIDED FOR IN
2 THIS SECTION, SEE THE FOLLOWING PROVISIONS OF THIS CHAPTER:
3 (1) ARTICLE 9-A: SECTION 210: SUBDIVISION 41.
4 (2) ARTICLE 22: SECTION 606: SUBSECTION (QQ).
5 (3) ARTICLE 32: SECTION 1456: SUBSECTION (U).
6 (4) ARTICLE 33: SECTION 1511: SUBDIVISION (Y).
7 S 2. Section 210 of the tax law is amended by adding a new subdivision
8 41 to read as follows:
9 41. RESEARCH EXPENDITURES CREDIT. (A) ALLOWANCE OF CREDIT. A TAXPAYER
10 SHALL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN SECTION THIRTY
11 OF THIS CHAPTER, AGAINST THE TAX IMPOSED BY THIS ARTICLE.
12 (B) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION
13 FOR ANY TAXABLE YEAR SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
14 THAN THE HIGHER OF THE AMOUNTS PRESCRIBED IN PARAGRAPHS (C) AND (D) OF
15 SUBDIVISION ONE OF THIS SECTION. HOWEVER, IF THE AMOUNT OF CREDITS
16 ALLOWED UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR REDUCES THE TAX TO
17 SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE IN SUCH TAXABLE
18 YEAR SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR
19 REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND
20 EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS OF
21 SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER
22 NOTWITHSTANDING, NO INTEREST SHALL BE PAID THEREON.
23 S 3. Section 606 of the tax law is amended by adding a new subsection
24 (qq) to read as follows:
25 (QQ) RESEARCH EXPENDITURES CREDIT. (1) ALLOWANCE OF CREDIT. A TAXPAY-
26 ER SHALL BE ALLOWED A CREDIT, TO THE EXTENT ALLOWED UNDER SECTION THIRTY
27 OF THIS CHAPTER, AGAINST THE TAX IMPOSED BY THIS ARTICLE.
28 (2) APPLICATION OF CREDIT. IF THE AMOUNT OF THE CREDIT ALLOWED UNDER
29 THIS SUBSECTION FOR ANY TAXABLE YEAR EXCEEDS THE TAXPAYER`S TAX FOR SUCH
30 YEAR, THE EXCESS SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDIT-
31 ED OR REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION SIX HUNDRED
32 EIGHTY-SIX OF THIS ARTICLE, PROVIDED, HOWEVER, THAT NO INTEREST SHALL BE
33 PAID THEREON.
34 S 4. Subparagraph (B) of paragraph (1) of subsection (i) of section
35 606 of the tax law, as amended by section 2 of part ZZ-1 of chapter 57
36 of the laws of 2008, is amended to read as follows:
37 (B) shall be treated as the owner of a new business with respect to
38 such share if the corporation qualifies as a new business pursuant to
39 paragraph (j) of subdivision twelve of section two hundred ten of this
40 chapter.
41 The corporation`s credit base under
42 section two hundred ten or section
43 With respect to the following fourteen hundred fifty-six of this
44 credit under this section: chapter is:
45 Investment tax credit Investment credit base
46 under subsection (a) or qualified
47 rehabilitation
48 expenditures under
49 subdivision twelve of
50 section two hundred ten
51 Empire zone Cost or other basis
52 investment tax credit under subdivision
53 under subsection (j) twelve-B
S. 60--A 77 A. 160--A
1 of section two hundred
2 ten
3 Empire zone Eligible wages under
4 wage tax credit subdivision nineteen of
5 under subsection (k) section two hundred ten
6 or subsection (e) of
7 section fourteen hundred
8 fifty-six
9 Empire zone Qualified investments
10 capital tax credit and contributions under
11 under subsection (l) subdivision twenty of
12 section two hundred ten
13 or subsection (d) of
14 section fourteen hundred
15 fifty-six
16 Agricultural property tax Allowable school
17 credit under subsection (n) district property taxes under
18 subdivision twenty-two of
19 section two hundred ten
20 Credit for employment Qualified first-year wages or
21 of persons with dis- qualified second-year wages
22 abilities under under subdivision
23 subsection (o) twenty-three of section
24 two hundred ten
25 or subsection (f)
26 of section fourteen
27 hundred fifty-six
28 Employment incentive Applicable investment credit
29 credit under subsec- base under subdivision
30 tion (a-1) twelve-D of section two
31 hundred ten
32 Empire zone Applicable investment
33 employment credit under sub-
34 incentive credit under division twelve-C
35 subsection (j-1) of section two hundred ten
36 Alternative fuels credit Cost under subdivision
37 under subsection (p) twenty-four of section two
38 hundred ten
39 Qualified emerging Applicable credit base
40 technology company under subdivision twelve-E
41 employment credit of section two hundred ten
42 under subsection (q)
43 Qualified emerging Qualified investments under
44 technology company subdivision twelve-F of
45 capital tax credit section two hundred ten
46 under subsection (r)
S. 60--A 78 A. 160--A
1 Credit for purchase of an Cost of an automated
2 automated external defibrillator external defibrillator under
3 under subsection (s) subdivision twenty-five of
4 section two hundred ten
5 or subsection (j) of section
6 fourteen hundred fifty-six
7 Low-income housing Credit amount under
8 credit under subsection (x) subdivision thirty
9 of section two hundred ten or
10 subsection (l) of section
11 fourteen hundred fifty-six
12 Credit for transportation Amount of credit under sub-
13 improvement contributions division thirty-two of section
14 under subsection (z) two hundred ten or subsection
15 (n) of section fourteen
16 hundred fifty-six
17 QEZE credit for real property Amount of credit under
18 taxes under subsection (bb) subdivision twenty-seven of
19 section two hundred ten or
20 subsection (o) of section
21 fourteen hundred fifty-six
22 QEZE tax reduction credit Amount of benefit period
23 under subsection (cc) factor, employment increase factor
24 and zone allocation
25 factor (without regard
26 to pro ration) under
27 subdivision twenty-eight of
28 section two hundred ten or
29 subsection (p) of section
30 fourteen hundred fifty-six
31 and amount of tax factor
32 as determined under
33 subdivision (f) of section sixteen
34 Green building credit Amount of green building credit
35 under subsection (y) under subdivision thirty-one
36 of section two hundred ten
37 or subsection (m) of section
38 fourteen hundred fifty-six
39 Credit for long-term Qualified costs under
40 care insurance premiums subdivision twenty-five-a of
41 under subsection (aa) section two hundred ten
42 or subsection (k) of section
43 fourteen hundred fifty-six
44 Brownfield redevelopment Amount of credit
45 credit under subsection under subdivision
46 (dd) thirty-three of section
47 two hundred ten
48 or subsection (q) of
49 section fourteen hundred
S. 60--A 79 A. 160--A
1 fifty-six
2 Remediated brownfield Amount of credit under
3 credit for real property subdivision thirty-four
4 taxes for qualified of section two hundred
5 sites under subsection ten or subsection (r) of
6 (ee) section fourteen hundred
7 fifty-six
8 Environmental Amount of credit under
9 remediation subdivision thirty-five of
10 insurance credit under section two hundred
11 subsection (ff) ten or subsection
12 (s) of section
13 fourteen hundred
14 fifty-six
15 Empire state film production Amount of credit for qualified
16 credit under subsection (gg) production costs in production
17 of a qualified film under
18 subdivision thirty-six of
19 section two hundred ten
20 Qualified emerging Qualifying expenditures and
21 technology company facilities, development activities under
22 operations and training credit subdivision twelve-G of section
23 under subsection (nn) two hundred ten
24 Security training tax Amount of credit
25 credit under under subdivision thirty-seven
26 subsection (ii) of section two hundred ten or
27 under subsection (t) of
28 section fourteen hundred fifty-six
29 Credit for qualified fuel Amount of credit under
30 cell electric generating equipment subdivision thirty-seven
31 expenditures under subsection (g-2) of section two hundred ten
32 or subsection (t) of
33 section fourteen hundred
34 fifty-six
35 Empire state commercial production Amount of credit for qualified
36 credit under subsection (jj) production costs in production
37 of a qualified commercial under
38 subdivision thirty-eight of sec-
39 tion two hundred ten
40 Biofuel production Amount of credit
41 tax credit under under subdivision
42 subsection (jj) thirty-eight of
43 section two hundred ten
44 Clean heating fuel credit Amount of credit under
45 under subsection (mm) subdivision thirty-nine of
46 section two hundred ten
S. 60--A 80 A. 160--A
1 Credit for rehabilitation Amount of credit under
2 of historic properties subdivision forty of
3 under subsection (oo) subsection two hundred ten
4 Credit for companies who Amount of credit under
5 provide transportation subdivision forty of
6 to individuals section two hundred ten
7 with disabilities
8 under subsection (oo)
9 RESEARCH EXPENDITURES CREDIT AMOUNT OF CREDIT UNDER
10 UNDER SUBSECTION (QQ) SUBDIVISION FORTY-ONE OF
11 SECTION TWO HUNDRED TEN OR
12 UNDER SUBSECTION (U) OF SECTION
13 FOURTEEN HUNDRED FIFTY-SIX
14 S 5. Section 1456 of the tax law is amended by adding a new subsection
15 (u) to read as follows:
16 (U) RESEARCH EXPENDITURES CREDIT. (1) ALLOWANCE OF CREDIT. A TAXPAYER
17 SHALL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN SECTION THIRTY
18 OF THIS CHAPTER, AGAINST THE TAX IMPOSED BY THIS ARTICLE.
19 (2) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBSECTION
20 FOR ANY TAXABLE YEAR SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
21 THAN THE MINIMUM TAX FIXED BY PARAGRAPH THREE OF SUBSECTION (B) OF
22 SECTION FOURTEEN HUNDRED FIFTY-FIVE OF THIS ARTICLE. HOWEVER, IF THE
23 AMOUNT OF CREDITS ALLOWED UNDER THIS SUBSECTION FOR ANY TAXABLE YEAR
24 REDUCES THE TAX TO SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE
25 IN SUCH TAXABLE YEAR SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE
26 CREDITED OR REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE
27 THOUSAND EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS
28 OF SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER
29 NOTWITHSTANDING, NO INTEREST SHALL BE PAID THEREON.
30 S 6. Section 1511 of the tax law is amended by adding a new subdivi-
31 sion (y) to read as follows:
32 (Y) RESEARCH EXPENDITURES CREDIT. (1) ALLOWANCE OF CREDIT. A TAXPAYER
33 SHALL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN SECTION THIRTY
34 OF THIS CHAPTER, AGAINST THE TAXES IMPOSED BY THIS ARTICLE.
35 (2) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION
36 FOR ANY TAXABLE YEAR SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
37 THAN THE MINIMUM TAX FIXED BY THIS ARTICLE. HOWEVER, IF THE AMOUNT OF
38 CREDITS ALLOWED UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR REDUCES THE
39 TAX TO SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE IN SUCH
40 TAXABLE YEAR SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR
41 REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND
42 EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS OF
43 SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER
44 NOTWITHSTANDING, NO INTEREST SHALL BE PAID THEREON.
45 S 7. Subdivision 12-G of section 210 of the tax law is amended by
46 adding a new paragraph (i) to read as follows:
47 (I) ANY TAXPAYER THAT HAS RESEARCH EXPENDITURES THAT MAY BE USED IN
48 CALCULATING BOTH THE CREDIT DESCRIBED IN THIS SUBDIVISION AND THE
49 "RESEARCH EXPENDITURES CREDIT" DESCRIBED IN SECTION THIRTY OF THIS CHAP-
50 TER, MAY ELECT TO USE THOSE EXPENDITURES TO CALCULATE EITHER THE CREDIT
51 ALLOWED UNDER THIS SUBDIVISION OR THE CREDIT DESCRIBED IN SECTION THIRTY
52 OF THIS CHAPTER, BUT NOT BOTH.
S. 60--A 81 A. 160--A
1 S 8. Subsection (nn) of section 606 of the tax law is amended by
2 adding a new paragraph (9) to read as follows:
3 (9) ANY TAXPAYER THAT HAS RESEARCH EXPENDITURES THAT MAY BE USED IN
4 CALCULATING BOTH THE CREDIT DESCRIBED IN THIS SUBSECTION AND THE
5 "RESEARCH EXPENDITURES CREDIT" DESCRIBED IN SECTION THIRTY OF THIS CHAP-
6 TER, MAY USE THOSE EXPENDITURES TO CALCULATE EITHER THE CREDIT ALLOWED
7 UNDER THIS SUBSECTION OR THE CREDIT DESCRIBED IN SECTION THIRTY OF THIS
8 CHAPTER, BUT NOT BOTH.
9 S 9. The chairman of the urban development corporation, after consult-
10 ing with the commissioner of taxation and finance and the director of
11 the division of the budget shall promulgate regulations by October 31,
12 2009 to establish procedures for the awarding and allocation of the
13 research expenditures credits allowed under section thirty of the tax
14 law, as added by section one of this act. Such rules and regulations
15 shall include a description of the standards to be used to evaluate the
16 applications, the type of documentation to be provided by taxpayers to
17 substantiate the taxpayer`s New York research expenditures, and any
18 other provisions the chairman determines to be necessary. Notwithstand-
19 ing any other provisions to the contrary in the state administrative
20 procedure act, the rules and regulations described in this section shall
21 be adopted on an emergency basis if necessary.
22 S 10. The chairman of the urban development corporation shall publish
23 a report on the research expenditures credit and the research expendi-
24 tures credit certificate issuance process on or before January first of
25 each year. Such report shall include, but not be limited to, the
26 following information:
27 (a) the total number of recipients and the total amount of credits
28 awarded;
29 (b) the name of every recipient of a research credit certificate; and
30 (c) the amount of credit awarded to each recipient of a research cred-
31 it certificate.
32 The report shall be issued no later than 60 days after the conclusion of
33 the research expenditures credit allocation process.
34 S 11. The chairman of the urban development corporation shall not
35 issue research expenditures credit certificates for the credit for
36 increasing research activities allowed under section 30 of the tax law,
37 as added by section one of this act, until the director of the division
38 of the budget, in consultation with the commissioner of taxation and
39 finance, validates that the Empire Zone Program reforms enacted as part
40 of the 2009-2010 Executive Budget have resulted in $100 million in
41 savings for the 2009-10 state fiscal year.
42 S 12. This act shall take effect immediately and shall apply to taxa-
43 ble years beginning on or after January 1, 2009; provided, however that
44 the empire state film production credit under subsection (gg), the
45 empire state commercial production credit under subsection (jj) and the
46 credit for companies who provide transportation to individuals with
47 disabilities under subsection (oo) of section 606 of the tax law
48 contained in section four of this act shall expire on the same date as
49 provided in section 9 of part P of chapter 60 of the laws of 2004, as
50 amended, section 10 of part V of chapter 62 of the laws of 2006, as
51 amended and section 5 of chapter 522 of the laws of 2006, as amended,
52 respectively.
53 PART P
S. 60--A 82 A. 160--A
1 Section 1. Paragraph (b) of subdivision 12-G of section 210 of the tax
2 law, as amended by section 1-a of part A of chapter 63 of the laws of
3 2005, is amended to read as follows:
4 (b) An eligible taxpayer shall (i) have no more than one hundred full-
5 time employees, of which at least seventy-five percent are employed in
6 New York state, EXCEPT AS OTHERWISE PROVIDED IN THIS PARAGRAPH, (ii)
7 have a ratio of research and development funds to net sales, as referred
8 to in section thirty-one hundred two-e of the public authorities law,
9 which equals or exceeds six percent during its taxable year, and (iii)
10 have gross revenues, along with the gross revenues of its affiliates and
11 related members, not exceeding twenty million dollars for the taxable
12 year immediately preceding the year the taxpayer is allowed a credit
13 under this subdivision. For purposes of this paragraph, the term
14 "related member" shall have the same meaning as set forth in {clauses}
15 CLAUSE (A) {and (B)} of subparagraph one of paragraph (o) of subdivision
16 nine of section two hundred eight of this article, and the term "affil-
17 iates" shall mean those corporations that are members of the same affil-
18 iated group (as defined in section fifteen hundred four of the internal
19 revenue code) as the taxpayer. FOR PURPOSES OF SUBPARAGRAPH (I) OF THIS
20 PARAGRAPH, EMPLOYEES WHO ARE EMPLOYED OUTSIDE THE UNITED STATES DURING
21 THE TAXABLE YEAR CANNOT BE CONSIDERED; A TAXPAYER THAT MEETS THE EMPLOY-
22 MENT REQUIREMENTS IN SUBPARAGRAPH (I) OF THIS PARAGRAPH IN THE FIRST
23 YEAR IN WHICH THE CREDIT ALLOWED BY THIS SUBDIVISION IS CLAIMED WILL NOT
24 BE CONSIDERED INELIGIBLE SOLELY AS A RESULT OF HAVING MORE THAN ONE
25 HUNDRED FULL-TIME EMPLOYEES IN OTHER TAXABLE YEARS IN WHICH THE CREDIT
26 IS CLAIMED, PROVIDED AT LEAST SEVENTY-FIVE PERCENT OF THE FULL-TIME
27 EMPLOYEES IN THE OTHER TAXABLE YEARS ARE EMPLOYED IN NEW YORK STATE; AND
28 AN INDIVIDUAL WHO IS A PARTNER IN A PARTNERSHIP THAT IS A QUALIFIED
29 EMERGING TECHNOLOGY COMPANY WILL BE CONSIDERED A FULL-TIME EMPLOYEE IF
30 THE INDIVIDUAL PARTNER PARTICIPATES IN THE PARTNERSHIP ON A FULL-TIME
31 BASIS DURING THE TAXABLE YEAR AND THE INVOLVEMENT OF THE INDIVIDUAL
32 PARTNER IN THE ACTIVITIES OF THE PARTNERSHIP DURING THE TAXABLE YEAR
33 SATISFIES THE REQUIREMENTS FOR MATERIAL PARTICIPATION FOR THE SAME TAXA-
34 BLE YEAR WITHIN THE MEANING OF SUBSECTION (H) OF SECTION 469 OF THE
35 INTERNAL REVENUE CODE.
36 S 2. Subparagraphs (i) and (iii) of paragraph 2 of subsection (nn) of
37 section 606 of the tax law, as amended by section 1-a of part A of chap-
38 ter 63 of the laws of 2005, are amended to read as follows:
39 (i) have no more than one hundred full-time employees, of which at
40 least seventy-five percent are employed in New York state, EXCEPT AS
41 OTHERWISE PROVIDED IN THIS PARAGRAPH,
42 (iii) have gross revenues, along with the gross revenues of its affil-
43 iates and related members, not exceeding twenty million dollars for the
44 taxable year immediately preceding the year the taxpayer is allowed a
45 credit under this subsection. For purposes of this paragraph, the term
46 "related member" shall have the same meaning as set forth in {clauses}
47 CLAUSE (A) {and (B)} of subparagraph one of paragraph (o) of subdivision
48 9 of section two hundred eight of this chapter, and the term "affil-
49 iates" shall mean those corporations that are members of the same affil-
50 iated group (as defined in section fifteen hundred four of the internal
51 revenue code) as the taxpayer. FOR PURPOSES OF SUBPARAGRAPH (I) OF THIS
52 PARAGRAPH, EMPLOYEES WHO ARE EMPLOYED OUTSIDE THE UNITED STATES DURING
53 THE TAXABLE YEAR CANNOT BE CONSIDERED; A TAXPAYER THAT MEETS THE EMPLOY-
54 MENT REQUIREMENTS IN SUBPARAGRAPH (I) OF THIS PARAGRAPH IN THE FIRST
55 YEAR IN WHICH THE CREDIT ALLOWED BY THIS SUBSECTION IS CLAIMED WILL NOT
56 BE CONSIDERED INELIGIBLE SOLELY AS A RESULT OF HAVING MORE THAN ONE
S. 60--A 83 A. 160--A
1 HUNDRED FULL-TIME EMPLOYEES IN OTHER TAXABLE YEARS IN WHICH THE CREDIT
2 IS CLAIMED, PROVIDED AT LEAST SEVENTY-FIVE PERCENT OF THE FULL-TIME
3 EMPLOYEES IN THE OTHER TAXABLE YEARS ARE EMPLOYED IN NEW YORK STATE; AND
4 AN INDIVIDUAL WHO IS A PARTNER IN A PARTNERSHIP THAT IS A QUALIFIED
5 EMERGING TECHNOLOGY COMPANY WILL BE CONSIDERED A FULL-TIME EMPLOYEE IF
6 THE INDIVIDUAL PARTNER PARTICIPATES IN THE PARTNERSHIP ON A FULL-TIME
7 BASIS DURING THE TAXABLE YEAR AND THE INVOLVEMENT OF THE INDIVIDUAL
8 PARTNER IN THE ACTIVITIES OF THE PARTNERSHIP DURING THE TAXABLE YEAR
9 SATISFIES THE REQUIREMENTS FOR MATERIAL PARTICIPATION FOR THE SAME TAXA-
10 BLE YEAR WITHIN THE MEANING OF SUBSECTION (H) OF SECTION 469 OF THE
11 INTERNAL REVENUE CODE.
12 S 3. This act shall take effect immediately and apply to taxable years
13 beginning on or after January 1, 2010.
