§ 1510 — Additional franchise tax on insurance corporations

§ 1510. Additional franchise tax on insurance corporations. (a)\nDomestic, foreign and alien insurance corporations except life insurance\ncorporations. Except as hereinafter provided, for taxable years\nbeginning before January first, two thousand three every domestic\ninsurance corporation, every foreign insurance corporation and every\nalien insurance corporation, other than such corporations transacting\nthe business of life insurance, (1) authorized to transact business in\nthis state under a certificate of authority from the superintendent of\nfinancial services or (2) which is a risk retention group as defined in\nsubsection (n) of section five thousand nine hundred two of the\ninsurance law, shall, for the privilege of exercising corporate\nfranchises or for carrying on business in a corporate or organized\ncapacity within this state, and in addition to any other taxes imposed\nfor such privilege, pay a tax on all gross direct premiums, less return\npremiums thereon, written on risks located or resident in this state.\nThe rate of tax imposed by this subdivision shall be two percent on\npremiums written on or after January first, nineteen hundred\nseventy-four and before January first, nineteen hundred seventy-five,\none and nine-tenths percent on premiums written on or after January\nfirst, nineteen hundred seventy-five and before January first, nineteen\nhundred seventy-six, one and eight-tenths percent on premiums written on\nor after January first, nineteen hundred seventy-six and before January\nfirst, nineteen hundred seventy-eight, one and two-tenths percent on\npremiums written on or after January first, nineteen hundred\nseventy-eight and before January first, nineteen hundred ninety-two and\none and three-tenths percent on premiums written on and after such date.\nProvided, however, that the rate of tax imposed by this subdivision on\nall gross direct premiums, less return premiums thereon, for accident\nand health insurance contracts shall be one and six-tenths percent for\nsuch premiums written on or after January first, nineteen hundred\nseventy-four and before January first, nineteen hundred seventy-eight,\nand one percent for such premiums written on or after January first,\nnineteen hundred seventy-eight.\n (b) Domestic, foreign and alien life insurance corporations. (1)\nExcept as hereinafter provided, every domestic life insurance\ncorporation, and every foreign and alien life insurance corporation\nauthorized to transact business in this state under a certificate of\nauthority from the superintendent of financial services, shall, for the\nprivilege of exercising corporate franchises or for carrying on business\nin a corporate or organized capacity within this state, and in addition\nto any other taxes imposed for such privilege, pay a tax on all gross\ndirect premiums, less return premiums thereon, received in cash or\notherwise on risks resident in this state, including supplemental\ncontracts for total and permanent disability benefits and accidental\ndeath benefits. The rate of such tax shall be (i) one and six-tenths\npercent on such premiums received on or after January first, nineteen\nhundred seventy-four and before January first, nineteen hundred\nseventy-eight, (ii) one percent on such premiums received on or after\nJanuary first, nineteen hundred seventy-eight and before January first,\nnineteen hundred eighty-seven, (iii) eight-tenths percent on such\npremiums received on or after January first, nineteen hundred\neighty-seven and before January first, nineteen hundred ninety-eight,\nand (iv) seven-tenths percent on such premiums received on or after\nJanuary first, nineteen hundred ninety-eight.\n (2) Every such life insurance corporation which shall obtain a\ncertificate of authority to transact business in this state or a renewal\nof such certificate from the superintendent of financial services shall,\nupon the expiration of such certificate for any cause or upon its\nceasing to transact new business in this state, continue to pay a tax\nupon its business remaining in force in this state at the rate and as\ncomputed in this subdivision.\n (c) Determination of direct premiums--general provisions. (1) The term\n"premium" includes all amounts received as consideration for insurance\ncontracts, reinsurance contracts or contracts with health maintenance\norganizations for health services, other than for annuity contracts, and\nshall include premium deposits, assessments, policy fees, membership\nfees, any separate costs by carriers assessed upon their policyholders\nand every other compensation for such contract. In ascertaining the\namount of direct premiums upon which a tax is payable under this section\nthere shall be first determined the amount of total gross premiums or\ndeposit premiums or assessments, less returns thereon, on all policies,\ncertificates, renewals, policies subsequently cancelled, insurance and\nreinsurance executed, issued or delivered on property or risks located\nor resident in this state, including premiums for reinsurance assumed,\nand also including premiums written, procured or received in this state\non business which cannot specifically be allocated or apportioned and\nreported as taxable premiums or which have been used as a measure of a\ntax on business of any other state or states. Provided however, in the\ncase of special risk premiums, direct premiums shall include only those\npremiums written, procured or received in this state on property or\nrisks located or resident in this state. The reporting of premiums for\nthe purpose of the tax imposed by this section shall be on a written\nbasis or on a paid-for basis consistent with the basis required by the\nannual statement filed with the superintendent of financial services\npursuant to section three hundred seven of the insurance law.