14 PART Q
15 Section 1. Subdivision (b) of section 1101 of the tax law is amended
16 by adding a new paragraph 27-a to read as follows:
17 (27-A) (I) "CABLE SERVICE" MEANS THE FURNISHING TO PURCHASERS OF
18 PROGRAMS AND OTHER CONTENT FROM ONE OR MORE TELEVISION OR RADIO STATIONS
19 OR NETWORKS OR OTHER PERSONS, BY MEANS OF WIRE, CABLE, FIBER-OPTIC,
20 LASER, MICROWAVE, RADIO WAVE, SATELLITE, OR ANY OTHER MEANS.
21 (II) "DIRECT-TO-HOME SATELLITE SERVICE" MEANS ONLY PROGRAMMING TRANS-
22 MITTED OR BROADCAST BY SATELLITE DIRECTLY TO THE SUBSCRIBERS` PREMISES
23 WITHOUT THE USE OF GROUND RECEIVING OR DISTRIBUTION EQUIPMENT, EXCEPT AT
24 THE SUBSCRIBERS` PREMISES OR IN THE UPLINK PROCESS TO THE SATELLITE.
25 S 2. Subdivision (c) of section 1105 of the tax law is amended by
26 adding a new paragraph 12 to read as follows:
27 (12) (A) CABLE SERVICE, INCLUDING ANY TANGIBLE PERSONAL PROPERTY AND
28 ANY SERVICE OR OTHER CONTENT PROVIDED WITH THE CABLE SERVICE, WHETHER OR
29 NOT FOR A SEPARATE CHARGE, BUT NOT INCLUDING DIRECT-TO-HOME SATELLITE
30 SERVICE, INTERNET ACCESS SERVICE AS DEFINED IN NOTE SECTION 1101 OF
31 SECTION 151 OF TITLE 47 OF THE UNITED STATES CODE, OR TELEPHONY OR
32 TELEGRAPHY OR TELEPHONE OR TELEGRAPH SERVICE OF WHATEVER NATURE.
33 (B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, IF
34 CABLE SERVICE IS RECEIVED IN A MOTOR VEHICLE OR VESSEL, THE SERVICE IS
35 SOURCED TO THE PURCHASER`S "PLACE OF PRIMARY USE," AS THAT TERM IS
36 DEFINED IN PARAGRAPH TWENTY-SIX OF SUBDIVISION (B) OF SECTION ELEVEN
37 HUNDRED ONE OF THIS ARTICLE, EXCEPT THAT: (I) THE TERM "MOBILE TELECOM-
38 MUNICATIONS CUSTOMER" MEANS "PURCHASER"; AND (II) SUBPARAGRAPH (II) OF
39 SUCH PARAGRAPH DOES NOT APPLY.
40 S 3. The tax law is amended by adding a new section 1105-E to read as
41 follows:
42 S 1105-E. STATE TAX ON DIRECT-TO-HOME SATELLITE SERVICE. (A) A TAX IS
43 HEREBY IMPOSED AND MUST BE PAID ON DIRECT-TO-HOME SATELLITE SERVICE, AT
44 A RATE EQUAL TO THE SUM OF: (1) THE STATE RATE IN THE OPENING PARAGRAPH
45 OF SECTION ELEVEN HUNDRED FIVE OF THIS PART; (2) THE RATE IN SUBDIVISION
46 (A) OF SECTION ELEVEN HUNDRED NINE OF THIS PART IF THE SERVICE IS DELIV-
47 ERED WITHIN THE METROPOLITAN COMMUTER TRANSPORTATION DISTRICT ESTAB-
48 LISHED PURSUANT TO SECTION TWELVE HUNDRED SIXTY-TWO OF THE PUBLIC
49 AUTHORITIES LAW; AND (3) THE SUM OF THE LOCAL RATES OF TAX DESCRIBED IN
50 SUBDIVISION (A) OF SECTION TWELVE HUNDRED TEN OR SECTION TWELVE HUNDRED
51 ELEVEN OF THIS CHAPTER IMPOSED PURSUANT TO THE AUTHORITY OF SUBPART B OF
52 PART I OF ARTICLE TWENTY-NINE OF THIS CHAPTER IN THE PLACE WHERE THE
53 SERVICE IS DELIVERED.
S. 60--A 84 A. 160--A
1 (B) DEPOSIT AND DISTRIBUTION OF REVENUE. AFTER SUBTRACTING THE AMOUNT
2 DISPOSED OF PURSUANT TO SUBDIVISION (H) OF SECTION TWELVE HUNDRED
3 SIXTY-ONE OF THIS CHAPTER AND THE AMOUNT DISPOSED OF UNDER SUBDIVISION
4 (I) OF SECTION ELEVEN HUNDRED NINE OF THIS PART, ANY REMAINING TAXES,
5 INTEREST AND PENALTIES COLLECTED OR RECEIVED BY THE COMMISSIONER FROM
6 THE TAX IMPOSED BY THIS SECTION WILL BE DISPOSED OF IN ACCORDANCE WITH
7 SECTION ONE HUNDRED SEVENTY-ONE-A OF THIS CHAPTER AS PROVIDED IN SECTION
8 ELEVEN HUNDRED FORTY-EIGHT OF THIS ARTICLE.
9 (C) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, THE TAXES IMPOSED BY
10 THIS SECTION WILL BE IDENTICAL TO, AND ADMINISTERED AND COLLECTED IN A
11 LIKE MANNER AS, THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED FIVE OF THIS
12 ARTICLE. ALL THE PROVISIONS OF THIS ARTICLE, INCLUDING THE DEFINITION
13 AND EXEMPTION PROVISIONS AND THE PROVISIONS RELATING OR APPLICABLE TO
14 THE ADMINISTRATION, COLLECTION AND DISPOSITION OF THE TAXES IMPOSED BY
15 THAT SECTION WILL APPLY TO THE TAX IMPOSED BY THIS SECTION SO FAR AS
16 THOSE PROVISIONS CAN BE MADE APPLICABLE TO THE TAX IMPOSED BY THIS
17 SECTION, WITH SUCH MODIFICATIONS AS MAY BE NECESSARY IN ORDER TO ADAPT
18 THE LANGUAGE OF THOSE PROVISIONS TO THE TAX IMPOSED BY THIS SECTION.
19 THOSE PROVISIONS WILL APPLY WITH THE SAME FORCE AND EFFECT AS IF THE
20 LANGUAGE OF THOSE PROVISIONS HAD BEEN SET FORTH IN FULL IN THIS SECTION,
21 EXCEPT TO THE EXTENT THAT ANY OF THOSE PROVISIONS IS EITHER INCONSISTENT
22 WITH A PROVISION OF THIS SECTION OR IS NOT RELEVANT TO THE TAX IMPOSED
23 BY THIS SECTION. FOR PURPOSES OF THIS SECTION, ANY REFERENCE IN THIS
24 CHAPTER TO A TAX OR THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED FIVE OF
25 THIS ARTICLE WILL BE DEEMED ALSO TO REFER TO THE TAX IMPOSED BY THIS
26 SECTION UNLESS A DIFFERENT MEANING IS CLEARLY REQUIRED.
27 (D) SEPARATE STATEMENT OF TAX. EVERY PERSON REQUIRED TO COLLECT THE
28 TAX IMPOSED BY THIS SECTION SHALL STATE, CHARGE, AND SHOW THAT TAX SEPA-
29 RATELY FROM THE PRICE OR CHARGE, AND ALSO SEPARATELY FROM ANY OTHER TAX
30 IMPOSED BY THIS ARTICLE OR OTHER LAW ON ANY SALES SLIP, INVOICE, RECEIPT
31 OR OTHER STATEMENT OR MEMORANDUM OF THE PRICE OR CHARGE, PAID OR PAYA-
32 BLE, GIVEN TO THE CUSTOMER.
33 (E) TAXES TO BE IN ADDITION TO ANY OTHER. THE TAXES IMPOSED BY THIS
34 SECTION SHALL BE IN ADDITION TO ANY OTHER TAX IMPOSED OR AUTHORIZED TO
35 BE IMPOSED BY THIS CHAPTER OR OTHER LAW.
36 (F) TAXES NOT TO APPLY TO OTHER IMPOSITIONS. THE TAXES IMPOSED BY THIS
37 SECTION SHALL NOT APPLY TO THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED
38 SEVEN, ELEVEN HUNDRED EIGHT, OR ELEVEN HUNDRED NINE OF THIS ARTICLE OR
39 TO TAXES AUTHORIZED TO BE IMPOSED BY ARTICLE TWENTY-NINE OF THIS CHAP-
40 TER.
41 S 4. Section 1109 of the tax law is amended by adding a new subdivi-
42 sion (i) to read as follows:
43 (I) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE
44 PORTION OF THE TAXES, INTEREST AND PENALTIES COLLECTED OR RECEIVED BY
45 THE COMMISSIONER FROM THE TAX IMPOSED BY SECTION ELEVEN HUNDRED FIVE-E
46 OF THIS PART IN THE AREA OF THE STATE WITHIN THE METROPOLITAN COMMUTER
47 TRANSPORTATION DISTRICT BASED ON THE RATE OF TAX IN EFFECT IN SUBDIVI-
48 SION (A) OF THIS SECTION, WILL BE DISPOSED OF IN ACCORDANCE WITH THE
49 PROVISIONS OF SUBDIVISION (D) OF THIS SECTION.
50 S 5. Clause (ii) of paragraph 1 of subdivision (b) of section 1116 of
51 the tax law, as amended by section 1 of part KK-1 of chapter 57 of the
52 laws of 2008, is amended to read as follows:
53 (ii) sales, other than for resale, of services described in subdivi-
54 sion (b) or paragraph five OR TWELVE of subdivision (c) of section elev-
55 en hundred five of this article OR IN SECTION ELEVEN HUNDRED FIVE-E OF
56 THIS ARTICLE by that organization, whether or not at a shop or store;
S. 60--A 85 A. 160--A
1 S 6. Section 1148 of the tax law, as amended by chapter 3 of the laws
2 of 2004, is amended to read as follows:
3 S 1148. Deposit and disposition of revenue. All taxes, interest and
4 penalties collected or received by the commissioner under this article
5 shall be deposited and disposed of pursuant to the provisions of section
6 one hundred seventy-one-a of this chapter; provided however, the comp-
7 troller shall on or before the twelfth day of each month, pay all such
8 taxes, interest and penalties collected under this article and remaining
9 to the comptroller`s credit in such banks, banking houses or trust
10 companies at the close of business on the last day of the preceding
11 month, into the general fund of the state treasury, except as otherwise
12 provided in sections ninety-two-d and ninety-two-r of the state finance
13 law {and}, sections eleven hundred two, eleven hundred four and eleven
14 hundred nine of this article, AND SUBDIVISION (B) OF SECTION ELEVEN
15 HUNDRED FIVE-E OF THIS ARTICLE.
16 S 7. Section 1261 of the tax law is amended by adding a new subdivi-
17 sion (h) to read as follows:
18 (H) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, A PORTION OF
19 THE TAXES, INTEREST AND PENALTIES COLLECTED OR RECEIVED BY THE COMMIS-
20 SIONER FROM THE TAX IMPOSED BY SECTION ELEVEN HUNDRED FIVE-E OF THIS
21 CHAPTER WILL BE ALLOCATED TO EACH LOCALITY THAT IMPOSES THE TAXES
22 DESCRIBED IN SUBDIVISION (A) OF SECTION TWELVE HUNDRED TEN OR SECTION
23 TWELVE HUNDRED ELEVEN OF THIS ARTICLE BASED ON THE SUM OF THE LOCAL
24 RATES OF TAX IN EFFECT IN THAT LOCALITY IMPOSED PURSUANT TO THE AUTHORI-
25 TY OF SUBPART B OF PART I OF THIS ARTICLE. THE AMOUNT TO BE ALLOCATED TO
26 EACH LOCALITY WILL BE CERTIFIED BY THE COMMISSIONER IN ACCORDANCE WITH
27 SUBDIVISION (A) OF THIS SECTION AND, AFTER RESERVING AN AMOUNT FOR
28 REFUNDS AND THE REASONABLE COSTS OF THE COMMISSIONER IN ACCORDANCE WITH
29 SUBDIVISION (B) OF THIS SECTION, THE REMAINDER WILL BE NET COLLECTIONS
30 AND WILL BE DISTRIBUTED TO EACH LOCALITY IN ACCORDANCE WITH THE
31 PROVISIONS OF THIS PART APPLICABLE TO THE RESPECTIVE LOCALITY.
32 S 8. In accordance with section 1105-E of the tax law, as added by
33 section three of this act, the legislature intends that the tax on
34 direct-to-home satellite service be imposed at the same total rate as
35 similar services are taxed under article 28 and pursuant to the authori-
36 ty of article 29 of the tax law, and that, consistent with the
37 provisions of section 152 of title 47 of the United States code, the
38 state revenues derived from the tax on direct-to-home satellite service
39 be shared with each locality that imposes the taxes described in subdi-
40 vision (a) of section 1210 or 1211 of the tax law as provided in this
41 act. However, the legislature further intends that, if the state rate
42 set forth in such section 1105-E is invalidated or reduced by a court of
43 final, competent jurisdiction, revenues from the sales tax imposed on
44 direct-to-home satellite service must be preserved by imposing a uniform
45 state rate of sales tax on that service. Therefore, if a court of final,
46 competent jurisdiction adjudges the state sales tax rate set forth in
47 such section 1105-E to be invalid, the state rate imposed on direct-to-
48 home satellite service will be eight and three-quarters percent and that
49 rate will apply statewide. The taxes, interest and penalties collected
50 or received by the commissioner of taxation and finance from such state-
51 wide rate, after reserving an amount for refunds and the reasonable
52 costs of the commissioner will be allocated based on the respective
53 rates among the state and any county and city imposing general sales
54 taxes pursuant to the authority of subdivision (a) of section 1210 of
55 the tax law and any school district in which the taxes authorized by
56 section 1211 of the tax law are in effect, and if the taxes imposed by
S. 60--A 86 A. 160--A
1 section 1109 of the tax law are in effect where the service is deliv-
2 ered, will be deposited with the mass transit operating assistance fund
3 as provided in such section 1109. Moreover, the state rate provided for
4 in this section will, in that event, take effect on the first day of the
5 first month following the date the judgment of the court becomes final
6 and will apply to sales occurring and services rendered on or after that
7 date, in accordance with the applicable transitional provisions in
8 section 1106 of the tax law.
9 S 9. This act shall take effect on June 1, 2009, and shall apply to
10 sales occurring and services rendered on or after that date in accord-
11 ance with the applicable transitional provisions in sections 1106 and
12 1217 of the tax law.
13 PART R
14 Section 1. Subdivisions 1 and 19 of section 470 of the tax law, as
15 amended by section 1 of part MM1 of chapter 57 of the laws of 2008, are
16 amended to read as follows:
17 1. "Cigarette." (a) Any roll for smoking made wholly or in part of
18 tobacco or of any other substance wrapped in paper or in any other
19 substance not containing tobacco, and (b) any roll for smoking made
20 wholly or in part of tobacco wrapped in any substance containing tobacco
21 that, because of its appearance, the type of tobacco used in the filler,
22 or its packaging and labeling, is likely to be offered to, or purchased
23 by, consumers as a cigarette described in paragraph (a) of this subdivi-
24 sion. {However, a roll will not be considered to be a cigarette for
25 purposes of paragraph (b) of this subdivision if it is not treated as a
26 cigarette for federal excise tax purposes under the applicable federal
27 statute in effect on April first, two thousand eight.}
28 19. "Cigar." Any roll of tobacco wrapped in leaf tobacco or in any
29 substance containing tobacco (other than any roll of tobacco that is a
30 cigarette as defined in subdivision one of this section). {However, a
31 roll will not be considered to be a cigar for purposes of this subdivi-
32 sion if it is not treated as a cigar for federal excise tax purposes
33 under the applicable federal statute in effect on April first, two thou-
34 sand eight.}
35 S 2. Paragraph (a) of subdivision 1 of section 471-b of the tax law,
36 as amended by section 2 of part QQ1 of chapter 57 of the laws of 2008,
37 is amended and a new paragraph (c) is added to read as follows:
38 (a) Such tax on tobacco products other than snuff AND CIGARS shall be
39 at the rate of thirty-seven percent of the wholesale price, and is
40 intended to be imposed only once upon the sale of any tobacco products
41 other than snuff AND CIGARS.
42 (C) SUCH TAX ON CIGARS SHALL BE AT THE RATE OF FIFTY CENTS PER CIGAR.
43 S 3. Section 471-c of the tax law, as separately amended by section 3
44 of part QQ1 of chapter 57 and chapter 552 of the laws of 2008, is
45 amended to read as follows:
46 S 471-c. Use tax on tobacco products. (A) There is hereby imposed and
47 shall be paid a tax on all tobacco products used in the state by any
48 person, except that no such tax shall be imposed (1) if the tax provided
49 in section four hundred seventy-one-b of this article is paid, or (2) on
50 the use of tobacco products which are exempt from the tax imposed by
51 said section, or (3) on the use of two hundred fifty cigars or less, or
52 five pounds or less of tobacco other than roll-your-own tobacco, or
53 thirty-six ounces or less of roll-your-own tobacco brought into the
54 state on, or in the possession of, any person.
S. 60--A 87 A. 160--A
1 {(a)} (I) Such tax on tobacco products other than snuff AND CIGARS
2 shall be at the rate of thirty-seven percent of the wholesale price.
3 {(b)} (II) Such tax on snuff shall be at the rate of ninety-six cents
4 per ounce and a proportionate rate on any fractional parts of an ounce,
5 provided that cans or packages of snuff with a net weight of less than
6 one ounce shall be taxed at the equivalent rate of cans or packages
7 weighing one ounce. Such tax shall be computed based on the net weight
8 as listed by the manufacturer.
9 (III) SUCH TAX ON CIGARS SHALL BE AT THE RATE OF FIFTY CENTS PER
10 CIGAR.
11 (B) Within twenty-four hours after liability for the tax accrues, each
12 such person shall file with the commissioner a return in such form as
13 the commissioner may prescribe together with a remittance of the tax
14 shown to be due thereon. For purposes of this article, the word "use"
15 means the exercise of any right or power actual or constructive and
16 shall include but is not limited to the receipt, storage or any keeping
17 or retention for any length of time, but shall not include possession
18 for sale. All the other provisions of this article, if not inconsistent,
19 shall apply to the administration and enforcement of the tax imposed by
20 this section in the same manner as if the language of said provisions
21 had been incorporated in full into this section.
22 S 4. Paragraphs (e) and (f) of subdivision 2 of section 480 of the tax
23 law, as amended by chapter 744 of the laws of 1990, are amended and a
24 new paragraph (g) is added to read as follows:
25 (e) {Any} SUCH APPLICANT OR ANY controlling person {of such applicant}
26 has committed any of the acts specified in subdivision three of this
27 section within the preceding five years, {or}
28 (f) Such applicant or any controlling person has been finally deter-
29 mined to have violated any of the provisions of this article or article
30 twenty-A of this chapter, or any rule or regulation adopted pursuant to
31 this article or article twenty-A of this chapter{.}, OR
32 (G) AFTER CAREFULLY EVALUATING THE CHARACTER, FITNESS, EXPERIENCE,
33 MATURITY AND FINANCIAL RESPONSIBILITY OF THE APPLICANT OR ANY CONTROL-
34 LING PERSON, THE COMMISSIONER DETERMINES THAT THE PUBLIC CONVENIENCE AND
35 ADVANTAGE WOULD NOT BE SERVED BY APPROVAL OF THE APPLICATION.
36 S 5. Subparagraphs (ii), (iii) and (iv) of paragraph (b) of subdivi-
37 sion 3 of section 480 of the tax law, subparagraphs (ii) and (iii) as
38 added by chapter 860 of the laws of 1987 and subparagraph (iv) as
39 amended by chapter 61 of the laws of 1989, are amended and two new
40 subparagraphs (v) and (vi) are added to read as follows:
41 (ii) Has been convicted in a court of competent jurisdiction, either
42 within or without the state, of a {felony} CRIME, bearing on the
43 licensee`s duties and obligations under this chapter,
44 (iii) Has impersonated any person represented to be a wholesale dealer
45 under this article but not in fact licensed under this section, {or}
46 (iv) Has knowingly aided and abetted the sale of cigarettes or tobacco
47 products by a person which such licensee or controlling person knows (A)
48 has not been licensed by the commissioner {of taxation and finance} and
49 (B) is a wholesale dealer pursuant to the terms of subdivision eight of
50 section four hundred seventy of this {chapter.} ARTICLE,
51 (V) HAS BEEN CONVICTED IN A COURT OF COMPETENT JURISDICTION, EITHER
52 WITHIN OR WITHOUT THE STATE, OF A CRIME INVOLVING MORAL TURPITUDE, OR
53 (VI) HAS ENGAGED IN CONDUCT WHICH BEARS ON THE LICENSEE`S OR CONTROL-
54 LING PERSON`S CHARACTER, FITNESS, EXPERIENCE, MATURITY OR FINANCIAL
55 RESPONSIBILITY AND WOULD HAVE ALLOWED THE COMMISSIONER TO REFUSE TO
56 ISSUE A LICENSE TO SUCH LICENSEE.
S. 60--A 88 A. 160--A
1 S 6. Paragraphs (a) and (b) of subdivision 4 of section 480-a of the
2 tax law, as added by chapter 629 of the laws of 1996, are amended to
3 read as follows:
4 (a) If a retail dealer possesses or sells unstamped or unlawfully
5 stamped packages of cigarettes, or if a retail dealer is also licensed
6 as an agent pursuant to section four hundred seventy-two OF THIS ARTICLE
7 and it possesses unlawfully stamped packages of cigarettes or sells
8 unstamped or unlawfully stamped packages of cigarettes at retail, OR IF
9 A RETAIL DEALER POSSESSES OR SELLS TOBACCO PRODUCTS WITH RESPECT TO
10 WHICH THE TOBACCO PRODUCTS TAX HAS NOT BEEN PAID OR ASSUMED BY A
11 DISTRIBUTOR OR A TOBACCO PRODUCTS DEALER, (i) its registration shall be
12 suspended for a period of not more than six months, or (ii) for a second
13 such possession or sale within a period of five years, its registration
14 shall be suspended for a period of up to thirty-six months, or (iii) for
15 a third such possession or sale within a period of five years, its
16 registration may be revoked for a period of up to five years. A retail
17 dealer registration shall be suspended or revoked pursuant to this
18 subdivision immediately upon such dealer`s receipt of written notice of
19 suspension or revocation from the commissioner. If a retail dealer sells
20 cigarettes OR TOBACCO PRODUCTS through more than one place of business
21 in this state, the retail dealer registration shall not be suspended or
22 revoked pursuant to this subdivision, but the certificate of registra-
23 tion issued to the place of business, cart, stand, truck or other
24 merchandising device where unstamped or unlawfully stamped cigarettes OR
25 TOBACCO PRODUCTS WITH RESPECT TO WHICH THE TOBACCO PRODUCTS TAX HAS NOT
26 BEEN PAID OR ASSUMED BY A DISTRIBUTOR OR A TOBACCO PRODUCTS DEALER were
27 found shall be suspended or cancelled for possession or sale of
28 unstamped or unlawfully stamped packages of cigarettes OR SUCH TOBACCO
29 PRODUCTS, as if such certificate of registration were a retail dealer
30 registration. A suspension or cancellation of a certificate of registra-
31 tion shall be treated as if it were a suspension or revocation of a
32 registration. If unstamped or unlawfully stamped cigarettes OR SUCH
33 TOBACCO PRODUCTS are found in a retail dealer`s warehouse, the suspen-
34 sion or revocation of the retail dealer`s registration pursuant to this
35 subdivision shall be applicable to each retail place of business in this
36 state through which such retail dealer sells cigarettes OR TOBACCO
37 PRODUCTS.
38 (b) A retail dealer who is notified of a suspension or revocation of
39 its registration pursuant to this subdivision shall have the right to
40 have the suspension or revocation reviewed by the commissioner or his OR
41 HER designee by contacting the department at a telephone number or an
42 address to be disclosed in the notice of suspension or revocation within
43 ten days of such dealer`s receipt of such notification. The retail deal-
44 er may present written evidence or argument in support of its defense to
45 the suspension or revocation, or may appear at a scheduled conference
46 with the commissioner or his OR HER designee to present oral arguments
47 and written and oral evidence in support of such defense. The commis-
48 sioner or his OR HER designee is authorized to delay the effective date
49 of the suspension or revocation to enable the retail dealer to present
50 further evidence or arguments in connection with the suspension or revo-
51 cation. The commissioner or his OR HER designee shall cancel the suspen-
52 sion or revocation of registration if the commissioner or his OR HER
53 designee is not satisfied by a preponderance of the evidence that the
54 retail dealer possessed or sold unstamped or unlawfully stamped packages
55 of cigarettes OR TOBACCO PRODUCTS WITH RESPECT TO WHICH THE TOBACCO
S. 60--A 89 A. 160--A
1 PRODUCTS TAX HAD NOT BEEN PAID OR ASSUMED BY A DISTRIBUTOR OR A TOBACCO
2 PRODUCTS DEALER.
3 S 7. Paragraph (b) of subdivision 1 of section 481 of the tax law, as
4 amended by chapter 262 of the laws of 2000, subparagraph (i) and clause
5 (A) of subparagraph (ii) as amended by chapter 604 of the laws of 2008,
6 is amended and a new paragraph (e) is added to read as follows:
7 (b) (i) In addition to any other penalty imposed by this article, the
8 commissioner may (A) impose a penalty of not more than one hundred fifty
9 dollars for each two hundred cigarettes, or fraction thereof, in excess
10 of one thousand cigarettes in unstamped or unlawfully stamped packages
11 in the possession or under the control of any person or (B) impose a
12 penalty of not more than two hundred dollars for each ten unaffixed
13 false, altered or counterfeit cigarette tax stamps, imprints or
14 impressions, or fraction thereof, in the possession or under the control
15 of any person. In addition, the commissioner may impose a penalty of not
16 more than seventy-five dollars for each fifty cigars or one pound of
17 {tobacco} SNUFF, or fraction thereof, in excess of two hundred fifty
18 cigars or five pounds of {tobacco} SNUFF in the possession or under the
19 control of any person and a penalty of not more than one hundred fifty
20 dollars for each fifty cigars or pound of {tobacco} SNUFF, or fraction
21 thereof, in excess of five hundred cigars or ten pounds of {tobacco}
22 SNUFF in the possession or under the control of any person, with respect
23 to which the tobacco products tax has not been paid or assumed by a
24 distributor or tobacco products dealer; provided, however, that any such
25 penalty imposed shall not exceed seven thousand five hundred dollars in
26 the aggregate. The commissioner may impose a penalty of not more than
27 seventy-five dollars for each fifty cigars or one pound of {tobacco}
28 SNUFF, or fraction thereof, in excess of fifty cigars or one pound of
29 {tobacco} SNUFF in the possession or under the control of any tobacco
30 products dealer or distributor appointed by the commissioner, and a
31 penalty of not more than one hundred fifty dollars for each fifty cigars
32 or pound of {tobacco} SNUFF, or fraction thereof, in excess of two
33 hundred fifty cigars or five pounds of {tobacco} SNUFF in the possession
34 or under the control of any such dealer or distributor, with respect to
35 which the tobacco products tax has not been paid or assumed by a
36 distributor or a tobacco products dealer; provided, however, that any
37 such penalty imposed shall not exceed fifteen thousand dollars in the
38 aggregate.
39 (ii) The penalties imposed by this subparagraph may be imposed by the
40 commissioner in addition to any other penalty imposed by this article,
41 but in lieu of the penalties imposed by subparagraph (i) of this para-
42 graph:
43 (A) (I) (1) not less than thirty dollars but not more than two hundred
44 dollars for each two hundred cigarettes, or fraction thereof, in excess
45 of one thousand cigarettes but less than or equal to five thousand ciga-
46 rettes in unstamped or unlawfully stamped packages knowingly in the
47 possession or knowingly under the control of any person or (2) not less
48 than thirty dollars but not more than two hundred dollars for each ten
49 unaffixed false, altered or counterfeit cigarette tax stamps, imprints
50 or impressions, or fraction thereof, less than or equal to two hundred
51 fifty unaffixed false, altered or counterfeit cigarette tax stamps,
52 imprints or impressions, knowingly in the possession or {knowing} KNOW-
53 INGLY under the control of any person;
54 (II) (1) not less than seventy-five dollars but not more than two
55 hundred dollars for each two hundred cigarettes, or fraction thereof, in
56 excess of five thousand cigarettes but less than or equal to twenty
S. 60--A 90 A. 160--A
1 thousand cigarettes in unstamped or unlawfully stamped packages knowing-
2 ly in the possession or knowingly under the control of any person or (2)
3 not less than seventy-five dollars but not more than two hundred dollars
4 for each ten unaffixed false, altered or counterfeit cigarette tax
5 stamps, imprints or impressions, or fraction thereof, in excess of two
6 hundred fifty unaffixed false, altered or counterfeit cigarette tax
7 stamps, imprints or impressions but less than or equal to one thousand
8 unaffixed false, altered or counterfeit cigarette tax stamps, imprints
9 or impressions, knowingly in the possession or knowingly under the
10 control of any person; and
11 (III) (1) not less than one hundred dollars but not more than two
12 hundred dollars for each two hundred cigarettes, or fraction thereof, in
13 excess of twenty thousand cigarettes in unstamped or unlawfully stamped
14 packages, knowingly in the possession or knowingly under the control of
15 any person or (2) not less than one hundred dollars but not more than
16 two hundred dollars for each ten unaffixed false, altered or counterfeit
17 cigarette tax stamps, imprints or impressions, or fraction thereof, in
18 excess of one thousand unaffixed false, altered or counterfeit cigarette
19 tax stamps, imprints or impressions, knowingly in the possession or
20 knowingly under the control of any person.
21 (B)(I) not less than twenty-five dollars but not more than one hundred
22 dollars for each fifty cigars or one pound of {tobacco} SNUFF, or frac-
23 tion thereof, in excess of two hundred fifty cigars or five pounds of
24 {tobacco} SNUFF knowingly in the possession or knowingly under the
25 control of any person, with respect to which the tobacco products tax
26 has not been paid or assumed by a distributor or tobacco products deal-
27 er; and
28 (II) not less than fifty dollars but not more than two hundred dollars
29 for each fifty cigars or pound of {tobacco} SNUFF, or fraction thereof,
30 in excess of five hundred cigars or ten pounds of {tobacco} SNUFF know-
31 ingly in the possession or knowingly under the control of any person,
32 with respect to which the tobacco products tax has not been paid or
33 assumed by a distributor or tobacco products dealer; provided, however,
34 that any such penalty imposed under this clause shall not exceed ten
35 thousand dollars in the aggregate.
36 (C) (I) not less than twenty-five dollars but not more than one
37 hundred dollars for each fifty cigars or one pound of {tobacco} SNUFF,
38 or fraction thereof, in excess of fifty cigars or one pound of {tobacco}
39 SNUFF knowingly in the possession or knowingly under the control of any
40 person, with respect to which the tobacco products tax has not been paid
41 or assumed by a distributor or tobacco products dealer; and
42 (II) not less than fifty dollars but not more than two hundred dollars
43 for each fifty cigars or pound of {tobacco} SNUFF, or fraction thereof,
44 in excess of two hundred fifty cigars or five pounds of {tobacco} SNUFF
45 knowingly in the possession or knowingly under the control of any
46 person, with respect to which the tobacco products tax has not been paid
47 or assumed by a distributor or a tobacco products dealer; provided,
48 however, that any such penalty imposed under this clause shall not
49 exceed twenty thousand dollars in the aggregate.
50 (iii) IN ADDITION TO ANY OTHER PENALTY IMPOSED BY LAW, THE COMMISSION-
51 ER MAY IMPOSE A PENALTY OF TWO HUNDRED PERCENT OF THE AMOUNT OF THE TAX
52 FOR EACH POUND OF TOBACCO, OTHER THAN CIGARS AND SNUFF, IN THE
53 POSSESSION OR UNDER THE CONTROL OF ANY PERSON, WITH RESPECT TO WHICH THE
54 TOBACCO PRODUCTS TAX HAS NOT BEEN PAID OR ASSUMED BY A DISTRIBUTOR OR
55 TOBACCO PRODUCTS DEALER. PROVIDED, HOWEVER, THE PENALTY IMPOSED UNDER
S. 60--A 91 A. 160--A
1 THIS SUBPARAGRAPH SHALL ONLY APPLY IF THE AMOUNT OF TOBACCO, OTHER THAN
2 CIGARS AND SNUFF, EQUALS OR EXCEEDS FIVE POUNDS.
3 (IV) Any penalty provided for in this paragraph shall be determined as
4 provided in section four hundred seventy-eight of this {chapter}
5 ARTICLE, and may be reviewed only pursuant to such section. Such penalty
6 shall be collected in the same manner as the taxes imposed by this arti-
7 cle. The commissioner in {the commissioner`s} HIS OR HER discretion, may
8 remit all or part of such penalty. Such penalty shall be paid to the
9 department and disposed of as hereinafter provided with respect to
10 moneys derived from the tax.
11 (E) IN ADDITION TO ANY OTHER PENALTIES THAT MAY BE IMPOSED BY LAW, ANY
12 OR ALL OF THE FOLLOWING PENALTIES MAY BE IMPOSED:
13 (I) ANY PERSON WHO FAILS TO FILE AN INFORMATIONAL RETURN UNDER THIS
14 ARTICLE ON OR BEFORE THE PRESCRIBED DATE MUST PAY A PENALTY OF FIFTEEN
15 HUNDRED DOLLARS FOR THE FIRST VIOLATION AND A PENALTY OF THREE THOUSAND
16 DOLLARS FOR EACH SUBSEQUENT VIOLATION, UNLESS IT CAN BE SHOWN THAT THIS
17 FAILURE IS DUE TO REASONABLE CAUSE AND NOT WILLFUL NEGLECT.
18 (II) ANY PERSON WHO FAILS TO FILE AN INFORMATIONAL RETURN WITHIN SIXTY
19 DAYS OF THE DATE PRESCRIBED FOR FILING MUST PAY A PENALTY OF TWO THOU-
20 SAND DOLLARS FOR THE FIRST VIOLATION AND A PENALTY OF FOUR THOUSAND
21 DOLLARS FOR EACH SUBSEQUENT VIOLATION, UNLESS IT CAN BE SHOWN THAT THIS
22 FAILURE IS DUE TO REASONABLE CAUSE AND NOT WILLFUL NEGLECT.
23 (III) ANY PERSON WHO FAILS TO FILE A COMPLETE INFORMATIONAL RETURN
24 MUST PAY A PENALTY OF FIFTEEN HUNDRED DOLLARS FOR THE FIRST VIOLATION
25 AND A PENALTY OF THREE THOUSAND DOLLARS FOR EACH SUBSEQUENT VIOLATION,
26 UNLESS IT CAN BE SHOWN THAT THIS FAILURE IS DUE TO REASONABLE CAUSE AND
27 NOT WILLFUL NEGLECT.
28 (IV) IN ADDITION TO ANY CRIMINAL PENALTY PROVIDED BY LAW, IF ANY
29 PERSON MAKES A STATEMENT ON AN INFORMATIONAL RETURN AND, AS OF THE TIME
30 OF THE STATEMENT, THERE WAS NO REASONABLE BASIS FOR SUCH STATEMENT, THAT
31 PERSON MUST PAY A PENALTY OF TWO THOUSAND DOLLARS FOR THE FIRST
32 VIOLATION AND A PENALTY OF FOUR THOUSAND DOLLARS FOR EACH SUBSEQUENT
33 VIOLATION.
34 S 8. Section 481 of the tax law is amended by adding a new subdivision
35 2-a to read as follows:
36 2-A. ANY OFFICER, DIRECTOR, SHAREHOLDER OR EMPLOYEE OF A CORPORATION
37 OR OF A DISSOLVED CORPORATION, ANY EMPLOYEE OF A PARTNERSHIP OR ANY
38 EMPLOYEE OF AN INDIVIDUAL PROPRIETORSHIP, WHO AS AN OFFICER, DIRECTOR,
39 SHAREHOLDER OR EMPLOYEE IS UNDER A DUTY TO ACT FOR SUCH CORPORATION,
40 PARTNERSHIP OR PROPRIETORSHIP IN COMPLYING WITH ANY REQUIREMENT OF THIS
41 ARTICLE, AND ANY PARTNER OF A PARTNERSHIP, THAT FAILS TO PAY THE TAXES
42 IMPOSED BY OR PURSUANT TO THIS ARTICLE, WILL, IN ADDITION TO OTHER
43 PENALTIES PROVIDED BY LAW, BE LIABLE FOR A PENALTY EQUAL TO THE TOTAL
44 AMOUNT OF THE TAX NOT PAID, PLUS PENALTIES AND INTEREST COMPUTED PURSU-
45 ANT TO THIS SECTION. IF THE COMMISSIONER DETERMINES THAT THIS FAILURE
46 WAS DUE TO REASONABLE CAUSE AND NOT DUE TO WILLFUL NEGLECT, IT MAY WAIVE
47 ALL OR PART OF THE PENALTY IMPOSED UNDER THIS SUBDIVISION. THAT PENALTY
48 WILL BE DETERMINED, ASSESSED, COLLECTED AND PAID IN THE SAME MANNER AS
49 THE TAXES IMPOSED BY THIS ARTICLE AND WILL BE DISPOSED OF AS HEREINAFTER
50 PROVIDED WITH RESPECT TO MONEYS DERIVED FROM THE TAX.
51 S 9. Subdivision 1 of section 11-1301 of the administrative code of
52 the city of New York, is amended by section 3 of part MM-1 of chapter 57
53 of the laws of 2008, is amended to read as follows:
54 1. "Cigarette." (a) Any roll for smoking made wholly or in part of
55 tobacco or any other substance wrapped in paper or in any other
56 substance not containing tobacco, and (b) any roll for smoking made
S. 60--A 92 A. 160--A
1 wholly or in part of tobacco wrapped in any substance containing tobacco
2 which, because of its appearance, the type of tobacco used in the
3 filler, or its packaging and labeling, is likely to be offered to, or
4 purchased by, consumers as a cigarette described in paragraph (a) of
5 this subdivision. {However, a roll will not be considered to be a ciga-
6 rette for purposes of paragraph (b) of this subdivision if it is not
7 treated as a cigarette for federal excise tax purposes under the appli-
8 cable federal statute in effect on April first, two thousand eight.}
9 S 10. Subdivision b of section 20-201 of the administrative code of
10 the city of New York, as amended by section 4 of part MM-1 of chapter 57
11 of the laws of 2008, is amended to read as follows:
12 b. "Cigarette" shall mean (1) any roll for smoking made wholly or in
13 part of tobacco or any other substance wrapped in paper or in any other
14 substance not containing tobacco, and (2) any roll for smoking made
15 wholly or in part of tobacco wrapped in any substance containing tobacco
16 that, because of its appearance, the type of tobacco used in the filler,
17 or its packaging and labeling, is likely to be offered to, or purchased
18 by, consumers as a cigarette described in paragraph one of this subdivi-
19 sion. {However, a roll will not be considered to be a cigarette for
20 purposes of paragraph two of this subdivision if it is not treated as a
21 cigarette for federal excise tax purposes under the applicable federal
22 statute in effect on April first, two thousand eight.}
23 S 11. Subdivision 2 of section 1 of chapter 235 of the laws of 1952
24 relating to enabling any city of the state having a population of one
25 million or more to adopt, and amend local laws, imposing certain speci-
26 fied types of taxes on cigarettes which the legislature has or would
27 have power and authority to impose, to provide for the review of such
28 taxes, and to limit the application of such local laws, as amended by
29 section 5 of part MM-1 of chapter 57 of the laws of 2008, is amended to
30 read as follows:
31 (2) As used herein, the term "cigarette" shall mean and include (a)
32 any roll for smoking made wholly or in part of tobacco or of any other
33 substance wrapped in paper or in any other substance not containing
34 tobacco, and (b) any roll for smoking made wholly or in part of tobacco
35 wrapped in any substance containing tobacco that, because of its appear-
36 ance, the type of tobacco used in the filler, or its packaging and
37 labeling, is likely to be offered to, or purchased by, consumers as a
38 cigarette described in paragraph (a) of this subdivision. {However, a
39 roll will not be considered to be a cigarette for purposes of paragraph
40 (b) of this subdivision if it is not treated as a cigarette for federal
41 excise tax purposes under the applicable federal statute in effect on
42 April first, two thousand eight.} The term "cigar" does not include any
43 cigarette as defined in this subdivision.
44 S 12. This act shall take effect immediately; provided however that
45 section one of this act shall take effect April 1, 2009; provided,
46 further, that any tobacco product manufacturer required to file a
47 certification between April 16 and April 30, 2008, under subdivision 1
48 of section 480-b of the tax law, with respect to cigarettes that are
49 first being defined as cigarettes as a result of the amendments made by
50 this act, must file that certification no later than 60 days after the
51 date this act becomes a law; and provided further that sections two,
52 three and four of this act shall take effect April 1, 2009, and shall
53 apply to cigars that first become subject to taxation under article 20
54 of the tax law on or after that date; and provided further that sections
55 five, six, seven and eight of this act shall take effect on the first
S. 60--A 93 A. 160--A
1 day of the first month next occurring 90 days after this act becomes a
2 law and shall apply to sales made on or after such date.
3 PART S
4 Section 1. Paragraph 3 of subdivision (b) of section 1101 of the tax
5 law, as amended by section 21 of part Y of chapter 63 of the laws of
6 2000, is amended to read as follows:
7 (3) Receipt. The amount of the sale price of any property and the
8 charge for any service taxable under this article, including gas and gas
9 service and electricity and electric service of whatever nature, valued
10 in money, whether received in money or otherwise AND WHETHER RECEIVED
11 FROM THE PURCHASER OR A THIRD PARTY, including any amount for which
12 credit is allowed by the vendor to the purchaser, without any deduction
13 for expenses {or}, early payment discounts {and} OR ANY DISCOUNT GIVEN
14 FOR A COUPON. RECEIPT also {including} INCLUDES any charges by the
15 vendor to the purchaser for shipping or delivery, and, with respect to
16 gas and gas service and electricity and electric service, any charges by
17 the vendor for transportation, transmission or distribution, regardless
18 of whether such charges are separately stated in the written contract,
19 if any, or on the bill rendered to such purchaser and regardless of
20 whether such shipping or delivery or transportation, transmission, or
21 distribution is provided by such vendor or a third party, but {exclud-
22 ing} EXCLUDES any credit for tangible personal property accepted in part
23 payment and intended for resale. For special rules governing computation
24 of receipts, see section eleven hundred eleven OF THIS ARTICLE.
25 S 2. Subdivision (b) of section 1101 of the tax law is amended by
26 adding a new paragraph 33 to read as follows:
27 (33) COUPON. (A) AN INSTRUMENT PROVIDED BY A VENDOR OR A THIRD PARTY,
28 THAT IS PRESENTED AND SURRENDERED BY A PURCHASER TO THE VENDOR IN ORDER
29 TO RECEIVE A REDUCTION IN THE SALE PRICE, WHETHER OR NOT ANY PORTION OF
30 THE PRICE REDUCTION IS PAID TO THE VENDOR BY A THIRD PARTY.
31 (B) FOR PURPOSES OF THE TAX IMPOSED BY SECTION ELEVEN HUNDRED TEN AND
32 FOR PURPOSES OF SECTION ELEVEN HUNDRED ELEVEN OF THIS ARTICLE, THE TERM
33 "CONSIDERATION" INCLUDES ANY DISCOUNT GIVEN FOR A COUPON.
34 S 3. This act shall take effect on June 1, 2009 and shall apply to
35 sales or uses occurring on or after that date in accordance with the
36 applicable transitional provisions in sections 1106 and 1217 of the tax
37 law.
38 PART T
39 Section 1. The closing paragraph of subdivision 1 of section 98-a of
40 the state finance law, as amended by section 13 of part Y of chapter 61
41 of the laws of 2005, is amended to read as follows:
42 Provided, however, that income received from the investment of moneys
43 of the local assistance account, the state purposes account and the
44 capital projects fund may be credited in whole or in part to one or more
45 of such funds to the extent necessary to reimburse first instance appro-
46 priations for interest on temporary obligations issued on behalf of the
47 fund or funds to be credited. Notwithstanding any other provision of
48 this section or of any other general or special law, all moneys avail-
49 able and retained on deposit for the payment of lottery prizes may be
50 invested OR CAUSED TO BE INVESTED, BY THE COMPTROLLER, OR BY THE DIVI-
51 SION OF THE LOTTERY IF THE COMPTROLLER HAS AUTHORIZED THE DIVISION OF
52 THE LOTTERY TO DIRECTLY INVEST SUCH FUNDS, in obligations {by the comp-
S. 60--A 94 A. 160--A
1 troller} as herein provided{, except that} OR IN THE SAME MANNER AND IN
2 SUCH SECURITIES OR OTHER INVESTMENTS AS THE TRUSTEE OR TRUSTEES OF A
3 PUBLIC PENSION FUND ARE AUTHORIZED TO INVEST PURSUANT TO ARTICLE FOUR-A
4 OF THE RETIREMENT AND SOCIAL SECURITY LAW, AND PROVIDED FURTHER THAT
5 such obligations need not mature or be redeemable at the option of the
6 holder within seven years of the date of such investment. Income
7 received from such investments may be used for the payment of prizes
8 awarded and made payable in more than one payment, including prizes
9 awarded and made payable throughout the lifetime of the lottery prize
10 winner.
11 S 2. This act shall take effect immediately.
12 PART U
13 Section 1. Paragraph 30 of subdivision (a) of section 1115 of the tax
14 law, as amended by section 84 of part A of chapter 56 of the laws of
15 1998, is amended to read as follows:
16 (30) {Clothing} DURING THE SEVEN-DAY PERIODS EACH YEAR BEGINNING THE
17 MONDAY IMMEDIATELY PRECEDING THE FIRST SUNDAY OF FEBRUARY AND ENDING
18 SUCH SUNDAY, AND BEGINNING AUGUST TWENTY-FIFTH AND ENDING AUGUST THIR-
19 TY-FIRST, CLOTHING and footwear for which the receipt or consideration
20 given or contracted to be given is less than {one} FIVE hundred {ten}
21 dollars per article of clothing, per pair of shoes or other articles of
22 footwear or per item used or consumed to make or repair such clothing
23 and which becomes a physical component part of such clothing.
24 S 2. Subdivision (g) of section 1109 of the tax law is amended by
25 adding a new paragraph 9 to read as follows:
26 (9) NOTWITHSTANDING THAT THE SALES AND COMPENSATING USE TAXES IMPOSED
27 BY A CITY OF ONE MILLION OR MORE LOCATED IN THE METROPOLITAN COMMUTER
28 TRANSPORTATION DISTRICT EXEMPT CLOTHING AND FOOTWEAR PURSUANT TO THE
29 AUTHORITY OF CLAUSE (VII) OF PARAGRAPH FOUR OF SUBDIVISION (A) OF
30 SECTION TWELVE HUNDRED TEN OF THIS ARTICLE, DURING THE TWO SEVEN-DAY
31 PERIODS DURING WHICH CLOTHING AND FOOTWEAR ARE EXEMPT FROM THE TAXES
32 IMPOSED BY THIS ARTICLE, SUCH CITY SHALL, FOR PURPOSES OF THIS SUBDIVI-
33 SION, BE DEEMED TO HAVE EXEMPTED SUCH CLOTHING AND FOOTWEAR PURSUANT TO
34 THE AUTHORITY OF PARAGRAPH ONE OF SUBDIVISION (A) OF SECTION TWELVE
35 HUNDRED TEN OF THIS CHAPTER AND SUCH CITY AND THE STATE SHALL BE SUBJECT
36 TO THE REIMBURSEMENT AND OTHER PROVISIONS OF THIS SUBDIVISION.
37 S 3. Paragraph 1 of subdivision (a) of section 1210 of the tax law, as
38 amended by chapter 306 of the laws of 2005, subparagraph (i) of para-
39 graph 1 as amended by section 4 of part SS1 of chapter 57 of the laws of
40 2008 and subparagraph (ii) of paragraph 1 as amended by chapter 144 of
41 the laws of 2006, is amended to read as follows:
42 (1) {(i)} Either, all of the taxes described in article twenty-eight
43 of this chapter, at the same uniform rate, as to which taxes all
44 provisions of the local laws, ordinances or resolutions imposing such
45 taxes shall be identical, except as to rate and except as otherwise
46 provided, with the corresponding provisions in such article twenty-
47 eight, including the definition and exemption provisions of such arti-
48 cle, so far as the provisions of such article twenty-eight can be made
49 applicable to the taxes imposed by such city or county and with such
50 limitations and special provisions as are set forth in this article. The
51 taxes authorized under this subdivision may not be imposed by a city or
52 county unless the local law, ordinance or resolution imposes such taxes
53 so as to include all portions and all types of receipts, charges or
S. 60--A 95 A. 160--A
1 rents, subject to state tax under sections eleven hundred five and elev-
2 en hundred ten of this chapter, except as otherwise provided.