\n (2) The term "gross direct premiums," as used in this section, shall\nnot include premiums for policies issued pursuant to section four\nthousand two hundred thirty-six of the insurance law and premiums for\ninsurance upon hulls, freights, or disbursements, or upon goods, wares,\nmerchandise and all other personal property and interests therein, in\nthe course of exportation from, importation into any country, or\ntransportation coastwise, including transportation by land or water from\npoint of origin to final destination in respect to, appertaining to, or\nin connection with, any and all risks or perils of navigation, transit\nor transportation, and while being prepared for, and while awaiting\nshipment, and during any delays, storage, transshipment or reshipment\nincident thereto, including war risks and marine builder's risks. The\nterm "gross direct premiums," as used in this section, also shall not\ninclude any premiums that this state is prohibited from taxing pursuant\nto federal law, including (i) subsection (f) of section 8909 of title 5\nof the united states code, (ii) subsection (g) of section 1395w-24 of\ntitle 42 of the united states code, (iii) subsection (g) of section\n1395w-112 of title 42 of the United States code, and (iv) subparagraph\n(B) of paragraph (4) of subsection (k) of section 1395mm of title 42 of\nthe United States code.\n (3) After determining the amount of total gross premiums, less returns\nthereon, as hereinbefore provided, there shall be deducted the following\nitems:\n (A) Such premiums, less return premiums thereon, which have been\nreceived by way of reinsurance from corporations or other insurers\nauthorized to transact business in this state;\n (B) Such premiums, less return premiums thereon, which have been\nreceived by way of reinsurance from corporations or other insurers not\nauthorized to transact business in this state to the extent that such\npremiums relate to transactions (i) that are authorized by section two\nthousand one hundred five of the insurance law with respect to excess\nline insurance, and (ii) with respect to which sums are payable by\nlicensed excess line brokers to the superintendent of financial services\npursuant to section two thousand one hundred eighteen of the insurance\nlaw; and\n (C) Dividends on such direct business, including unused or unabsorbed\nportions of premium deposits paid or credited to policyholders, but not\nincluding deferred dividends paid in cash to policyholders on maturing\npolicies, nor cash surrender values.\n (4) In determining the amount of direct premiums taxable in this\nstate, all such premiums written, procured or received in this state\nshall be deemed written on property or risks located or resident in this\nstate except such premiums as are properly allocated or apportioned and\nreported as taxable premiums or which have been used as a measure of a\ntax of any other state or states, provided however, in the case of\nspecial risk premiums, direct premiums shall include only those premiums\nwritten, procured or received in this state on property or risks located\nor resident in this state.\n (e) Powers and duties of the superintendent of financial services.\n (1) The superintendent of financial services shall, on behalf of the\ncommissioner, have the power, duty and responsibility to examine returns\nof an insurance corporation filed with him pursuant to section fifteen\nhundred fifteen and, together with any other information within his\npossession or that may come into his possession, to ascertain the\ncorrect amount of tax imposed under this section of any insurance\ncorporation. For the purpose of ascertaining the correctness of any such\ntax imposed under this section or for the purpose of making an estimate\nof the tax liability under this section of any insurance corporation,\nthe superintendent shall have the power to examine or cause to have\nexamined by any agent or representative designated by him for that\npurpose, any books, papers, records or memoranda bearing upon the\nmatters required to be included in the return.\n (2) If the superintendent of financial services ascertains that the\namount of tax imposed under this section as shown on the return of any\ninsurance corporation is less than the amount of tax disclosed by his or\nher examination, he or she shall propose, in writing, to the\ncommissioner the issuance of a notice of deficiency for the amount due.\nIf an insurance corporation fails to file a return with the\nsuperintendent of financial services within the time required for the\nfiling of such return (with regard to any extension of time for the\nfiling thereof), the superintendent of financial services shall make an\nestimate of the amount of tax due for the period in respect to which\nsuch insurance corporation failed to file the return. The estimate shall\nbe made from any available information which is in the possession or may\ncome into the possession of the superintendent of financial services and\nhe shall propose, in writing, to the commissioner the issuance of a\nnotice of deficiency for the amount of such estimated tax. Any proposal\npursuant to this paragraph shall set forth the basis thereof and the\ndetails of its computation.\n (3) The commissioner shall, on receipt of a proposal from the\nsuperintendent of financial services pursuant to paragraph two of this\nsubdivision, review such proposal and if satisfied as to the correctness\nthereof shall take appropriate action under this chapter for the\nassessment and collection of the amount of tax, together with interest\nand penalties, either shown by such proposal to be due or which the\ncommissioner ascertains to be due. The provisions of this subdivision\nshall not in any way be deemed to limit the power of the commissioner to\nconduct such examination, or investigation as it deems necessary in\norder to carry out its duties with respect to the taxes imposed under\nthis section.\n (4) Subject to the consent of the superintendent of financial services\nand notwithstanding any other provisions of law to the contrary, the\ncommissioner may delegate such other of his or her powers and duties\nwith respect to the administration and collection of the taxes imposed\nunder this section to the superintendent of financial services, as the\ncommissioner finds necessary in order to facilitate such administration\nand collection.\n