3 (I) Any local law, ordinance or resolution enacted by any city of less
4 than one million or by any county or school district, imposing the taxes
5 authorized by this subdivision, shall, notwithstanding any provision of
6 law to the contrary, exclude from the operation of such local taxes all
7 sales of tangible personal property for use or consumption directly and
8 predominantly in the production of tangible personal property, gas,
9 electricity, refrigeration or steam, for sale, by manufacturing, proc-
10 essing, generating, assembly, refining, mining or extracting; and all
11 sales of tangible personal property for use or consumption predominantly
12 either in the production of tangible personal property, for sale, by
13 farming or in a commercial horse boarding operation, or in both; and,
14 unless such city, county or school district elects otherwise, shall omit
15 the provision for credit or refund contained in clause six of subdivi-
16 sion (a) of section eleven hundred nineteen of this chapter.
17 (II) Any local law, ordinance or resolution enacted by any city, coun-
18 ty or school district, imposing the taxes authorized by this subdivi-
19 sion, shall omit the residential solar energy systems equipment
20 exemption provided for in subdivision (ee), the clothing and footwear
21 exemption provided for in paragraph thirty of subdivision (a) and the
22 qualified empire zone enterprise exemptions provided for in subdivision
23 (z) of section eleven hundred fifteen of this chapter, unless such city,
24 county or school district elects otherwise as to either such residential
25 solar energy systems equipment exemption or such clothing and footwear
26 exemption or such qualified empire zone enterprise exemptions{; provided
27 that if such a city having a population of one million or more in which
28 the taxes imposed by section eleven hundred seven of this chapter are in
29 effect enacts the resolution described in subdivision (k) of this
30 section or repeals such resolution or enacts the resolution described in
31 subdivision (l) of this section or repeals such resolution or enacts the
32 resolution described in subdivision (n) of this section or repeals such
33 resolution, such resolution or repeal shall also be deemed to amend any
34 local law, ordinance or resolution enacted by such a city imposing such
35 taxes pursuant to the authority of this subdivision, whether or not such
36 taxes are suspended at the time such city enacts its resolution pursuant
37 to subdivision (k), (l) or (n) of this section or at the time of any
38 such repeal; provided, further, that any such local law, ordinance or
39 resolution and section eleven hundred seven of this chapter, as deemed
40 to be amended in the event a city of one million or more enacts a resol-
41 ution pursuant to the authority of subdivision (k), (l) or (n) of this
42 section, shall be further amended, as provided in section twelve hundred
43 eighteen of this subpart, so that the residential solar energy systems
44 equipment exemption or the clothing and footwear exemption or the quali-
45 fied empire zone enterprise exemptions in any such local law, ordinance
46 or resolution or in such section eleven hundred seven are the same, as
47 the case may be, as the residential solar energy systems equipment
48 exemption provided for in subdivision (ee), the clothing and footwear
49 exemption in paragraph thirty of subdivision (a) or the qualified empire
50 zone enterprise exemptions in subdivision (z) of section eleven hundred
51 fifteen of this chapter.
52 (ii) Notwithstanding any other provision of the law to the contrary,
53 any county, imposing the taxes authorized by this subdivision, having a
54 population of not less than one hundred thirty-nine thousand and not
55 more than one hundred forty thousand, determined in accordance with the
56 two thousand decennial federal census, may by local law, ordinance or
S. 60--A 96 A. 160--A
1 resolution elect to exempt from such local sales and compensating use
2 taxes clothing and footwear, as defined in paragraph fifteen of subdivi-
3 sion (b) of section eleven hundred one of this chapter, for which the
4 receipt or consideration given or contracted to be given is less than
5 one hundred ten dollars per article of clothing, per pair of shoes or
6 other articles of footwear or per item used or consumed to make or
7 repair such clothing and which becomes a physical component part of such
8 clothing. Every such county shall comply with the provisions of subdivi-
9 sions (d) and (e) of this section, including such provisions applicable
10 to providing or repealing the exemption described in paragraph thirty of
11 subdivision (a) of section eleven hundred fifteen of this chapter.}
12 S 4. Subdivision (k) of section 1210 of the tax law is REPEALED.
13 S 5. Notwithstanding any provision of state or local law, ordinance or
14 resolution to the contrary: (a) Every local law, ordinance or resolution
15 or part of it providing for an exemption of clothing and footwear
16 described in paragraph 30 of subdivision (a) of section 1115 of the tax
17 law elected by a county or city (other than a city of one million or
18 more) pursuant to the authority of article 29 of the tax law that is in
19 effect on the day before this act shall have become a law or was elected
20 prior to such date to take effect at a later date is REPEALED.
21 (b) A county or city (other than a city of one million or more) that
22 imposes sales and compensating use taxes pursuant to the authority of
23 paragraph 1 of subdivision (a) of section 1210 of the tax law, acting
24 through its local legislative body, is authorized to adopt a resolution
25 to take effect August 1, 2009, to elect the exemption for clothing and
26 footwear described in paragraph 30 of subdivision (a) of section 1115 of
27 the tax law, as amended by section one of this act. For the resolution
28 to be effective, the county or city must: (i) adopt the resolution in
29 exactly the form prepared by the commissioner of taxation and finance,
30 on or before July 1, 2009; and (ii) mail a certified copy of it by that
31 date to the commissioner of taxation and finance otherwise in accordance
32 with the provisions of subdivision (d) of section 1210 of the tax law;
33 and (iii) the county or city must also comply with the provisions of
34 subdivision (e) of such section 1210. Such resolution shall, if properly
35 adopted pursuant to this section, be deemed to amend the county`s or
36 city`s local law, ordinance or resolution imposing its sales and use
37 taxes to provide this exemption.
38 S 6. This act shall take effect June 1, 2009, and shall apply in
39 accordance with applicable transitional provisions in sections 1106 and
40 1217 of the tax law, provided that a county or city that imposes sales
41 and compensating use taxes pursuant to the authority of subdivision (a)
42 of section 1210 of the tax law (other than a city of one million or
43 more) shall be authorized to adopt a resolution described in section
44 five of this act on or after the date this act becomes a law.
45 PART V
46 Section 1. Subdivision (c) of section 1105 of the tax law is amended
47 by adding two new paragraphs 10 and 11 to read as follows:
48 (10) BEAUTY, BARBERING, HAIR RESTORING, MANICURING, PEDICURING, ELEC-
49 TROLYSIS, MASSAGE SERVICES AND SIMILAR SERVICES, AND EVERY SERVICE SOLD
50 BY WEIGHT CONTROL SALONS, HEALTH SALONS, GYMNASIUMS, TURKISH AND SAUNA
51 BATH AND SIMILAR ESTABLISHMENTS AND EVERY CHARGE FOR THE USE OF THOSE
52 FACILITIES, WHETHER OR NOT ANY TANGIBLE PERSONAL PROPERTY IS TRANSFERRED
53 IN CONJUNCTION THEREWITH; BUT EXCLUDING SERVICES RENDERED BY A PHYSI-
54 CIAN, OSTEOPATH, DENTIST, NURSE, PHYSIOTHERAPIST, CHIROPRACTOR, PODIA-
S. 60--A 97 A. 160--A
1 TRIST, OPTOMETRIST, OPHTHALMIC DISPENSER OR A PERSON PERFORMING SIMILAR
2 SERVICES LICENSED UNDER TITLE EIGHT OF THE EDUCATION LAW, AS AMENDED,
3 AND EXCLUDING THOSE SERVICES WHEN PERFORMED ON PETS AND OTHER ANIMALS. A
4 SALE OF TANGIBLE PERSONAL PROPERTY TO A PERSON FOR USE BY THE PERSON IN
5 PERFORMING A SERVICE SUBJECT TO THE TAX IMPOSED BY THIS PARAGRAPH IS NOT
6 A PURCHASE FOR RESALE.
7 (11) CREDIT RATING AND CREDIT REPORTING SERVICES, INCLUDING, BUT NOT
8 LIMITED TO, THOSE SERVICES PROVIDED BY MERCANTILE AND CONSUMER CREDIT
9 RATING OR REPORTING BUREAUS OR AGENCIES AND CREDIT ADJUSTMENT OR
10 COLLECTION BUREAUS OR AGENCIES, WHETHER RENDERED IN WRITTEN OR ORAL FORM
11 OR IN ANY OTHER MANNER, EXCEPT TO THE EXTENT OTHERWISE TAXABLE UNDER
12 OTHER PROVISIONS OF THIS SECTION. A SALE OF TANGIBLE PERSONAL PROPERTY
13 TO A PERSON FOR USE BY THE PERSON IN PERFORMING A SERVICE SUBJECT TO THE
14 TAX IMPOSED BY THIS PARAGRAPH IS NOT A PURCHASE FOR RESALE. HOWEVER, A
15 REFUND OR CREDIT EQUAL TO THE AMOUNT OF THE SALES OR COMPENSATING USE
16 TAX IMPOSED BY SUBDIVISION (A) OF THIS SECTION OR SECTION ELEVEN HUNDRED
17 TEN OF THIS PART AND PAID ON THE SALE OR USE OF TANGIBLE PERSONAL PROP-
18 ERTY WHICH IS LATER USED BY SUCH PURCHASER IN PERFORMING A SERVICE
19 SUBJECT TO TAX UNDER THIS PARAGRAPH WILL BE ALLOWED THAT PURCHASER
20 AGAINST THE TAX IMPOSED BY THIS PARAGRAPH AND COLLECTED BY THAT PERSON
21 ON THE SALE OF THAT SERVICE IF THAT PROPERTY HAS BECOME A PHYSICAL
22 COMPONENT PART OF THE PROPERTY UPON WHICH THE SERVICE IS PERFORMED OR
23 HAS BEEN TRANSFERRED TO THE PURCHASER OF THE SERVICE IN CONJUNCTION WITH
24 THE PERFORMANCE OF THE SERVICE SUBJECT TO TAX, IN THE MANNER PRESCRIBED
25 BY SUBDIVISION (C) OF SECTION ELEVEN HUNDRED NINETEEN OF THIS ARTICLE.
26 S 2. The closing paragraph of subdivision (c) of section 1105 of the
27 tax law, as amended by chapter 190 of the laws of 1990, is amended to
28 read as follows:
29 Wages, salaries and other compensation paid by an employer to an
30 employee for performing as an employee the services described in {para-
31 graphs (1) through (9) of} this subdivision {(c)} are not receipts
32 subject to the taxes imposed {under such} BY THIS subdivision.
33 S 3. Section 1106 of the tax law is amended by adding a new subdivi-
34 sion (k) to read as follows:
35 (K) THE TAXES IMPOSED BY PARAGRAPHS TEN AND ELEVEN OF SUBDIVISION (C)
36 OF SECTION ELEVEN HUNDRED FIVE OF THIS PART MUST BE PAID WITH RESPECT TO
37 RECEIPTS FROM ALL SALES OF SERVICES ON OR AFTER THE EFFECTIVE DATE OF
38 SUCH TAXES ALTHOUGH RENDERED OR AGREED TO BE RENDERED UNDER A PRIOR
39 CONTRACT. WHERE A SERVICE IS SOLD ON A MONTHLY, QUARTERLY, YEARLY OR
40 OTHER TERM BASIS, THE CHARGE FOR THE SERVICE WILL BE SUBJECT TO THE TAX
41 IMPOSED BY THOSE PARAGRAPHS TO THE EXTENT THAT THE CHARGE IS APPLICABLE
42 TO ANY PERIOD ON OR AFTER THE DATE THE TAX BECOMES EFFECTIVE, AND THE
43 CHARGE SHALL BE APPORTIONED ON THE BASIS OF THE RATIO OF THE NUMBER OF
44 DAYS FALLING WITHIN THE PERIOD TO THE TOTAL NUMBER OF DAYS IN THE FULL
45 TERM OR PERIOD.
46 S 4. Subdivision (a) of section 1110 of the tax law, as amended by
47 section 28 of part Y of chapter 63 of the laws of 2000, is amended to
48 read as follows:
49 (a) Except to the extent that property or services have already been
50 or will be subject to the sales tax under this article, there is hereby
51 imposed on every person a use tax for the use within this state on and
52 after June first, nineteen hundred seventy-one except as otherwise
53 exempted under this article, (A) of any tangible personal property
54 purchased at retail, (B) of any tangible personal property (other than
55 computer software used by the author or other creator) manufactured,
56 processed or assembled by the user, (i) if items of the same kind of
S. 60--A 98 A. 160--A
1 tangible personal property are offered for sale by him in the regular
2 course of business or (ii) if items are used as such or incorporated
3 into a structure, building or real property by a contractor, subcontrac-
4 tor or repairman in erecting structures or buildings, or building on, or
5 otherwise adding to, altering, improving, maintaining, servicing or
6 repairing real property, property or land, as the terms real property,
7 property or land are defined in the real property tax law, if items of
8 the same kind are not offered for sale as such by such contractor,
9 subcontractor or repairman or other user in the regular course of busi-
10 ness, (C) of any of the services described in paragraphs (1), (7) {and},
11 (8) AND (11) of subdivision (c) of section eleven hundred five of this
12 part, (D) of any tangible personal property, however acquired, where not
13 acquired for purposes of resale, upon which any of the services
14 described in paragraphs (2), (3) and (7) of subdivision (c) of section
15 eleven hundred five of this part have been performed, (E) of any tele-
16 phone answering service described in subdivision (b) of section eleven
17 hundred five of this part, (F) of any computer software written or
18 otherwise created by the user if the user offers software of a similar
19 kind for sale as such or as a component part of other property in the
20 regular course of business, (G) of any prepaid telephone calling
21 service, and (H) of any gas or electricity described in subdivision (b)
22 of section eleven hundred five of this part.
23 S 5. Subdivision (d) of section 1115 of the tax law, as amended by
24 chapter 190 of the laws of 1990, is amended to read as follows:
25 (d) Services otherwise taxable under paragraph (1), (2), (3), (7)
26 {or}, (8) OR (11) of subdivision (c) of section eleven hundred five OF
27 THIS ARTICLE shall be exempt from tax under this article if the tangible
28 property upon which the services were performed is delivered to the
29 purchaser outside this state for use outside this state.
30 S 6. Subdivision (z) of section 1115 of the tax law is amended by
31 adding a new paragraph 4 to read as follows:
32 (4) THE EXEMPTIONS PROVIDED IN THIS SUBDIVISION SHALL NOT APPLY TO THE
33 TAX IMPOSED BY PARAGRAPH TEN OF SUBDIVISION (C) OF SECTION ELEVEN
34 HUNDRED FIVE OF THIS ARTICLE OR TO SIMILAR TAXES IMPOSED PURSUANT TO THE
35 AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER.
36 S 7. Subdivision (b) of section 1116 of the tax law is amended by
37 adding a new paragraph 8 to read as follows:
38 (8) SALES OF SERVICES DESCRIBED IN PARAGRAPH TEN OR ELEVEN OF SUBDIVI-
39 SION (C) OF SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE, UNLESS THE
40 PURCHASER IS AN EXEMPT ORGANIZATION.
41 S 8. Subdivision 4 of section 1131 of the tax law, as amended by
42 section 34 of part Y of chapter 63 of the laws of 2000, is amended to
43 read as follows:
44 (4) "Property and services the use of which is subject to tax" shall
45 include: (a) all property sold to a person within the state, whether or
46 not the sale is made within the state, the use of which property is
47 subject to tax under section eleven hundred ten of this article or will
48 become subject to tax when such property is received by or comes into
49 the possession or control of such person within the state; (b) all
50 information services, protective and detective services {and}, interior
51 decorating and design services, AND CREDIT RATING AND REPORTING SERVICES
52 as such services are described in subdivision (c) of section eleven
53 hundred five of this article, rendered to a person within the state,
54 whether or not such services are rendered from or at a location within
55 the state; (c) all services rendered to a person within the state,
56 whether or not such services are performed within the state, upon tangi-
S. 60--A 99 A. 160--A
1 ble personal property the use of which is subject to tax under section
2 eleven hundred ten of this article or will become subject to tax when
3 such property is received by or comes into possession or control of such
4 person within the state; (d) all property sold by a person making sales
5 described in clause (F) of subparagraph (i) of paragraph eight of subdi-
6 vision (b) of section eleven hundred one of this article to a person
7 described in such clause (F) who purchases such property at retail,
8 whether or not the sale is made within the state; (e) all telephone
9 answering service rendered to a person within the state, whether or not
10 such services are performed within the state, the use of which is
11 subject to tax under section eleven hundred ten of this article or will
12 become subject to tax when such service is received by or comes into
13 possession or control of such person within the state; (f) all prepaid
14 telephone calling services sold to a person within the state, whether or
15 not the sale is made within the state, the use of which services are
16 subject to tax under section eleven hundred ten of this article or will
17 become subject to tax when such services are received by or come into
18 the possession or control of such person within the state, and whether
19 or not such services are rendered from or at a location within the
20 state; and (g) all gas or electricity sold to a person within the state,
21 whether or not the sale is made within the state, the use of which is
22 subject to tax under section eleven hundred ten of this article or will
23 become subject to tax when it is received by or comes into the
24 possession or control of such person within the state, and whether or
25 not it is rendered from or at a location within the state.
26 S 9. Paragraphs 2 and 3 of subdivision (a) of section 1212-A of the
27 tax law, paragraph 2 as amended by chapter 190 of the laws of 1990 and
28 paragraph 3 as amended by chapter 525 of the laws of 2008, are amended
29 to read as follows:
30 (2) {a tax, at the same uniform rate, but at a rate not to exceed four
31 per centum, in multiples of one-half of one per centum, on the receipts
32 from every sale of the following services: beauty, barbering, hair
33 restoring, manicuring, pedicuring, electrolysis, massage services and
34 similar services, and every sale of services by weight control salons,
35 health salons, gymnasiums, turkish and sauna bath and similar establish-
36 ments and every charge for the use of such facilities, whether or not
37 any tangible personal property is transferred in conjunction therewith;
38 but excluding services rendered by a physician, osteopath, dentist,
39 nurse, physiotherapist, chiropractor, podiatrist, optometrist, ophthalm-
40 ic dispenser or a person performing similar services licensed under
41 title VIII of the education law, as amended, and excluding such services
42 when performed on pets and other animals.
43 (3) for a period beginning no earlier than January first, nineteen
44 hundred ninety and ending December thirty-first, two thousand eleven,} a
45 tax, at the same uniform rate, but at a rate not to exceed four per
46 centum, in multiples of one-half of one per centum, on the receipts from
47 every sale of any or all of the following services in whole or in part:
48 {credit rating, credit reporting,} credit adjustment and collection
49 services, including, but not limited to, those services provided by
50 mercantile and consumer credit rating or reporting bureaus or agencies
51 and credit adjustment or collection bureaus or agencies, whether
52 rendered in written or oral form or in any other manner, except to the
53 extent otherwise taxable under article twenty-eight of this chapter;
54 notwithstanding the foregoing, collection services shall not include
55 those services performed by a law office or a law and collection office,
56 the maintenance or conduct of which constitutes the practice of law, if
S. 60--A 100 A. 160--A
1 the services are performed by an attorney at law who has been duly
2 licensed and admitted to practice law in this state. The local law
3 imposing the taxes authorized by this paragraph may provide for exclu-
4 sions and exemptions in addition to those provided for in such para-
5 graph.
6 S 10. Paragraphs 1 and 2 of subdivision (b) of section 1212-A of the
7 tax law, as amended by chapter 190 of the laws of 1990, are amended to
8 read as follows:
9 (1) All provisions set forth in article twenty-eight of this chapter
10 applicable to the taxes imposed under section eleven hundred five OF
11 THIS CHAPTER, including the definition and exemption provisions of such
12 article, shall apply in respect to a tax imposed under the authority of
13 subdivision (a) of this section, except as to rate and except as other-
14 wise provided herein. A sale of tangible personal property to a person
15 for use by {him} SUCH PERSON in performing a service subject to the tax
16 imposed under the authority of paragraph two {or three} of subdivision
17 (a) of this section shall not be deemed a purchase for resale for
18 purposes of the taxes imposed by article twenty-eight OF THIS CHAPTER or
19 pursuant to the authority of this article.
20 (2) However, with respect to a tax imposed under the authority of
21 paragraph {three} TWO of subdivision (a) of this section a refund or
22 credit equal to the amount of the sale or compensating use tax imposed
23 by section eleven hundred seven of this chapter and paid on the sale or
24 use of tangible personal property which is later used by such purchaser
25 in performing a service subject to tax under such paragraph shall be
26 allowed such purchaser against the tax imposed pursuant to such para-
27 graph and collected by such person on the sale of such service if such
28 property has become a physical component part of the property upon which
29 the service is performed or has been transferred to the purchaser of the
30 service in conjunction with the performance of the service subject to
31 tax.
32 S 11. Section 11-2002 of the administrative code of the city of New
33 York is REPEALED.
34 S 12. Subchapter 3 of chapter 20 of title 11 of the administrative
35 code of the city of New York is REPEALED.
36 S 13. This act shall take effect June 1, 2009.
37 PART W
38 Section 1. Subdivision b of section 1612 of the tax law, as amended by
39 chapter 140 of the laws of 2008, clauses (D) and (F) of subparagraph
40 (ii) and subparagraph (iii) of paragraph 1 and paragraph 2 as separately
41 amended by chapter 286 of the laws of 2008 and clause (G) of subpara-
42 graph (ii) of paragraph 1 as added and clause (H) of subparagraph (ii)
43 of paragraph 1 as amended by chapter 286 of the laws of 2008, is amended
44 to read as follows:
45 b. 1. Notwithstanding section one hundred twenty-one of the state
46 finance law, on or before the twentieth day of each month, the division
47 shall pay into the state treasury, to the credit of the state lottery
48 fund created by section ninety-two-c of the state finance law, not less
49 than forty-five percent of the total amount for which tickets have been
50 sold for games defined in paragraph four of subdivision a of this
51 section during the preceding month, not less than thirty-five percent of
52 the total amount for which tickets have been sold for games defined in
53 paragraph three of subdivision a of this section during the preceding
54 month, not less than twenty percent of the total amount for which tick-
S. 60--A 101 A. 160--A
1 ets have been sold for games defined in paragraph two of subdivision a
2 of this section during the preceding month, provided however that for
3 games with a prize payout of seventy-five percent of the total amount
4 for which tickets have been sold, the division shall pay not less than
5 ten percent of sales into the state treasury and not less than twenty-
6 five percent of the total amount for which tickets have been sold for
7 games defined in paragraph one of subdivision a of this section during
8 the preceding month; and the balance of the total revenue after payout
9 for prizes for games known as "video lottery gaming," (i) less ten
10 percent of the total revenue wagered after payout for prizes to be
11 retained by the division for operation, administration, and procurement
12 purposes; (ii) less a vendor`s fee the amount of which is to be paid for
13 serving as a lottery agent to the track operator of a vendor track:
14 (A) having fewer than one thousand one hundred video gaming machines,
15 at a rate of thirty-six percent for the first fifty million dollars
16 annually, twenty-nine percent for the next hundred million dollars annu-
17 ally, and twenty-six percent thereafter of the total revenue wagered at
18 the vendor track after payout for prizes pursuant to this chapter;
19 (B) having one thousand one hundred or more video gaming machines, at
20 a rate of thirty-two percent of the total revenue wagered at the vendor
21 track after payout for prizes pursuant to this chapter, except for such
22 facility located in the county of Westchester, in which case the rate
23 shall be thirty-four percent of the total revenue wagered at the vendor
24 track after payout for prizes pursuant to this chapter, for a period of
25 twenty-four months effective beginning April first, two thousand eight;
26 provided, however, that in the event that the vendor track located in
27 Westchester county completes a successful restructuring prior to March
28 thirty-first, two thousand ten, the vendor fee will be reduced to thir-
29 ty-two percent ninety days following the completion of the successful
30 restructuring. A successful restructuring is defined as a restructuring
31 of the existing debt obligations of such vendor track located in West-
32 chester county that meets the following two conditions:
33 (i) it requires no more than twenty million dollars of additional
34 equity invested in such track; and
35 (ii) results in average net interest costs of less than nine percent.
36 Notwithstanding the foregoing, the vendor fee at such track will
37 become thirty-one percent effective April first, two thousand ten and
38 remain at that level for a period equal to two times the period of time
39 (measured in days) that the vendor fee was thirty-four percent or until
40 March thirty-first, two thousand twelve, whichever is later. Notwith-
41 standing the foregoing, not later than April first, two thousand twelve,
42 the vendor fee shall become thirty-two percent and remain at that level
43 thereafter; and except for Aqueduct racetrack, in which case the vendor
44 fee shall be thirty-eight percent of the total revenue wagered at the
45 vendor track after payout for prizes pursuant to this chapter;
46 (C) notwithstanding clauses (A) and (B) of this subparagraph, when the
47 vendor track is located in an area with a population of less than one
48 million within the forty mile radius around such track, at a rate of
49 forty percent for the first fifty million dollars annually, twenty-nine
50 percent for the next hundred million dollars annually, and twenty-six
51 percent thereafter of the total revenue wagered at the vendor track
52 after payout for prizes pursuant to this chapter;
53 (D) notwithstanding clauses (A), (B) and (C) of this subparagraph,
54 when the vendor track is located within fifteen miles of a Native Ameri-
55 can class III gaming facility {or, for a period of five years effective
56 beginning April first, two thousand eight when the vendor track is
S. 60--A 102 A. 160--A
1 located within Sullivan county and within sixty miles from any gaming
2 facility in a contiguous state,} at a rate of forty-two percent of the
3 total revenue wagered at the vendor track after payout for prizes pursu-
4 ant to this chapter {unless such vendor track relocates outside the
5 specified geographic area sooner, in which case such rate shall be as
6 for all other tracks in the applicable clause of this subparagraph};
7 {(D) notwithstanding clauses (A), (B) and (C) of this subparagraph,
8 when the vendor track is within fifteen miles of a Native American
9 gaming facility, at a rate of forty-two percent of the total revenue
10 wagered at the vendor track after payout for prizes pursuant to this
11 chapter;}
12 (E) notwithstanding clauses (A), (B), (C) and (D) of this subpara-
13 graph, when a Native American class III gaming facility is established,
14 after the effective date of this subparagraph, within fifteen miles of
15 the vendor track, at a rate of forty-two percent of the total revenue
16 wagered after payout for prizes pursuant to this chapter;
17 {(F) notwithstanding clauses (A), (B), (C), (D) and (E) of this
18 subparagraph, the track operator of a vendor track shall be eligible for
19 a vendor`s capital award of up to four percent of the total revenue
20 wagered at the vendor track after payout for prizes pursuant to this
21 chapter, which shall be used exclusively for capital project investments
22 to improve the facilities of the vendor track which promote or encourage
23 increased attendance at the video lottery gaming facility including, but
24 not limited to hotels, other lodging facilities, entertainment facili-
25 ties, retail facilities, dining facilities, events arenas, parking
26 garages and other improvements that enhance facility amenities; provided
27 that such capital investments shall be approved by the division, in
28 consultation with the state racing and wagering board, and that such
29 vendor track demonstrates that such capital expenditures will increase
30 patronage at such vendor track`s facilities and increase the amount of
31 revenue generated to support state education programs. The annual amount
32 of such vendor`s capital awards that a vendor track shall be eligible to
33 receive shall be limited to two million five hundred thousand dollars,
34 except for Aqueduct racetrack, for which there shall be no vendor`s
35 capital awards. Except for tracks having less than one thousand one
36 hundred video gaming machines, each track operator shall be required to
37 co-invest an amount of capital expenditure equal to its cumulative
38 vendor`s capital awards. For all tracks, except for Aqueduct racetrack,
39 the amount of any vendor`s capital award that is not used during any one
40 year period may be carried over into subsequent years ending before
41 April first, two thousand thirteen. Any amount attributable to a capital
42 expenditure approved prior to April first, two thousand thirteen and
43 completed before April first, two thousand fifteen shall be eligible to
44 receive the vendor`s capital award. In the event that a vendor track`s
45 capital expenditures, approved by the division prior to April first, two
46 thousand thirteen and completed prior to April first, two thousand
47 fifteen, exceed the vendor track`s cumulative capital award during the
48 five year period ending April first, two thousand thirteen, the vendor
49 shall continue to receive the capital award after April first, two thou-
50 sand thirteen until such approved capital expenditures are paid to the
51 vendor track subject to any required co-investment. In no event shall
52 such track facility located in Sullivan county and within sixty miles
53 from any gaming facility in a contiguous state be eligible for a
54 vendor`s capital award under this section, unless it shall have moved
55 from such location or the five year period commencing on April first,
56 two thousand eight has expired, whichever comes first. Any operator of a
S. 60--A 103 A. 160--A
1 vendor track which has received a vendor`s capital award, choosing to
2 divest the capital improvement toward which the award was applied, prior
3 to reaching the forty year straightline depreciation value of the
4 improvement, shall reimburse the state in amounts equal to the total of
5 any such awards. Any capital award not approved for a capital expendi-
6 ture at a video lottery gaming facility by April first, two thousand
7 thirteen shall be deposited in the state lottery fund for education aid;
8 and}
9 (E-1) FOR PURPOSES OF THIS SUBDIVISION, THE TERM "CLASS III GAMING"
10 SHALL HAVE THE MEANING DEFINED IN 25 U.S.C. S 2703(8).
11 (F) notwithstanding clauses (A), (B), (C), (D) and (E) of this subpar-
12 agraph, when a vendor track, is located in Sullivan county and within
13 sixty miles from any gaming facility in a contiguous state such vendor
14 fee shall, for a period of five years commencing April first, two thou-
15 sand eight, be at a rate of forty-two percent of the total revenue
16 wagered at the vendor track after payout for prizes pursuant to this
17 chapter, after which time such rate shall be as for all tracks in clause
18 (C) of this subparagraph.
19 {(G) For purposes of this subdivision, the term "class III gaming"
20 shall have the meaning defined in 25 U.S.C. S 2703(8).}
21 (G) notwithstanding any other provisions of this section, when a relo-
22 cated vendor track at which a qualified capital investment has been made
23 and no fewer than two thousand full-time, permanent employees have been
24 newly hired, is located in Sullivan county and is within sixty miles
25 from any gaming facility in a contiguous state, then for a period of
26 forty years the division shall pay into the state treasury, to the cred-
27 it of the state lottery fund created by section ninety-two-c of the
28 state finance law the greater of (i) twenty-five percent of total reven-
29 ue after payout for prizes for "video lottery games" or (ii) for the
30 first eight years of operation thirty-eight million dollars, and begin-
31 ning in the ninth year of operation such amount shall increase annually
32 by the lesser of the increase in the consumer price index or two percent
33 plus the division shall retain an amount equal to all actual expenses
34 related to operations, administration and procurement of the video
35 lottery terminal operation at the relocated vendor track, provided,
36 however, such amount retained by the division shall not exceed seven
37 percent of total revenue after payout of prizes. In addition, in the
38 event the division makes a payment pursuant to subclause (i) of this
39 clause, the division shall pay to the credit of the state lottery fund
40 created by section ninety-two-c of the state finance law 11.11 percent
41 of the amount by which total revenue after payout for prizes exceeds two
42 hundred fifteen million dollars, but in no event shall such payment
43 exceed five million dollars.
44 The balance shall be paid as a vendor`s fee to the track operator of
45 the relocated vendor track for serving as a lottery agent under this
46 chapter.
47 Provided, however, that in the case of a relocated vendor track with a
48 qualified capital investment, if at any time after July first, two thou-
49 sand ten the vendor track experiences an employment shortfall, then the
50 recapture amount shall apply, for only such period as the shortfall
51 exists.
52 For the purposes of this section "qualified capital investment" shall
53 mean an investment of a minimum of one billion dollars as reflected by
54 audited financial statements of which not less than three hundred
55 million dollars shall be comprised of equity and/or mezzanine financing
56 as an initial investment in a county where twelve percent of the popu-
S. 60--A 104 A. 160--A
1 lation is below the federal poverty level as measured by the most recent
2 Bureau of Census Statistics prior to the qualified capital investment
3 commencing that results in the construction, development or improvement
4 of at least one eighteen hole golf course, and the construction and
5 issuance of certificates of occupancy for hotels, lodging, convention
6 centers, spas, dining, retail and entertainment venues, parking garages
7 and other capital improvements at or adjacent to the licensed video
8 gaming facility or licensed vendor track which promote or encourage
9 increased attendance at such facilities.
10 For the purposes of this section, "full-time, permanent employee"
11 shall mean an employee who has worked at the vendor track or related and
12 adjacent facilities for a minimum of thirty-five hours per week for not
13 less than four consecutive weeks and who is entitled to receive the
14 usual and customary fringe benefits extended to other employees with
15 comparable rank and duties; or two part-time employees who have worked
16 at the vendor track or related and adjacent facilities for a combined
17 minimum of thirty-five hours per week for not less than four consecutive
18 weeks and who are entitled to receive the usual and customary fringe
19 benefits extended to other employees with comparable rank and duties.
20 For the purpose of this section "employment goal" shall mean two thou-
21 sand full-time permanent employees.
22 For the purpose of this section "employment shortfall" shall mean a
23 level of employment that falls below the employment goal, as certified
24 annually by vendor`s certified accountants and the chairman of the
25 empire state development corporation.
26 For the purposes of this section "recapture amount" shall mean the
27 difference between the amount of the vendor`s fee paid to a vendor track
28 with a qualified capital investment, and the vendor fee otherwise paya-
29 ble to a vendor track pursuant to clause (F) of this subparagraph, that
30 is reimbursable by the vendor track to the division for payment into the
31 state treasury, to the credit of the state lottery fund created by
32 section ninety-two-c of the state finance law, due to an employment
33 shortfall pursuant to the following schedule only for the period of the
34 employment shortfall:
35 (i) sixty-six percent of the recapture amount if the employment short-
36 fall is greater than fifty percent of the employment goal;
37 (ii) sixty percent of the recapture amount if the employment shortfall
38 is greater than forty percent of the employment goal;
39 (iii) forty-five percent of the recapture amount if the employment
40 shortfall is greater than thirty percent of the employment goal;
41 (iv) twenty percent of the recapture amount if the employment short-
42 fall is greater than twenty percent of the employment goal;
43 (v) ten percent of the recapture amount if the employment shortfall is
44 greater than ten percent of the employment goal.
45 (H) notwithstanding clauses (A), (B), (C), (D), (E), (F) and (G) of
46 this subparagraph, the track operator of a vendor track shall be eligi-
47 ble for a vendor`s capital award of up to four percent of the total
48 revenue wagered at the vendor track after payout for prizes pursuant to
49 this chapter, which shall be used exclusively for capital project
50 investments to improve the facilities of the vendor track which promote
51 or encourage increased attendance at the video lottery gaming facility
52 including, but not limited to hotels, other lodging facilities, enter-
53 tainment facilities, retail facilities, dining facilities, events
54 arenas, parking garages and other improvements that enhance facility
55 amenities; provided that such capital investments shall be approved by
56 the division, in consultation with the state racing and wagering board,
S. 60--A 105 A. 160--A
1 and that such vendor track demonstrates that such capital expenditures
2 will increase patronage at such vendor track`s facilities and increase
3 the amount of revenue generated to support state education programs. The
4 annual amount of such vendor`s capital awards that a vendor track shall
5 be eligible to receive shall be limited to two million five hundred
6 thousand dollars, except for Aqueduct racetrack, for which there shall
7 be no vendor`s capital awards. Except for tracks having less than one
8 thousand one hundred video gaming machines, each track operator shall be
9 required to co-invest an amount of capital expenditure equal to its
10 cumulative vendor`s capital award. For all tracks, except for Aqueduct
11 racetrack, the amount of any vendor`s capital award that is not used
12 during any one year period may be carried over into subsequent years
13 ending before April first, two thousand thirteen. Any amount attribut-
14 able to a capital expenditure approved prior to April first, two thou-
15 sand thirteen and completed before April first, two thousand fifteen
16 shall be eligible to receive the vendor`s capital award. IN THE EVENT
17 THAT A VENDOR TRACK`S CAPITAL EXPENDITURES, APPROVED BY THE DIVISION
18 PRIOR TO APRIL FIRST, TWO THOUSAND THIRTEEN AND COMPLETED PRIOR TO APRIL
19 FIRST, TWO THOUSAND FIFTEEN, EXCEED THE VENDOR TRACK`S CUMULATIVE CAPI-
20 TAL AWARD DURING THE FIVE YEAR PERIOD ENDING APRIL FIRST, TWO THOUSAND
21 THIRTEEN, THE VENDOR SHALL CONTINUE TO RECEIVE THE CAPITAL AWARD AFTER
22 APRIL FIRST, TWO THOUSAND THIRTEEN UNTIL SUCH APPROVED CAPITAL EXPENDI-
23 TURES ARE PAID TO THE VENDOR TRACK SUBJECT TO ANY REQUIRED CO-INVEST-
24 MENT. In no event shall any vendor track that receives a vendor fee
25 pursuant to clause (F) or (G) of this {paragraph} SUBPARAGRAPH be eligi-
26 ble for a vendor`s capital award under this section. Any operator of a
27 vendor track which has received a vendor`s capital award, choosing to
28 divest the capital improvement toward which the award was applied, prior
29 to {reaching the forty year straightline depreciation value of the
30 improvement} THE FULL DEPRECIATION OF THE CAPITAL IMPROVEMENT IN ACCORD-
31 ANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, shall reimburse the
32 state in amounts equal to the total of any such awards. ANY CAPITAL
33 AWARD NOT APPROVED FOR A CAPITAL EXPENDITURE AT A VIDEO LOTTERY GAMING
34 FACILITY BY APRIL FIRST, TWO THOUSAND THIRTEEN SHALL BE DEPOSITED INTO
35 THE STATE LOTTERY FUND FOR EDUCATION AID; and
36 (iii) less an additional vendor`s marketing allowance at a rate of ten
37 percent for the first one hundred million dollars annually and eight
38 percent thereafter of the total revenue wagered at the vendor track
39 after payout for prizes to be used by the vendor track for the marketing
40 and promotion and associated costs of its video lottery gaming oper-
41 ations and pari-mutuel horse racing operations, as long as any such
42 costs associated with pari-mutuel horse racing operations simultaneously
43 encourage increased attendance at such vendor`s video lottery gaming
44 facilities, consistent with the customary manner of marketing comparable
45 operations in the industry and subject to the overall supervision of the
46 division; provided, however, that the additional vendor`s marketing
47 allowance shall not exceed eight percent in any year for any operator of
48 a racetrack located in the county of Westchester or Queens; provided,
49 however, a vendor track that receives a vendor fee pursuant to clause
50 (G) of {this} subparagraph (II) OF THIS PARAGRAPH shall not receive the
51 additional vendor`s marketing allowance. In establishing the vendor fee,
52 the division shall ensure the maximum lottery support for education
53 while also ensuring the effective implementation of section sixteen
54 hundred seventeen-a of this article through the provision of reasonable
55 reimbursements and compensation to vendor tracks for participation in
56 such program. Within twenty days after any award of lottery prizes, the
S. 60--A 106 A. 160--A
1 division shall pay into the state treasury, to the credit of the state
2 lottery fund, the balance of all moneys received from the sale of all
3 tickets for the lottery in which such prizes were awarded remaining
4 after provision for the payment of prizes as herein provided. Any reven-
5 ues derived from the sale of advertising on lottery tickets shall be
6 deposited in the state lottery fund.
7 2. As consideration for the operation of a video lottery gaming facil-
8 ity, the division, shall cause the investment in the racing industry of
9 a portion of the vendor fee received pursuant to paragraph one of this
10 subdivision in the manner set forth in this subdivision. With the excep-
11 tion of Aqueduct racetrack, each such track shall dedicate a portion of
12 its vendor fees, received pursuant to clause (A), (B), (C), (D), (E),
13 (F), or (G) of subparagraph (ii) of paragraph one of this subdivision,
14 solely for the purpose of enhancing purses at such track, in an amount
15 equal to eight and three-quarters percent of the total revenue wagered
16 at the vendor track after pay out for prizes. In addition, WITH THE
17 EXCEPTION OF AQUEDUCT RACETRACK, one and one-quarter percent of total
18 revenue wagered at the vendor track after pay out for prizes, received
19 pursuant to clause (A), (B), (C), (D), (E), (F), or (G) of subparagraph
20 (ii) of paragraph one of this subdivision, shall be distributed to the
21 appropriate breeding fund for the manner of racing conducted by such
22 track.
23 Provided, further, that nothing in this paragraph shall prevent each
24 track from entering into an agreement, not to exceed five years, with
25 the organization authorized to represent its horsemen to increase or
26 decrease the portion of its vendor fee dedicated to enhancing purses at
27 such track during the years of participation by such track, or to race
28 fewer dates than required herein.
29 3. Nothing in paragraph two of this subdivision shall affect any
30 agreement in effect on or before the effective date of this paragraph.
31 S 2. Subdivisions a and b of section 1617-a of the tax law, as amended
32 by section 2 of part Z3 of chapter 62 of the laws of 2003 and paragraph
33 3 of subdivision a as amended by chapter 18 of the laws of 2008, are
34 amended to read as follows:
35 a. The division of the lottery is hereby authorized to license, pursu-
36 ant to rules and regulations to be promulgated by the division of the
37 lottery, the operation of video lottery gaming at Aqueduct, Monticello,
38 Yonkers, Finger Lakes, and Vernon Downs racetracks, or at any other
39 racetrack licensed pursuant to article three of the racing, pari-mutuel
40 wagering and breeding law that are located in a county or counties in
41 which video lottery gaming has been authorized pursuant to local law,
42 excluding the licensed racetrack commonly referred to in article three
43 of the racing, pari-mutuel wagering and breeding law as the "New York
44 state exposition" held in Onondaga county and the racetracks of the
45 non-profit racing association known as Belmont Park racetrack and the
46 Saratoga thoroughbred racetrack. Such rules and regulations shall
47 provide, as a condition of licensure, that racetracks to be licensed are
48 certified to be in compliance with all state and local fire and safety
49 codes, that the division is afforded adequate space, infrastructure, and
50 amenities consistent with industry standards for such video gaming oper-
51 ations as found at racetracks in other states, that racetrack employees
52 involved in the operation of video lottery gaming pursuant to this
53 section are licensed by the racing and wagering board, and such other
54 terms and conditions of licensure as the division may establish.
55 Notwithstanding any inconsistent provision of law, video lottery gaming
56 at a racetrack pursuant to this section shall be deemed an approved
S. 60--A 107 A. 160--A
1 activity for such racetrack under the relevant city, county, town, or
2 village land use or zoning ordinances, rules, or regulations. No {race-
3 track} ENTITY LICENSED BY THE DIVISION operating video lottery gaming
4 pursuant to this section may house such gaming activity in a structure
5 deemed or approved by the division as "temporary" for a duration of
6 longer than eighteen-months. NOTHING IN THIS SECTION SHALL PROHIBIT THE
7 DIVISION FROM LICENSING AN ENTITY TO OPERATE VIDEO LOTTERY GAMING AT AN
8 EXISTING RACETRACK AS AUTHORIZED IN THIS SUBDIVISION WHETHER OR NOT A
9 DIFFERENT ENTITY IS LICENSED TO CONDUCT HORSE RACING AND PARI-MUTUEL
10 WAGERING AT SUCH RACETRACK PURSUANT TO ARTICLE TWO OR THREE OF THE
11 RACING, PARI-MUTUEL WAGERING AND BREEDING LAW.
12 The division, in consultation with the racing and wagering board,
13 shall establish standards for approval of the temporary and permanent
14 physical layout and construction of any facility or building devoted to
15 a video lottery gaming operation. In reviewing such application for the
16 construction or reconstruction of facilities related or devoted to the
17 operation or housing of video lottery gaming operations, the division,
18 in consultation with the racing and wagering board, shall ensure that
19 such facility:
20 (1) possesses superior consumer amenities and conveniences to encour-
21 age and attract the patronage of tourists and other visitors from across
22 the region, state, and nation.
23 (2) has adequate motor vehicle parking facilities to satisfy patron
24 requirements.
25 (3) has a physical layout and location that facilitates access to and
26 from the horse racing track portion of such facility to encourage patro-
27 nage of live horse racing events that are conducted at such track.
28 b. {Video} THE HOURS OF OPERATION OF VIDEO lottery gaming shall only
29 be permitted {for no more than sixteen consecutive hours per day and on
30 no day shall such operation be conducted past 2:00 a.m} AS PRESCRIBED BY
31 THE DIVISION OF THE LOTTERY.
32 S 3. Section 1617-a of the tax law is amended by adding a new subdivi-
33 sion e to read as follows:
34 E. THE DIVISION SHALL NOT APPROVE THE CONSTRUCTION OR ALTERATION OF
35 ANY FACILITY OR BUILDING DEVOTED TO THE OPERATION OR HOUSING OF VIDEO
36 LOTTERY GAMING UNTIL THE PERSON OR ENTITY SELECTED TO OPERATE SUCH VIDEO
37 LOTTERY GAMING SHALL HAVE SUBMITTED TO THE DIVISION A STATEMENT OF THE
38 LOCATION OF THE PROPOSED FACILITY OR BUILDING, TOGETHER WITH A PLAN OF
39 SUCH RACETRACK, AND PLANS OF ALL EXISTING BUILDINGS, SEATING STANDS AND
40 OTHER STRUCTURES ON THE GROUNDS OF SUCH RACETRACK, IN SUCH FORM AS THE
41 DIVISION MAY PRESCRIBE, AND SUCH PLANS SHALL HAVE BEEN APPROVED BY THE
42 DIVISION. THE DIVISION, AT THE EXPENSE OF THE APPLICANT, MAY ORDER SUCH
43 ENGINEERING EXAMINATION THEREOF AS THE DIVISION MAY DEEM NECESSARY.
44 SUCH CONSTRUCTION OR ALTERATION MAY BE MADE ONLY WITH THE APPROVAL OF
45 THE DIVISION AND AFTER EXAMINATION AND INSPECTION OF THE PLANS THEREOF
46 AND THE ISSUANCE OF A PERMIT THEREFOR BY THE DIVISION.
47 S 4. Section 4 of part C of chapter 383 of the laws of 2001, amending
48 the tax law and other laws relating to authorizing the division of the
49 lottery to conduct a pilot program involving the operation of video
50 lottery terminals at certain racetracks, as amended by chapter 140 of
51 the laws of 2008, is amended to read as follows:
52 S 4. This act shall take effect immediately{; provided, however, that
53 the provisions of this act shall expire and be deemed repealed December
54 31, 2033}.
55 S 5. Section 4 of part C of chapter 383 of the laws of 2001, amending
56 the tax law and other laws relating to authorizing the division of the
S. 60--A 108 A. 160--A
1 lottery to conduct a pilot program involving the operation of video
2 lottery terminals at certain racetracks, as amended by chapter 286 of
3 the laws of 2008, is amended to read as follows:
4 S 4. This act shall take effect immediately{; provided, however, that
5 the provisions of this act shall expire and be deemed repealed December
6 31, 2050}.
7 S 6. Subdivision a of section 1617-a of the tax law, as amended by
8 chapter 140 of the laws of 2008, is REPEALED.
9 S 7. Subdivision a of section 1617-a of the tax law, as amended by
10 chapter 286 of the laws of 2008, is REPEALED.
11 S 8. This act shall take effect immediately and shall be deemed to
12 have been in full force and effect on and after April 1, 2008.
13 PART X
14 Section 1. Section 420 of the tax law is amended by adding a new
15 subdivision 17 to read as follows:
16 17. "FLAVORED MALT BEVERAGES" MEANS ALCOHOLIC PRODUCTS MANUFACTURED
17 FROM MALT THAT ALSO CONTAIN LIQUOR AND THAT CONTAIN MORE THAN ONE-HALF
18 OF ONE PERCENT BUT NOT MORE THAN TWENTY-FOUR PERCENT OF ALCOHOL BY
19 VOLUME.
20 S 2. Subdivision 3 of section 420 of the tax law, as amended by chap-
21 ter 94 of the laws of 1934, is amended to read as follows:
22 3. "Alcoholic beverages" mean and include beers, FLAVORED MALT BEVER-
23 AGES, wines or liquors.
24 S 3. Subdivision 5 of section 420 of the tax law, as amended by chap-
25 ter 237 of the laws of 1956, is amended to read as follows:
26 5. "Beers" mean and include all alcoholic beer, lager beer, ale,
27 porter, and stout, and all other fermented beverages of any name or
28 description manufactured from malt, wholly or in part, or from any
29 substitute therefor containing one-half of one per centum, or more, of
30 alcohol by volume, BUT NOT INCLUDING ANY FLAVORED MALT BEVERAGES.
31 S 4. Subdivision 7 of section 420 of the tax law, as amended by chap-
32 ter 80 of the laws of 1935, is amended to read as follows:
33 7. "Liquors" mean and include any and all distilled or rectified spir-
34 its, alcohol, brandy, cordial (whether the base therefor be wine or
35 liquor), whiskey, rum, gin and all other distilled beverages containing
36 alcohol, including all dilutions and mixtures of one or more of the
37 foregoing, and also mean and include any alcoholic liquids which would
38 be wines OR FLAVORED MALT BEVERAGES if the alcoholic content thereof
39 were not more than twenty-four per centum by volume.
40 S 5. Subdivision 14 of section 420 of the tax law, as amended by chap-
41 ter 508 of the laws of 1993, is amended to read as follows:
42 14. "Noncommercial importer" means a person other than a distributor
43 who imports or causes to be imported into this state beers, FLAVORED
44 MALT BEVERAGES, or wines, except that such person shall not be a noncom-
45 mercial importer where such person imports or causes to be imported into
46 this state such alcoholic beverages in the quantities and under the
47 conditions provided by subdivision four of section four hundred twenty-
48 four OF THIS ARTICLE. Such term is inapplicable with respect to liquors.
49 S 6. Subdivision 1 of section 424 of the tax law is amended by adding
50 a new paragraph (e-1) to read as follows:
51 (E-1) TWO DOLLARS AND FIFTY-FOUR CENTS PER GALLON UPON FLAVORED MALT
52 BEVERAGES;
S. 60--A 109 A. 160--A
1 S 7. The opening paragraph of paragraph (g) of subdivision 1 of
2 section 424 of the tax law, as amended by chapter 508 of the laws of
3 1993, is amended to read as follows:
4 For purposes of this chapter, it is presumed that liquors are
5 possessed for the purpose of sale in this state if the quantity of
6 liquors possessed in this state, imported or caused to be imported into
7 this state or produced, distilled, manufactured, compounded, mixed or
8 fermented in this state exceeds ninety liters. Such presumption may be
9 rebutted by the introduction of substantial evidence to the contrary. In
10 any case where the quantity of alcoholic beverages taxable pursuant to
11 this article is a fractional part of one liter (or one gallon in the
12 case of beers, FLAVORED MALT BEVERAGES, AND WINES) or an amount greater
13 than a whole multiple of liters (or gallons in the case of beers,
14 FLAVORED MALT BEVERAGES AND WINES), the amount of tax levied and imposed
15 on such fractional part of one liter (or one gallon in the case of
16 beers, FLAVORED MALT BEVERAGES, AND WINES), or fractional part of a
17 liter (or gallon) in excess of a whole multiple of liters or gallons
18 shall be such fractional part of the rate imposed by paragraphs (a)
19 through (f) OF THIS SUBDIVISION.
20 S 8. Section 425 of the tax law, as amended by chapter 508 of the laws
21 of 1993, is amended to read as follows:
22 S 425. Special provision as to imposition of taxes on certain alcohol-
23 ic beverages. If a person shall receive any alcoholic beverages from the
24 distributor with respect thereto, under such circumstances so as to
25 preclude the collection of the taxes under this article, because this
26 state was without power to impose such taxes under this article against
27 such distributor by reason of the constitution or the law of the United
28 States enacted pursuant thereto or the constitution or laws of this
29 state, and such person shall thereafter sell or use any such alcoholic
30 beverages in such manner and under such circumstances as may subject the
31 same to the taxing power of this state with respect to any sale or use
32 thereof, such person shall be liable for the tax imposed by section four
33 hundred twenty-four OF THIS ARTICLE with respect to such sale or use,
34 and shall make the same reports and returns, pay the same taxes and be
35 subject to the other applicable provisions of this article relating to
36 distributors, except that with respect to beers, FLAVORED MALT BEVERAG-
37 ES, and wines such a person shall not be subject to the provisions of
38 sections four hundred twenty-one and four hundred twenty-two of this
39 article if such person does not offer such alcoholic beverages for sale
40 or use such alcoholic beverages for any commercial purpose. Provided,
41 further, that if the taxing power of this state does not extend to the
42 imposition of such taxes on, and the requirement of payment of such
43 taxes by, such person selling or using such beverages, then such person
44 shall be required to collect such taxes from its purchaser on the sale
45 of such beverages and to pay over such taxes to the commissioner. In
46 such event, the same reports and returns relating to distributors, along
47 with remittance, shall be required by such person and all the other
48 provisions of this article relating to distributors shall apply. If such
49 taxes are not so collected, then such purchaser shall, along with such
50 person, be liable for such taxes.
51 S 9. Section 425-a of the tax law, as added by chapter 508 of the laws
52 of 1993, is amended to read as follows:
53 S 425-a. Presumption of taxability. For the purpose of the proper
54 administration of the taxes imposed by this article and to prevent
55 evasion thereof, it shall be presumed with respect to this chapter that
56 all alcoholic beverages possessed or found in this state are subject to
S. 60--A 110 A. 160--A
1 the taxes imposed by this article until the contrary is established by
2 substantial evidence. Except with respect to a purchase at retail of
3 beers, FLAVORED MALT BEVERAGES, or wines and a purchase at retail of
4 ninety liters or less of liquors, no person shall purchase alcoholic
5 beverages in this state unless the taxes imposed by this article with
6 respect to such beverages have been assumed by a distributor registered
7 under this article or paid by such distributor pursuant to and in
8 accordance with the manner provided herein and evidenced in accordance
9 with the manner provided herein. In the case of liquors, such taxes
10 shall be assumed by a distributor in accordance with the invoice
11 required, and the certification of tax payment included therein, under
12 section four hundred twenty-seven of this article; in the case of other
13 alcoholic beverages, the taxes shall be assumed by such distributor
14 pursuant to and in accordance with the rules or regulations of the
15 department.
16 S 10. Section 426 of the tax law, as amended by chapter 891 of the
17 laws of 1986, is amended to read as follows:
18 S 426. Records to be kept by brand owners, distributors, owners and
19 others. Every brand owner, distributor, owner or other person shall
20 keep a complete and accurate record of all purchases and sales or other
21 dispositions of alcoholic beverages, and a complete and accurate record
22 of the number of gallons of beers, FLAVORED MALT BEVERAGES, AND WINES
23 produced, manufactured, brewed or fermented and liters of all other
24 alcoholic beverages produced, distilled, manufactured, brewed,
25 compounded, mixed or fermented. Such records shall be in such form and
26 contain such other information as the {tax commission} COMMISSIONER
27 shall prescribe. {Said commission} THE COMMISSIONER, by rule or regu-
28 lation, also may require the delivery of statements to purchasers of
29 alcoholic beverages, and prescribe the matters to be contained therein.
30 Such records and statements, unless required by the {tax commission}
31 COMMISSIONER to be preserved for a longer period, shall be preserved for
32 a period of {one year} THREE YEARS and shall be offered for inspection
33 at any time upon oral or written demand by the commissioner {of taxation
34 and finance} or his OR HER duly authorized agents, and every such
35 distributor, brand owner, owner or other person shall make such reports
36 to the department {of taxation and finance} as may be required by the
37 {tax commission} COMMISSIONER. Nothing in this section contained shall
38 be construed to require the keeping of a record of the purchase or
39 disposition of alcoholic beverages by a consumer thereof, except by a
40 person who uses the same for commercial purposes, or of the sale of
41 alcoholic beverages at retail.
42 S 11. Section 429 of the tax law, as amended by chapter 433 of the
43 laws of 1978, is amended to read as follows:
44 S 429. Payment of tax; returns. 1. Every distributor, noncommercial
45 importer or other person shall, on or before the twentieth day of each
46 month, file with the department {of taxation and finance} a return, on
47 forms to be prescribed by the {tax commission} COMMISSIONER and
48 furnished by such department, stating separately the number of gallons,
49 or lesser quantity, of beers, FLAVORED MALT BEVERAGES, AND WINES, and
50 the number of liters, or lesser quantity, of {wines and} liquors sold or
51 used by such distributor, noncommercial importer or other person in this
52 state during the preceding calendar month, except that the {tax commis-
53 sion} COMMISSIONER may, if {it} HE OR SHE deems it necessary in order to
54 insure the payment of the tax imposed by this article, require returns
55 to be made at such times and covering such periods as {it} HE OR SHE may
56 deem necessary. Such return shall contain such further information as
S. 60--A 111 A. 160--A
1 the {tax commission} COMMISSIONER shall require. The fact that the name
2 of the distributor, noncommercial importer or other person is signed to
3 a filed return shall be prima facie evidence for all purposes that the
4 return was actually signed by such distributor, noncommercial importer
5 or other person.
6 2. Each such distributor, noncommercial importer or other person shall
7 pay to such department with the filing of such return, the tax imposed
8 by this article, on each gallon, or lesser quantity, of beers, FLAVORED
9 MALT BEVERAGES, AND WINES and on each liter, or lesser quantity of all
10 other alcoholic beverages sold or used by such distributor, noncommer-
11 cial importer or other person in this state, as so reported, during the
12 period covered by such return, except that, where a distributor has
13 purchased alcoholic beverages prior to the expiration of the period
14 covered by the return, upon which the taxes imposed by this article have
15 been or are required to be paid by another distributor, a credit shall
16 be allowed for the amount of such taxes.
17 3. All alcoholic beverages which have come into the possession of a
18 distributor shall be deemed to have been sold or used by such distribu-
19 tor unless it shall be proved to the satisfaction of the {tax commis-
20 sion} COMMISSIONER that such alcoholic beverages have not been sold or
21 used.
22 4. A distributor entitled to a refund under the provisions of section
23 four hundred thirty-four of this {chapter} ARTICLE, in lieu of such
24 refund, may take credit therefor on a return filed pursuant to this
25 section, unless the {tax commission} COMMISSIONER shall withdraw such
26 privilege.
27 S 12. Subdivision 1 of section 445 of the tax law, as amended by chap-
28 ter 433 of the laws of 1978, is amended to read as follows:
29 1. Any city in this state having a population of one million or more,
30 acting through its local legislative body, is hereby authorized and
31 empowered to adopt and amend local laws imposing in any such city excise
32 taxes on a distributor and a noncommercial importer at the following
33 rates:
34 (a) Twelve cents per gallon upon beers {and};
35 (b) Twenty-six and four-tenths cents per liter on the liquors
36 described in paragraph (f) of subdivision one of section four hundred
37 twenty-four OF THIS ARTICLE; AND
38 (C) THIRTY-NINE CENTS PER GALLON UPON FLAVORED MALT BEVERAGES, when
39 sold or used in such city.
40 Such local law shall provide that if prior to the date upon which the
41 taxes go into effect, a contract of sale of any beer or other alcoholic
42 beverages described above was made, and delivery thereof pursuant to
43 such contract is made within the city imposing such taxes on or after
44 the effective date thereof, the vendor shall be deemed a distributor,
45 and such beer and other alcoholic beverages shall be deemed to be sold,
46 and shall be subject to the tax at the time of such delivery. THE CITY
47 HAS THE OPTION OF IMPOSING TAX ON BEERS AND LIQUORS OR ON BEERS,
48 LIQUORS, AND FLAVORED MALT BEVERAGES.
49 S 13. (a) If a contract for the sale of flavored malt beverages was
50 entered into prior to April 1, 2009 and delivery under that contract is
51 made within the state on or after April 1, 2009, the flavored malt
52 beverages sold under that contract will be subject to tax under article
53 18 of the tax law, as amended by this act, at the time of delivery.
54 (b) In order to subject flavored malt beverages in this state on April
55 1, 2009 to the increased taxes imposed by section six of this act, a
56 special floor tax is imposed on each wholesaler or retailer (as defined
S. 60--A 112 A. 160--A
1 in the alcoholic beverage control law) or other sellers of flavored malt
2 beverages, other than those registered as distributors under article 18
3 of the tax law, at the rate of two dollars and forty-three cents per
4 gallon on all flavored malt beverages in the possession or under the
5 control on April 1, 2009 of those wholesalers, retailers and other sell-
6 ers of flavored malt beverages for purposes of sale in the state. Addi-
7 tionally, any person who is a distributor or manufacturer under article
8 18 of the tax law is subject to this special floor tax on any flavored
9 malt beverages in his or her possession or under his or her control on
10 which the tax under article 18 of the tax law was already imposed at the
11 beer rate prior to April 1, 2009. The first 25 gallons of all flavored
12 malt beverages on April 1, 2009 in the possession or under the control
13 of any manufacturer, wholesaler, retailer, distributor or any other
14 seller of flavored malt beverages are exempt from this floor tax. This
15 floor tax is due and payable to the commissioner of taxation and finance
16 on or before June 22, 2009.
17 (c) If the city of New York imposes tax on flavored malt beverages
18 effective April 1, 2009, under the authority of subdivision 1 of section
19 445 of the tax law, as amended by section twelve of this act, a special
20 floor tax is imposed on each wholesaler or retailer, as defined in the
21 alcoholic beverage control law, other than those registered as distribu-
22 tors under article 18 of the tax law, at the rate of twenty-seven cents
23 per gallon on all flavored malt beverages in the possession or under the
24 control on April 1, 2009 of wholesalers, retailers, or all other sellers
25 of flavored malt beverages, for purposes of sale in that city and the
26 floor tax authorized by subdivision 2 of section 445 of the tax law does
27 not apply. Additionally, any person who is a distributor or manufacturer
28 under article 18 of the tax law is subject to the same special floor tax
29 on any flavored malt beverages in his or her possession or under his or
30 her control on which the tax under article 18 of the tax law was already
31 imposed at the beer rate prior to April 1, 2009. The special city floor
32 tax authorized by this subdivision must be administered, collected and
33 enforced jointly with, and under the same terms as, the special floor
34 tax imposed by subdivision (b) of this section with respect to the
35 increased taxes imposed by section six of this act. If such city imposes
36 a tax on flavored malt beverages that is not effective on April 1, 2009,
37 the provisions of subdivision 2 of section 445 of the tax law do not
38 apply to the increased taxes authorized by section twelve of this act.
39 (d) Except as provided in this section, all the provisions of articles
40 18 and 37 of the tax law will apply to taxes imposed by this section.
41 (e) The commissioner of taxation and finance is authorized to
42 prescribe any terms and conditions such commissioner deems advisable and
43 require any reports such commissioner deems necessary to effectuate the
44 provisions of this section.
45 (f) The commissioner of taxation and finance may request from the
46 state liquor authority, and the state liquor authority is authorized and
47 directed to provide, any cooperation and assistance, including data,
48 that will enable such commissioner to carry out the imposition of the
49 flavored malt beverages tax rate and the implementation of the floor
50 tax.
51 S 14. Subdivision 12-c of section 3 of the alcoholic beverage control
52 law, as renumbered by chapter 366 of the laws of 1992, is renumbered
53 subdivision 12-d and a new subdivision 12-c is added to read as follows:
54 12-C. "FLAVORED MALT BEVERAGE" MEANS AND INCLUDES ANY FERMENTED BEVER-
55 AGES OF ANY NAME OR DESCRIPTION MANUFACTURED FROM MALT, OR FROM ANY
56 SUBSTITUTE THEREFOR, CONTAINING FLAVORS AND OTHER INGREDIENTS DERIVED
S. 60--A 113 A. 160--A
1 FROM LIQUOR OR SPIRITS PROVIDED THAT NO MORE THAN FORTY-NINE PERCENT OF
2 THE OVERALL ALCOHOL CONTENT OF THE FINISHED PRODUCT MAY BE DERIVED FROM
3 THE ADDITION OF SAID FLAVORS AND OTHER INGREDIENTS. FOR PURPOSES OF THIS
4 CHAPTER, "FLAVORED MALT BEVERAGES" SHALL BE CONSIDERED "BEER" AND MAY BE
5 BOUGHT, STORED AND SOLD BY ANY PERSON LICENSED PURSUANT TO THIS CHAPTER
6 WITH A LICENSE THAT ALREADY CONTAINS THE PRIVILEGE TO BUY, SELL OR STORE
7 BEER.
8 S 15. This act shall take effect April 1, 2009.
9 PART Y
10 Section 1. Paragraph (a) of subdivision 1 of section 1003 of the
11 racing, pari-mutuel wagering and breeding law, as amended by chapter 18
12 of the laws of 2008, is amended to read as follows:
13 (a) Any racing association or corporation or regional off-track
14 betting corporation, authorized to conduct pari-mutuel wagering under
15 this chapter, desiring to display the simulcast of horse races on which
16 pari-mutuel betting shall be permitted in the manner and subject to the
17 conditions provided for in this article may apply to the board for a
18 license so to do. Applications for licenses shall be in such form as may
19 be prescribed by the board and shall contain such information or other
20 material or evidence as the board may require. No license shall be
21 issued by the board authorizing the simulcast transmission of thorough-
22 bred races from a track located in Suffolk county. The fee for such
23 licenses shall be five hundred dollars per simulcast facility per year
24 payable by the licensee to the board for deposit into the general fund.
25 Except as provided herein, the board shall not approve any application
26 to conduct simulcasting into individual or group residences, homes or
27 other areas for the purposes of or in connection with pari-mutuel wager-
28 ing. The board may approve simulcasting into residences, homes or other
29 areas to be conducted jointly by one or more regional off-track betting
30 corporations and one or more of the following: a franchised corporation,
31 thoroughbred racing corporation or a harness racing corporation or asso-
32 ciation; provided (i) the simulcasting consists only of those races on
33 which pari-mutuel betting is authorized by this chapter at one or more
34 simulcast facilities for each of the contracting off-track betting
35 corporations which shall include wagers made in accordance with section
36 one thousand fifteen, one thousand sixteen and one thousand seventeen of
37 this {chapter} ARTICLE; provided further that the contract provisions or
38 other simulcast arrangements for such simulcast facility shall be no
39 less favorable than those in effect on January first, two thousand five;
40 (ii) that each off-track betting corporation having within its geograph-
41 ic boundaries such residences, homes or other areas technically capable
42 of receiving the simulcast signal shall be a contracting party; (iii)
43 the distribution of revenues shall be subject to contractual agreement
44 of the parties except that statutory payments to non-contracting
45 parties, if any, may not be reduced; provided, however, that nothing
46 herein to the contrary shall prevent a track from televising its races
47 on an irregular basis primarily for promotional or marketing purposes as
48 found by the board. For purposes of this paragraph, the provisions of
49 section one thousand thirteen of this article shall not apply. Any
50 agreement authorizing an in-home simulcasting experiment commencing
51 prior to May fifteenth, nineteen hundred ninety-five, may, and all its
52 terms, be extended until June thirtieth, two thousand {nine} TEN;
53 provided, however, that any party to such agreement may elect to termi-
54 nate such agreement upon conveying written notice to all other parties
S. 60--A 114 A. 160--A
1 of such agreement at least forty-five days prior to the effective date
2 of the termination, via registered mail. Any party to an agreement
3 receiving such notice of an intent to terminate, may request the board
4 to mediate between the parties new terms and conditions in a replacement
5 agreement between the parties as will permit continuation of an in-home
6 experiment until June thirtieth, two thousand {nine} TEN; and (iv) no
7 in-home simulcasting in the thoroughbred special betting district shall
8 occur without the approval of the regional thoroughbred track.
9 S 2. Subparagraph (iii) of paragraph d of subdivision 3 of section
10 1007 of the racing, pari-mutuel wagering and breeding law, as amended by
11 chapter 18 of the laws of 2008, is amended to read as follows:
12 (iii) Of the sums retained by a receiving track located in Westchester
13 county on races received from a franchised corporation, for the period
14 commencing January first, two thousand eight and continuing through June
15 thirtieth, two thousand {nine} TEN, the amount used exclusively for
16 purses to be awarded at races conducted by such receiving track shall be
17 computed as follows: of the sums so retained, two and one-half percent
18 of the total pools. Such amount shall be increased or decreased in the
19 amount of fifty percent of the difference in total commissions deter-
20 mined by comparing the total commissions available after July twenty-
21 first, nineteen hundred ninety-five to the total commissions that would
22 have been available to such track prior to July twenty-first, nineteen
23 hundred ninety-five.
24 S 3. The opening paragraph of subdivision 1 of section 1014 of the
25 racing, pari-mutuel wagering and breeding law, as amended by chapter 18
26 of the laws of 2008, is amended to read as follows:
27 The provisions of this section shall govern the simulcasting of races
28 conducted at thoroughbred tracks located in another state or country on
29 any day during which a franchised corporation is conducting a race meet-
30 ing in Saratoga county at Saratoga thoroughbred racetrack until June
31 thirtieth, two thousand {nine} TEN and on any day regardless of whether
32 or not a franchised corporation is conducting a race meeting in Saratoga
33 county at Saratoga thoroughbred racetrack after June thirtieth, two
34 thousand {nine} TEN. On any day on which a franchised corporation has
35 not scheduled a racing program but a thoroughbred racing corporation
36 located within the state is conducting racing, every off-track betting
37 corporation branch office and every simulcasting facility licensed in
38 accordance with section one thousand seven (that have entered into a
39 written agreement with such facility`s representative horsemen`s organ-
40 ization, as approved by the board), one thousand eight, or one thousand
41 nine of this article shall be authorized to accept wagers and display
42 the live simulcast signal from thoroughbred tracks located in another
43 state or foreign country subject to the following provisions:
44 S 4. Subdivision 1 of section 1015 of the racing, pari-mutuel wagering
45 and breeding law, as amended by chapter 18 of the laws of 2008, is
46 amended to read as follows:
47 1. The provisions of this section shall govern the simulcasting of
48 races conducted at harness tracks located in another state or country
49 during the period July first, nineteen hundred ninety-four through June
50 thirtieth, two thousand {nine} TEN. This section shall supersede all
51 inconsistent provisions of this chapter.
52 S 5. The opening paragraph of subdivision 1 of section 1016 of the
53 racing, pari-mutuel wagering and breeding law, as amended by chapter 18
54 of the laws of 2008, is amended to read as follows:
55 The provisions of this section shall govern the simulcasting of races
56 conducted at thoroughbred tracks located in another state or country on
S. 60--A 115 A. 160--A
1 any day during which a franchised corporation is not conducting a race
2 meeting in Saratoga county at Saratoga thoroughbred racetrack until June
3 thirtieth, two thousand {nine} TEN. Every off-track betting corporation
4 branch office and every simulcasting facility licensed in accordance
5 with section one thousand seven that have entered into a written agree-
6 ment with such facility`s representative horsemen`s organization as
7 approved by the board, one thousand eight or one thousand nine of this
8 article shall be authorized to accept wagers and display the live full-
9 card simulcast signal of thoroughbred tracks (which may include quarter
10 horse or mixed meetings provided that all such wagering on such races
11 shall be construed to be thoroughbred races) located in another state or
12 foreign country, subject to the following provisions; provided, however,
13 no such written agreement shall be required of a franchised corporation
14 licensed in accordance with section one thousand seven of this article:
15 S 6. The opening paragraph of section 1018 of the racing, pari-mutuel
16 wagering and breeding law, as amended by chapter 18 of the laws of 2008,
17 is amended to read as follows:
18 Notwithstanding any other provision of this chapter, for the period
19 July twenty-fifth, two thousand one through September {ninth} EIGHTH,
20 two thousand {eight} NINE, when a franchised corporation is conducting a
21 race meeting within the state at Saratoga Race Course, every off-track
22 betting corporation branch office and every simulcasting facility
23 licensed in accordance with section one thousand seven (that has entered
24 into a written agreement with such facility`s representative horsemen`s
25 organization as approved by the board), one thousand eight or one thou-
26 sand nine of this article shall be authorized to accept wagers and
27 display the live simulcast signal from thoroughbred tracks located in
28 another state, provided that such facility shall accept wagers on races
29 run at all in-state thoroughbred tracks which are conducting racing
30 programs subject to the following provisions; provided, however, no such
31 written agreement shall be required of a franchised corporation licensed
32 in accordance with section one thousand seven of this article.
33 S 7. Section 32 of chapter 281 of the laws of 1994, amending the
34 racing, pari-mutuel wagering and breeding law and other laws relating to
35 simulcasting, as amended by chapter 18 of the laws of 2008, is amended
36 to read as follows:
37 S 32. This act shall take effect immediately and the pari-mutuel tax
38 reductions in section six of this act shall expire and be deemed
39 repealed on July 1, {2009} 2010; provided, however, that nothing
40 contained herein shall be deemed to affect the application, qualifica-
41 tion, expiration, or repeal of any provision of law amended by any
42 section of this act, and such provisions shall be applied or qualified
43 or shall expire or be deemed repealed in the same manner, to the same
44 extent and on the same date as the case may be as otherwise provided by
45 law; provided further, however, that sections twenty-three and twenty-
46 five of this act shall remain in full force and effect only until May 1,
47 1997 and at such time shall be deemed to be repealed.
48 S 8. Section 54 of chapter 346 of the laws of 1990, amending the
49 racing, pari-mutuel wagering and breeding law and other laws relating to
50 simulcasting and the imposition of certain taxes, as amended by chapter
51 18 of the laws of 2008, is amended to read as follows:
52 S 54. This act shall take effect immediately; provided, however,
53 sections three through twelve of this act shall take effect on January
54 1, 1991, and section 1013 of the racing, pari-mutuel wagering and breed-
55 ing law, as added by section thirty-eight of this act, shall expire and
56 be deemed repealed on July 1, {2009} 2010; and section eighteen of this
S. 60--A 116 A. 160--A
1 act shall take effect on July 1, 2008 and sections fifty-one and fifty-
2 two of this act shall take effect as of the same date as chapter 772 of
3 the laws of 1989 took effect.
4 S 9. Paragraph (a) of subdivision 1 of section 238 of the racing,
5 pari-mutuel wagering and breeding law, as amended by chapter 115 of the
6 laws of 2008, is amended to read as follows:
7 (a) The franchised corporation authorized under this chapter to
8 conduct pari-mutuel betting at a race meeting or races run thereat shall
9 distribute all sums deposited in any pari-mutuel pool to the holders of
10 winning tickets therein, provided such tickets be presented for payment
11 before April first of the year following the year of their purchase,
12 less an amount which shall be established and retained by such fran-
13 chised corporation of between sixteen to seventeen per centum of the
14 total deposits in pools resulting from on-track regular bets, and eigh-
15 teen and one-half to twenty-one per centum of the total deposits in
16 pools resulting from on-track multiple bets and twenty-six per centum of
17 the total deposits in pools resulting from on-track exotic bets and
18 sixteen to thirty-six per centum of the total deposits in pools result-
19 ing from on-track super exotic bets, and twenty-six to thirty-six per
20 centum when such on-track super exotic betting pools are carried
21 forward, plus the breaks. The retention rate to be established is
22 subject to the prior approval of the racing and wagering board. Such
23 rate may not be changed more than once per calendar quarter to be effec-
24 tive on the first day of the calendar quarter. "Exotic bets" and
25 "multiple bets" shall have the meanings set forth in section five
26 hundred nineteen of this chapter. "Super exotic bets" shall have the
27 meaning set forth in section three hundred one of this chapter. For
28 purposes of this section, a "pick six bet" shall mean a single bet or
29 wager on the outcomes of six races. The breaks are hereby defined as the
30 odd cents over any multiple of five for payoffs greater than one dollar
31 five cents but less than five dollars, over any multiple of ten for
32 payoffs greater than five dollars but less than twenty-five dollars,
33 over any multiple of twenty-five for payoffs greater than twenty-five
34 dollars but less than two hundred fifty dollars, or over any multiple of
35 fifty for payoffs over two hundred fifty dollars. Out of the amount so
36 retained there shall be paid by such franchised corporation to the
37 commissioner of taxation and finance, as a reasonable tax by the state
38 for the privilege of conducting pari-mutuel betting on the races run at
39 the race meetings held by such franchised corporation, the following
40 percentages of the total pool for regular and multiple bets five per
41 centum of regular bets and four per centum of multiple bets plus twenty
42 per centum of the breaks; for exotic wagers seven and one-half per
43 centum plus twenty per centum of the breaks, and for super exotic bets
44 seven and one-half per centum plus fifty per centum of the breaks. For
45 the period June first, nineteen hundred ninety-five through September
46 ninth, nineteen hundred ninety-nine, such tax on regular wagers shall be
47 three per centum and such tax on multiple wagers shall be two and one-
48 half per centum, plus twenty per centum of the breaks. For the period
49 September tenth, nineteen hundred ninety-nine through March thirty-
50 first, two thousand one, such tax on all wagers shall be two and six-
51 tenths per centum and for the period April first, two thousand one
52 through December thirty-first, two thousand {nine} TEN, such tax on all
53 wagers shall be one and six-tenths per centum, plus, in each such peri-
54 od, twenty per centum of the breaks. Payment to the New York state
55 thoroughbred breeding and development fund by such franchised corpo-
56 ration shall be one-half of one per centum of total daily on-track pari-
S. 60--A 117 A. 160--A
1 mutuel pools resulting from regular, multiple and exotic bets and three
2 per centum of super exotic bets provided, however, that for the period
3 September tenth, nineteen hundred ninety-nine through March thirty-
4 first, two thousand one, such payment shall be six-tenths of one per
5 centum of regular, multiple and exotic pools and for the period April
6 first, two thousand one through December thirty-first, two thousand
7 {nine} TEN, such payment shall be seven-tenths of one per centum of such
8 pools.
9 S 10. Paragraph (a) of subdivision 1 of section 238 of the racing,
10 pari-mutuel wagering and breeding law, as amended by chapter 18 of the
11 laws of 2008, is amended to read as follows:
12 (a) The franchised corporation authorized under this chapter to
13 conduct pari-mutuel betting at a race meeting or races run thereat shall
14 distribute all sums deposited in any pari-mutuel pool to the holders of
15 winning tickets therein, provided such tickets be presented for payment
16 before April first of the year following the year of their purchase,
17 less an amount which shall be established and retained by such fran-
18 chised corporation of between twelve to seventeen per centum of the
19 total deposits in pools resulting from on-track regular bets, and four-
20 teen to twenty-one per centum of the total deposits in pools resulting
21 from on-track multiple bets and fifteen to twenty-five per centum of the
22 total deposits in pools resulting from on-track exotic bets and fifteen
23 to thirty-six per centum of the total deposits in pools resulting from
24 on-track super exotic bets, plus the breaks. The retention rate to be
25 established is subject to the prior approval of the racing and wagering
26 board. Such rate may not be changed more than once per calendar quarter
27 to be effective on the first day of the calendar quarter. "Exotic bets"
28 and "multiple bets" shall have the meanings set forth in section five
29 hundred nineteen of this chapter. "Super exotic bets" shall have the
30 meaning set forth in section three hundred one of this chapter. For
31 purposes of this section, a "pick six bet" shall mean a single bet or
32 wager on the outcomes of six races. The breaks are hereby defined as the
33 odd cents over any multiple of five for payoffs greater than one dollar
34 five cents but less than five dollars, over any multiple of ten for
35 payoffs greater than five dollars but less than twenty-five dollars,
36 over any multiple of twenty-five for payoffs greater than twenty-five
37 dollars but less than two hundred fifty dollars, or over any multiple of
38 fifty for payoffs over two hundred fifty dollars. Out of the amount so
39 retained there shall be paid by such franchised corporation to the
40 commissioner of taxation and finance, as a reasonable tax by the state
41 for the privilege of conducting pari-mutuel betting on the races run at
42 the race meetings held by such franchised corporation, the following
43 percentages of the total pool for regular and multiple bets five per
44 centum of regular bets and four per centum of multiple bets plus twenty
45 per centum of the breaks; for exotic wagers seven and one-half per
46 centum plus twenty per centum of the breaks, and for super exotic bets
47 seven and one-half per centum plus fifty per centum of the breaks. For
48 the period June first, nineteen hundred ninety-five through September
49 ninth, nineteen hundred ninety-nine, such tax on regular wagers shall be
50 three per centum and such tax on multiple wagers shall be two and one-
51 half per centum, plus twenty per centum of the breaks. For the period
52 September tenth, nineteen hundred ninety-nine through March thirty-
53 first, two thousand one, such tax on all wagers shall be two and six-
54 tenths per centum and for the period April first, two thousand one
55 through December thirty-first, two thousand {nine} TEN, such tax on all
56 wagers shall be one and six-tenths per centum, plus, in each such peri-
S. 60--A 118 A. 160--A
1 od, twenty per centum of the breaks. Payment to the New York state
2 thoroughbred breeding and development fund by such franchised corpo-
3 ration shall be one-half of one per centum of total daily on-track pari-
4 mutuel pools resulting from regular, multiple and exotic bets and three
5 per centum of super exotic bets provided, however, that for the period
6 September tenth, nineteen hundred ninety-nine through March thirty-
7 first, two thousand one, such payment shall be six-tenths of one per
8 centum of regular, multiple and exotic pools and for the period April
9 first, two thousand one through December thirty-first, two thousand
10 {eight} TEN, such payment shall be seven-tenths of one per centum of
11 such pools.
12 S 11. Subdivision 5 of section 1012 of the racing, pari-mutuel wager-
13 ing and breeding law, as amended by chapter 18 of the laws of 2008, is
14 amended to read as follows:
15 5. The provisions of this section shall expire and be of no further
16 force and effect after June thirtieth, two thousand {nine} TEN.
17 S 12. This act shall take effect immediately, provided that the amend-
18 ments to paragraph (a) of subdivision 1 of section 238 of the racing,
19 pari-mutuel wagering and breeding law made by section nine of this act
20 shall be subject to the expiration and reversion of such paragraph
21 pursuant to section 32 of chapter 115 of the laws of 2008, as amended,
22 when upon such date the provisions of section ten of this act shall take
23 effect.
24 PART Z
25 Section 1. Paragraph 1 of subdivision (j) of section 1111 of the tax
26 law, as amended by section 1 of part E of chapter 85 of the laws of
27 2002, is amended to read as follows:
28 (1) The tax required to be prepaid pursuant to section eleven hundred
29 three of this article shall be computed by multiplying the base retail
30 price by a tax rate of {seven} EIGHT percent and rounding the result
31 thereof to the nearest whole cent per package.
32 S 2. This act shall take effect June 1, 2009; and shall apply to sales
33 made and uses occurring on or after that date in accordance with appli-
34 cable transitional provisions in article 28 of the tax law.
35 PART AA
36 Section 1. Paragraph 17 of subdivision (b) of section 1101 of the tax
37 law, as added by chapter 309 of the laws of 1996, is amended to read as
38 follows:
39 (17) Commercial aircraft. Aircraft used primarily (i) to transport
40 persons or property, for hire, (ii) by the purchaser of the aircraft
41 {primarily} to transport such person`s tangible personal property in the
42 conduct of such person`s business, or (iii) for both such purposes.
43 TRANSPORTING PERSONS FOR HIRE DOES NOT INCLUDE TRANSPORTING AGENTS,
44 EMPLOYEES, OFFICERS, MEMBERS, PARTNERS, MANAGERS OR DIRECTORS OF AFFIL-
45 IATED PERSONS. PERSONS ARE AFFILIATED PERSONS WITH RESPECT TO EACH OTHER
46 WHERE ONE OF THE PERSONS HAS AN OWNERSHIP INTEREST OF MORE THAN FIVE
47 PERCENT, WHETHER DIRECT OR INDIRECT, IN THE OTHER, OR WHERE AN OWNERSHIP
48 INTEREST OF MORE THAN FIVE PERCENT, WHETHER DIRECT OR INDIRECT, IS HELD
49 IN EACH OF THE PERSONS BY ANOTHER PERSON OR BY A GROUP OF OTHER PERSONS
50 THAT ARE AFFILIATED PERSONS WITH RESPECT TO EACH OTHER.
51 S 2. Subdivision 2 of section 1118 of the tax law, as amended by chap-
52 ter 651 of the laws of 1999, is amended to read as follows:
S. 60--A 119 A. 160--A
1 (2) In respect to the use of property or services purchased by the
2 user while a nonresident of this state, except in the case of tangible
3 personal property or services which the user, in the performance of a
4 contract, incorporates into real property located in the state. A person
5 while engaged in any manner in carrying on in this state any employment,
6 trade, business or profession, shall not be deemed a nonresident with
7 respect to the use in this state of property or services in such employ-
8 ment, trade, business or profession. THIS EXEMPTION DOES NOT APPLY TO
9 THE USE OF QUALIFIED PROPERTY WHERE THE QUALIFIED PROPERTY IS PURCHASED
10 PRIMARILY TO CARRY INDIVIDUALS, WHETHER OR NOT FOR HIRE, WHO ARE AGENTS,
11 EMPLOYEES, OFFICERS, SHAREHOLDERS, MEMBERS, MANAGERS, PARTNERS, OR
12 DIRECTORS OF (A) THE PURCHASER, WHERE ANY OF THOSE INDIVIDUALS WAS A
13 RESIDENT OF THIS STATE WHEN THE QUALIFIED PROPERTY WAS PURCHASED OR (B)
14 ANY AFFILIATED PERSON THAT WAS A RESIDENT WHEN THE QUALIFIED PROPERTY
15 WAS PURCHASED. FOR PURPOSES OF THIS SUBDIVISION: (I) PERSONS ARE AFFIL-
16 IATED PERSONS WITH RESPECT TO EACH OTHER WHERE ONE OF THE PERSONS HAS AN
17 OWNERSHIP INTEREST OF MORE THAN FIVE PERCENT, WHETHER DIRECT OR INDI-
18 RECT, IN THE OTHER, OR WHERE AN OWNERSHIP INTEREST OF MORE THAN FIVE
19 PERCENT, WHETHER DIRECT OR INDIRECT, IS HELD IN EACH OF THE PERSONS BY
20 ANOTHER PERSON OR BY A GROUP OF OTHER PERSONS THAT ARE AFFILIATED
21 PERSONS WITH RESPECT TO EACH OTHER; (II) "QUALIFIED PROPERTY" MEANS
22 AIRCRAFT, VESSELS AND MOTOR VEHICLES; AND (III) "CARRY" MEANS TO TAKE
23 ANY PERSON FROM ONE POINT TO ANOTHER, WHETHER FOR THE BUSINESS PURPOSES
24 OR PLEASURE OF THAT PERSON.
25 S 3. This act shall take effect on June 1, 2009, and shall apply to
26 sales made and uses occurring on or after such date in accordance with
27 the applicable transitional provisions in sections 1106 and 1217 of the
28 tax law.
29 PART BB
30 Section 1. Subdivision (e-1) of section 1132 of the tax law is
31 REPEALED.
32 S 2. This act shall take effect on June 1, 2009.
33 PART CC
34 Section 1. Section 208 of the tax law is amended by adding a new
35 subdivision 20 to read as follows:
36 20. THE TERM "DIGITAL PRODUCT" MEANS ANY PROPERTY OR SERVICE, OR
37 COMBINATION THEREOF, OF WHATEVER NATURE DELIVERED TO THE PURCHASER
38 THROUGH THE USE OF WIRE, CABLE, FIBER-OPTIC, LASER, MICROWAVE, RADIO
39 WAVE, SATELLITE OR SIMILAR SUCCESSOR MEDIA, OR ANY COMBINATION THEREOF.
40 DIGITAL PRODUCT INCLUDES, BUT IS NOT LIMITED TO, AN AUDIO WORK, AUDI-
41 OVISUAL WORK, VISUAL WORK, BOOK OR LITERARY WORK, GRAPHIC WORK, GAME,
42 INFORMATION OR ENTERTAINMENT SERVICE, STORAGE OF DIGITAL PRODUCTS AND
43 COMPUTER SOFTWARE BY WHATEVER MEANS DELIVERED. THE TERM "DELIVERED TO"
44 INCLUDES FURNISHED OR PROVIDED TO OR ACCESSED BY. FOR PURPOSES OF PARA-
45 GRAPH (A) OF SUBDIVISION TWO OF SECTION TWO HUNDRED NINE-B OF THIS ARTI-
46 CLE, SUBPARAGRAPH ONE OF PARAGRAPH (A) OF SUBDIVISION THREE OF SECTION
47 TWO HUNDRED TEN OF THIS ARTICLE AND SUBDIVISIONS TWELVE, TWELVE-B AND
48 THIRTY-THREE OF SECTION TWO HUNDRED TEN OF THIS ARTICLE, DIGITAL
49 PRODUCTS WILL BE DEEMED INTANGIBLE PROPERTY. A DIGITAL PRODUCT DOES NOT
50 INCLUDE LEGAL, MEDICAL, ACCOUNTING, ARCHITECTURAL OR ENGINEERING
51 SERVICES.
S. 60--A 120 A. 160--A
1 S 2. Clause (B) of subparagraph 2 of paragraph (a) of subdivision 3 of
2 section 210 of the tax law, as separately amended by section 1 of part K
3 and section 13 of part Y of chapter 63 of the laws of 2000, is amended
4 to read as follows:
5 (B) services performed within the state, provided, however, that (i)
6 in the case of a taxpayer engaged in the business of publishing newspa-
7 pers or periodicals, receipts arising from sales of advertising
8 contained in such newspapers and periodicals shall be deemed to arise
9 from services performed within the state to the extent that such newspa-
10 pers and periodicals are delivered to points within the state, (ii)
11 receipts from an investment company arising from the sale of management,
12 administration or distribution services to such investment company shall
13 be deemed to arise from services performed within the state to the
14 extent set forth in subparagraph six of this paragraph, (iii) in the
15 case of taxpayers principally engaged in the activity of air freight
16 forwarding acting as principal and like indirect air carriage receipts
17 arising from such activity shall arise from services performed within
18 the state as follows: one hundred percent of such receipts if both the
19 pickup and delivery associated with such receipts are made in this state
20 and fifty percent of such receipts if either the pickup or delivery
21 associated with such receipts is made in this state and (iv) in the case
22 of a taxpayer which is a registered securities or commodities broker or
23 dealer, the receipts specified in subparagraph nine of this paragraph
24 shall be deemed to arise from services performed within the state to the
25 extent set forth in such subparagraph nine, {and (iv)} (V) IN THE CASE
26 OF A TAXPAYER ENGAGED IN THE BUSINESS OF BROADCASTING TELEVISION OR
27 RADIO PROGRAMS OR OTHERWISE TRANSMITTING TELEVISION OR RADIO PROGRAMS,
28 RECEIPTS ARISING FROM SALES OF ADVERTISING ON TELEVISION OR RADIO WILL
29 BE DEEMED TO BE RECEIPTS FROM SERVICES PERFORMED WITHIN THE STATE BASED
30 ON THE RATIO OF THE NUMBER OF VIEWERS OR LISTENERS WITHIN THE STATE TO
31 THE TOTAL NUMBER OF VIEWERS OR LISTENERS WITHIN AND WITHOUT THE STATE,
32 AND (VI) IN THE CASE OF A TAXPAYER NOT DESCRIBED IN SUBCLAUSE (V) OF
33 THIS CLAUSE, RECEIPTS ARISING FROM SALES OF ADVERTISING THAT IS
34 FURNISHED, PROVIDED OR DELIVERED TO, OR ACCESSED BY THE VIEWER OR
35 LISTENER THROUGH THE USE OF WIRE, CABLE, FIBER-OPTIC, LASER, MICROWAVE,
36 RADIO WAVE, SATELLITE OR SIMILAR SUCCESSOR MEDIA OR ANY COMBINATION
37 THEREOF, WILL BE DEEMED TO BE RECEIPTS FROM A SERVICE PERFORMED WITHIN
38 THE STATE BASED ON THE RATIO OR THE NUMBER OF VIEWERS OR LISTENERS WITH-
39 IN THE STATE TO THE TOTAL NUMBER OF VIEWERS OR LISTENERS WITHIN AND
40 WITHOUT THE STATE, AND (VII) in the case of receipts arising from the
41 transportation or transmission of gas through pipes, the portion of such
42 receipts which constitute receipts from services performed within the
43 state shall be the product of (I) the total of such receipts and (II) a
44 fraction, the numerator of which is the taxpayer`s transportation units
45 within the state and the denominator of which is the taxpayer`s trans-
46 portation units within and without the state. A transportation unit is
47 the transportation of one cubic foot of gas over a distance of one mile,
48 S 3. Clause (C) of subparagraph 2 of paragraph (a) of subdivision 3 of
49 section 210 of the tax law, as amended by chapter 802 of the laws of
50 1975, is amended to read as follows:
51 (C) EXCEPT AS PROVIDED IN CLAUSE (D) OF THIS SUBPARAGRAPH, rentals
52 from property situated, and royalties from the use of patents or copy-
53 rights, AND OTHER SIMILAR INTANGIBLE PROPERTY within the state, {and
54 receipts from the sales of rights for closed-circuit and cable tele-
55 vision transmissions of an event (other than events occurring on a regu-
56 larly scheduled basis) taking place within the state as a result of the
S. 60--A 121 A. 160--A
1 rendition of services by employees of the corporation, as athletes,
2 entertainers or performing artists, but only to the extent that such
3 receipts are attributable to such transmissions received or exhibited
4 within the state} and
5 S 4. Clause (D) of subparagraph 2 of paragraph (a) of subdivision 3 of
6 section 210 of the tax law, as amended by chapter 802 of the laws of
7 1975, is amended to read as follows:
8 {(D)} (E) all other business receipts earned within the state, bear to
9 the total amount of the taxpayer`s receipts, similarly computed, arising
10 during such period from all sales of its tangible personal property,
11 services, rentals, royalties, {receipts from the sales of rights for
12 closed-circuit and cable television transmissions} RECEIPTS FROM DIGITAL
13 PRODUCTS and all other business transactions, whether within or without
14 the state;
15 S 5. Subparagraph 2 of paragraph (a) of subdivision 3 of section 210
16 of the tax law is amended by adding new clause (D) to read as follows:
17 (D) RECEIPTS FROM THE SALE OF, LICENSE TO USE, OR GRANTING OF REMOTE
18 ACCESS TO DIGITAL PRODUCTS WITHIN THE STATE DETERMINED ACCORDING TO THE
19 HIERARCHY OF METHODS SET FORTH IN THIS CLAUSE IN THE ORDER STATED IN
20 SUBCLAUSES (I) THROUGH (IV) OF THIS CLAUSE. THE TAXPAYER MUST EXERCISE
21 DUE DILIGENCE UNDER EACH METHOD DESCRIBED IN THIS CLAUSE BEFORE REJECT-
22 ING IT AND PROCEEDING TO THE NEXT METHOD IN THE HIERARCHY. IF THE
23 RECEIPT FOR A DIGITAL PRODUCT IS COMPRISED OF A COMBINATION OF PROPERTY
24 AND SERVICES, IT CANNOT BE DIVIDED INTO SEPARATE COMPONENTS AND IS
25 CONSIDERED TO BE ONE RECEIPT REGARDLESS OF WHETHER IT IS SEPARATELY
26 STATED FOR BILLING PURPOSES. THE ENTIRE RECEIPT MUST BE ALLOCATED BY
27 THIS HIERARCHY.
28 (I) RECEIPTS ALLOCATED TO THE DELIVERY DESTINATION OF THE DIGITAL
29 PRODUCT. A DIGITAL PRODUCT IS DEEMED DELIVERED WITHIN THE STATE IF THE
30 LOCATION FROM WHICH THE PURCHASER OR ITS AUTHORIZED USER ACCESSES OR
31 USES THE DIGITAL PRODUCT IS IN THE STATE. DESTINATION MAY BE DEMON-
32 STRATED BY INTERNET PROTOCOL ADDRESS OR OTHER SIMILAR OR SUCCESSOR INDI-
33 CATOR, THE GEOGRAPHIC LOCATION OF THE EQUIPMENT TO WHICH THE DIGITAL
34 PRODUCT IS DELIVERED OR FROM WHICH THE DIGITAL PRODUCT IS ACCESSED, OR
35 THE DELIVERY DESTINATION INDICATED ON A BILL OF LADING OR PURCHASE
36 INVOICE. A DIGITAL PRODUCT ACCESSED OR USED BY THE PURCHASER OR ITS
37 AUTHORIZED USER DURING THE TAXPAYER`S TAXABLE YEAR IN MULTIPLE LOCATIONS
38 IS DELIVERED WITHIN THE STATE TO THE EXTENT THAT THE DIGITAL PRODUCT IS
39 ACCESSED OR USED IN THE STATE;
40 (II) THE BILLING ADDRESS OF THE PURCHASER;
41 (III) THE ZIP CODE OR OTHER GEOGRAPHIC INDICATOR OF THE PURCHASER`S
42 LOCATION; OR
43 (IV) THE PERCENTAGE OF THE TAXPAYER`S RECEIPTS WITHIN THE STATE DETER-
44 MINED PURSUANT TO THIS SUBPARAGRAPH FOR THE PRECEDING TAXABLE YEAR.
45 HOWEVER, IF THE TAXPAYER WAS NOT SUBJECT TO TAX IN THE PRECEDING TAXABLE
46 YEAR, THEN THE RECEIPTS WITHIN THE STATE IN THE CURRENT TAXABLE YEAR
47 DETERMINED PURSUANT TO THIS SUBPARAGRAPH.
48 S 6. Subparagraph 2 of paragraph (b) of subdivision 2 of section 209-B
49 of the tax law, as amended by section 3 of part K of chapter 63 of the
50 laws of 2000, is amended to read as follows:
51 (2) services performed within the metropolitan commuter transportation
52 district, provided, however, that (i) in the case of a taxpayer engaged
53 in the business of publishing newspapers or periodicals, receipts aris-
54 ing from sales of advertising contained in such newspapers and period-
55 icals shall be deemed to arise from services performed within the metro-
56 politan commuter transportation district to the extent that such
S. 60--A 122 A. 160--A
1 newspapers and periodicals are delivered to points within the metropol-
2 itan commuter transportation district, (ii) receipts from an investment
3 company from the sale of management, administration or distribution
4 services to such investment company shall be deemed to arise from
5 services performed within the metropolitan commuter transportation
6 district to the extent set forth in subparagraph six of paragraph (a) of
7 subdivision three of section two hundred ten of this chapter (except
8 that references in such subparagraph six to the state shall be deemed,
9 for purposes of application to this clause, to be references to the
10 metropolitan commuter transportation district), (iii) in the case of
11 taxpayers principally engaged in the activity of air freight forwarding
12 acting as principal and like indirect air carriage receipts arising from
13 such activity shall arise from services performed within the metropol-
14 itan commuter transportation district as follows: one hundred percent of
15 such receipts if both the pickup and delivery associated with such
16 receipts are made in the metropolitan commuter transportation district
17 and fifty percent of such receipts if either the pickup or delivery
18 associated with such receipts is made in the metropolitan commuter
19 transportation district, {and} (iv) in the case of a taxpayer which is a
20 registered securities or commodities broker or dealer, the receipts
21 specified in subparagraph nine of paragraph (a) of subdivision three of
22 section two hundred ten of this article shall be deemed to arise from
23 services performed within the metropolitan commuter transportation
24 district to the extent set forth in such subparagraph nine (except that
25 references in such subparagraph nine to the state shall be deemed, for
26 purposes of the application of this clause, to be references to the
27 metropolitan commuter transportation district) AND (V) IN THE CASE OF A
28 TAXPAYER ENGAGED IN THE BUSINESS OF BROADCASTING TELEVISION OR RADIO
29 PROGRAMS OR OTHERWISE TRANSMITTING TELEVISION OR RADIO PROGRAMS,
30 RECEIPTS ARISING FROM SALES OF ADVERTISING ON TELEVISION OR RADIO WILL
31 BE DEEMED TO BE RECEIPTS FROM SERVICES PERFORMED WITHIN THE METROPOLITAN
32 COMMUTER TRANSPORTATION DISTRICT BASED ON THE RATIO OF THE NUMBER OF
33 VIEWERS OR LISTENERS WITHIN THE METROPOLITAN COMMUTER TRANSPORTATION
34 DISTRICT TO THE TOTAL NUMBER OF VIEWERS OR LISTENERS WITHIN THE STATE,
35 AND (VI) IN THE CASE OF A TAXPAYER NOT DESCRIBED IN CLAUSE (V) OF THIS
36 SUBPARAGRAPH, RECEIPTS ARISING FROM SALES OF ADVERTISING THAT IS
37 FURNISHED TO, PROVIDED OR DELIVERED TO, OR ACCESSED BY THE VIEWER OR
38 LISTENER THROUGH THE USE OF WIRE, CABLE, FIBER-OPTIC, LASER, MICROWAVE,
39 RADIO WAVE, SATELLITE OR SIMILAR SUCCESSOR MEDIA OR ANY COMBINATION
40 THEREOF, WILL BE DEEMED TO BE RECEIPTS FROM A SERVICE PERFORMED WITHIN
41 THE METROPOLITAN COMMUTER TRANSPORTATION DISTRICT BASED ON THE RATIO OF
42 THE NUMBER OF VIEWERS OR LISTENERS WITHIN THE METROPOLITAN COMMUTER
43 TRANSPORTATION DISTRICT TO THE TOTAL NUMBER OF VIEWERS OR LISTENERS
44 WITHIN THE STATE,
45 S 7. Subparagraph 3 of paragraph (b) of subdivision 2 of section 209-B
46 of the tax law, as amended by chapter 11 of the laws of 1983, is amended
47 to read as follows:
48 (3) EXCEPT AS PROVIDED IN SUBPARAGRAPH FOUR OF THIS PARAGRAPH, rentals
49 from property situated and royalties from the use of patents or copy-
50 rights AND OTHER SIMILAR INTANGIBLE within the metropolitan commuter
51 transportation district, {and receipts from the sales of rights for
52 closed-circuit and cable television transmissions of an event (other
53 than events occurring on a regularly scheduled basis) taking place with-
54 in the metropolitan commuter transportation district as a result of the
55 rendition of services by employees of the corporation, as athletes,
56 entertainers or performing artists, but only to the extent that such
S. 60--A 123 A. 160--A
1 receipts are attributable to such transmissions received or exhibited
2 within the metropolitan commuter transportation district,} and
3 S 8. Subparagraph 4 of paragraph (b) of subdivision 2 of section 209-B
4 of the tax law, as amended by chapter 11 of the laws of 1983, is amended
5 to read as follows:
6 {(4)} (5) all other business receipts earned within the metropolitan
7 commuter transportation district, bear to the total amount of the
8 taxpayer`s receipts, similarly computed, arising during such period from
9 all sales of its tangible personal property, services, rentals, royal-
10 ties, {receipts from the sales of rights for closed-circuit and cable
11 television transmissions} RECEIPTS FROM DIGITAL PRODUCTS and all other
12 business transactions, within the state;
13 S 9. Paragraph (b) of subdivision 2 of section 209-B of the tax law is
14 amended by adding a new subparagraph 4 to read as follows:
15 (4) RECEIPTS FROM THE SALE OF, LICENSE TO USE, OR GRANTING OF REMOTE
16 ACCESS TO DIGITAL PRODUCTS WITHIN THE METROPOLITAN COMMUTER TRANSPORTA-
17 TION DISTRICT DETERMINED ACCORDING TO THE HIERARCHY OF METHODS SET FORTH
18 IN THIS SUBPARAGRAPH IN THE ORDER STATED IN CLAUSES (I) THROUGH (IV) OF
19 THIS SUBPARAGRAPH. THE TAXPAYER MUST EXERCISE DUE DILIGENCE UNDER EACH
20 METHOD DESCRIBED IN THIS SUBPARAGRAPH BEFORE REJECTING IT AND PROCEEDING
21 TO THE NEXT METHOD IN THE HIERARCHY. IF THE RECEIPT FOR A DIGITAL PROD-
22 UCT IS COMPRISED OF A COMBINATION OF PROPERTY AND SERVICES, IT CANNOT BE
23 DIVIDED INTO SEPARATE COMPONENTS AND IS CONSIDERED TO BE ONE RECEIPT
24 REGARDLESS OF WHETHER IT IS SEPARATELY STATED FOR BILLING PURPOSES. THE
25 ENTIRE RECEIPT MUST BE ALLOCATED BY THIS HIERARCHY.
26 (I) RECEIPTS ALLOCATED TO THE DELIVERY DESTINATION OF THE DIGITAL
27 PRODUCT. A DIGITAL PRODUCT IS DEEMED DELIVERED WITHIN THE METROPOLITAN
28 COMMUTER TRANSPORTATION DISTRICT IF THE LOCATION FROM WHICH THE PURCHAS-
29 ER OR ITS AUTHORIZED USER ACCESSES OR USES THE DIGITAL PRODUCT IS IN THE
30 METROPOLITAN COMMUTER TRANSPORTATION DISTRICT. DESTINATION MAY BE DEMON-
31 STRATED BY INTERNET PROTOCOL ADDRESS OR OTHER SIMILAR OR SUCCESSOR INDI-
32 CATOR, THE GEOGRAPHIC LOCATION OF THE EQUIPMENT TO WHICH THE DIGITAL
33 PRODUCT IS DELIVERED OR FROM WHICH THE DIGITAL PRODUCT IS ACCESSED, THE
34 DELIVERY DESTINATION INDICATED ON A BILL OF LADING OR PURCHASE INVOICE.
35 A DIGITAL PRODUCT ACCESSED OR USED BY THE PURCHASER OR ITS AUTHORIZED
36 USER DURING THE TAXPAYER`S TAXABLE YEAR IN MULTIPLE LOCATIONS IS DELIV-
37 ERED WITHIN THE METROPOLITAN COMMUTER TRANSPORTATION DISTRICT TO THE
38 EXTENT THAT THE DIGITAL PRODUCT IS ACCESSED OR USED IN THE METROPOLITAN
39 COMMUTER TRANSPORTATION DISTRICT;
40 (II) THE BILLING ADDRESS OF THE PURCHASER;
41 (III) THE ZIP CODE OR OTHER GEOGRAPHIC INDICATOR OF THE PURCHASER`S
42 LOCATION; OR
43 (IV) THE PERCENTAGE OF THE TAXPAYER`S RECEIPTS WITHIN THE METROPOLITAN
44 COMMUTER TRANSPORTATION DISTRICT DETERMINED PURSUANT TO THIS PARAGRAPH
45 FOR THE PRECEDING TAXABLE YEAR. HOWEVER, IF THE TAXPAYER WAS NOT SUBJECT
46 TO TAX IN THE PRECEDING TAXABLE YEAR, THEN THE RECEIPTS WITHIN THE
47 METROPOLITAN COMMUTER TRANSPORTATION DISTRICT IN THE CURRENT TAXABLE
48 YEAR DETERMINED PURSUANT TO THIS PARAGRAPH.
49 S 9-a. Subparagraph 4 of paragraph (b) of subdivision 2 of section
50 186-e of the tax law, as added by section 5 of part S of chapter 85 of
51 the laws of 2002, is amended to read as follows:
52 (4) With respect to services {or}, property OR DIGITAL PRODUCTS
53 described in subparagraph (B) of paragraph one of subdivision {(1)} ONE
54 of section eleven hundred eleven of this chapter and internet access
55 service, a home service provider shall pay tax on the gross receipt from
56 any charge that is aggregated with and not separately stated from other
S. 60--A 124 A. 160--A
1 charges for mobile telecommunications service. Provided, however, if
2 such home service provider uses an objective, reasonable and verifiable
3 standard for identifying each of the components of the charge for mobile
4 telecommunications service, then such home service provider may sepa-
5 rately account for and quantify the amount of each such component
6 charge. If a home service provider chooses to so separately account for
7 and quantify and separately sells the subparagraph (B) property, DIGITAL
8 PRODUCT or service or internet access service, then the charge for such
9 property, DIGITAL PRODUCT or service shall be based upon the price for
10 such property, DIGITAL PRODUCT or service as separately sold. If a home
11 service provider chooses to so separately account for and quantify and
12 does not separately sell such property, DIGITAL PRODUCT or service, then
13 the charge for such property, DIGITAL PRODUCT or service shall be based
14 upon the prevailing retail price of comparable property, DIGITAL PRODUCT
15 or service sold separately by other home service providers. In any case,
16 the charge for such property, DIGITAL PRODUCT or service shall be
17 reasonable and proportionate to the total charge to the mobile telecom-
18 munications customer. Such charges for such subparagraph (B) services
19 {or}, property, DIGITAL PRODUCTS or internet access service, as the case
20 may be, will not constitute gross receipts from charges for mobile tele-
21 communications services. Nothing herein shall be construed to exempt
22 from tax any service or property, OR DIGITAL PRODUCT otherwise subject
23 to tax under this section.
24 S 10. Section 1101 of the tax law is amended by adding a new subdivi-
25 sion (e) to read as follows:
26 (E) DIGITAL PRODUCT. (1) WHEN USED IN THIS ARTICLE FOR THE PURPOSES
27 OF THE TAXES IMPOSED BY SUBDIVISION (G) OF SECTION ELEVEN HUNDRED FIVE
28 OF THIS ARTICLE AND BY SECTION ELEVEN HUNDRED TEN OF THIS ARTICLE, THE
29 TERM "DIGITAL PRODUCT" MEANS ANY PROPERTY OR SERVICE OF WHATEVER NATURE,
30 DELIVERED TO THE PURCHASER THROUGH THE USE OF WIRE, CABLE, FIBER OPTIC,
31 LASER, MICROWAVE, RADIO WAVE, SATELLITE OR SIMILAR OR SUCCESSOR MEDIA,
32 OR ANY COMBINATION THEREOF. DIGITAL PRODUCT INCLUDES, BUT IS NOT LIMITED
33 TO, AN AUDIO WORK, AUDIOVISUAL WORK, VISUAL WORK, BOOK OR LITERARY WORK,
34 GRAPHIC WORK, GAME, INFORMATION OR ENTERTAINMENT SERVICE, STORAGE OF
35 DIGITAL PRODUCTS AND COMPUTER SOFTWARE. THE TERM "DELIVERED TO" INCLUDES
36 FURNISHED OR PROVIDED TO OR ACCESSED BY.
37 (2) DIGITAL PRODUCT DOES NOT INCLUDE THE FOLLOWING:
38 (I) ANY TANGIBLE PERSONAL PROPERTY OR SERVICE THAT IS SUBJECT TO TAX
39 UNDER ANY PROVISION OF THIS ARTICLE OTHER THAN SUBDIVISION (G) OF
40 SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE.
41 (II) ANY SERVICE, OTHER THAN A GAME OR ENTERTAINMENT SERVICE, UNLESS
42 THAT SERVICE WOULD OTHERWISE BE SUBJECT TO TAX UNDER PARAGRAPHS ONE,
43 SEVEN OR EIGHT OF SUBDIVISION (C) OF SECTION ELEVEN HUNDRED FIVE OF THIS
44 ARTICLE IF THAT SERVICE WERE FURNISHED, PROVIDED OR DELIVERED IN TANGI-
45 BLE FORM OR AS A SERVICE TO TANGIBLE PERSONAL PROPERTY OR REAL PROPERTY.
46 (III) TELEVISION OR RADIO PROGRAMMING WHERE THE PURCHASER DOES NOT
47 SELECT BOTH THE CONTENT AND THE TIME AT WHICH THE CONTENT IS DISPLAYED.
48 (IV) PURCHASER-SELECTED CONTENT SOLD WITH TELEVISION PROGRAMMING FOR A
49 SINGLE CHARGE.
50 (V) COMPUTER SOFTWARE THAT IS NOT PRE-WRITTEN COMPUTER SOFTWARE.
51 S 11. Section 1105 of the tax law is amended by adding a new subdivi-
52 sion (g) to read as follows:
53 (G) RECEIPTS FROM EVERY RETAIL SALE OF A DIGITAL PRODUCT. NOTWITH-
54 STANDING ANY OTHER PROVISION OF LAW, A DIGITAL PRODUCT IS DELIVERED TO
55 THE LOCATION TO WHICH THE DIGITAL PRODUCT IS TRANSMITTED TO THE PURCHAS-
56 ER OR ITS AGENT, OR FROM WHICH THE PURCHASER OR ITS AGENT ACCESSES THE
S. 60--A 125 A. 160--A
1 DIGITAL PRODUCT. FOR PURPOSES OF DETERMINING THE JURISDICTION OR JURIS-
2 DICTIONS IN WHICH THE RETAIL SALE OF A DIGITAL PRODUCT OCCURS, THE
3 FOLLOWING RULES APPLY:
4 (1) RECEIPTS FROM THE RETAIL SALE OF DIGITAL PRODUCTS, OTHER THAN
5 PRE-WRITTEN COMPUTER SOFTWARE THAT IS NOT IN TANGIBLE FORM, ARE SOURCED
6 TO THE PLACE WHERE DELIVERED TO THE PURCHASER. THE FOREGOING RULE IS
7 AMPLIFIED, BUT NOT LIMITED, BY THE FOLLOWING SPECIAL PROVISIONS:
8 (I) IF THE VENDOR KNOWS, EITHER BY INTERNET PROTOCOL ADDRESS OR OTHER
9 SIMILAR OR SUCCESSOR INDICATOR, THE GEOGRAPHIC LOCATION OF THE EQUIPMENT
10 TO WHICH THE DIGITAL PRODUCT IS DELIVERED, THE RETAIL SALE IS SOURCED TO
11 THE JURISDICTION OR JURISDICTIONS IN WHICH THAT EQUIPMENT IS LOCATED;
12 (II) IF THE GEOGRAPHIC LOCATION OF THE EQUIPMENT DESCRIBED IN SUBPARA-
13 GRAPH (I) OF THIS PARAGRAPH IS UNKNOWN, THE RETAIL SALE IS SOURCED TO
14 THE JURISDICTION OR JURISDICTIONS IN WHICH THE BILLING ADDRESS OF THE
15 PURCHASER ASSOCIATED WITH THE METHOD OF PAYMENT FOR THE DIGITAL PRODUCT
16 IS LOCATED;
17 (III) IF THE GEOGRAPHIC LOCATION OF THE EQUIPMENT DESCRIBED IN SUBPAR-
18 AGRAPH (I) AND THE BILLING ADDRESS DESCRIBED IN SUBPARAGRAPH (II) OF
19 THIS PARAGRAPH ARE UNKNOWN, THE RETAIL SALE IS SOURCED TO THE RESIDEN-
20 TIAL OR BUSINESS STREET ADDRESS OF THE PURCHASER, AS APPLICABLE,
21 PROVIDED THAT THE USE OF THAT ADDRESS DOES NOT CONSTITUTE BAD FAITH.
22 (2) RECEIPTS FROM THE RETAIL SALE OF PRE-WRITTEN COMPUTER SOFTWARE
23 THAT IS NOT IN TANGIBLE FORM ARE SOURCED AS FOLLOWS:
24 (I) IF THE RECEIPT FROM THE RETAIL SALE OF THE SOFTWARE IS LESS THAN
25 ONE THOUSAND DOLLARS, OR THE RETAIL SALE OF THE SOFTWARE INCLUDES FEWER
26 THAN TEN SITE LICENSES, OR BOTH, THE RETAIL SALE OF THE SOFTWARE IS
27 SOURCED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH ONE OF THIS
28 SUBDIVISION;
29 (II) IF THE RECEIPT FROM THE RETAIL SALE OF THE SOFTWARE IS ONE THOU-
30 SAND DOLLARS OR MORE, OR THE SOFTWARE INCLUDES TEN OR MORE SITE
31 LICENSES, THE RETAIL SALE OF THE SOFTWARE IS SOURCED IN ACCORDANCE WITH
32 THE PROVISIONS OF PARAGRAPH ONE OF THIS SUBDIVISION, UNLESS THE VENDOR
33 HAS TIMELY RECEIVED FROM THE PURCHASER A PROPERLY COMPLETED MULTIPLE
34 POINTS OF USE CERTIFICATE IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVI-
35 SION (C) OF SECTION ELEVEN HUNDRED THIRTY-TWO OF THIS ARTICLE.
36 S 12. Subdivision (c) of section 1132 of the tax law, as amended by
37 chapter 2 of the laws of 1995, is amended to read as follows:
38 (c) (1) For the purpose of the proper administration of this article
39 and to prevent evasion of the tax hereby imposed, it shall be presumed
40 that all receipts for property, DIGITAL PRODUCT