§ 1515 — Returns

New York § 1515

• Jurisdiction: New York
• Law TAX: Tax
• Art. 33: Franchise Taxes On Insurance Corporations

Text

§ 1515. Returns. (a) Every taxpayer and every other foreign and alien\ninsurance corporation having an employee, including any officer, in this\nstate or having an agent or representative in this state, shall\nannually, on or before the fifteenth day of the third month following\nthe close of its taxable year, for taxable years beginning before\nJanuary first, two thousand sixteen, and on or before the fifteenth day\nof the fourth month following the close of its taxable year, for taxable\nyears beginning on or after January first, two thousand sixteen,\ntransmit to the commissioner a return in a form prescribed by the\ncommissioner setting forth such information as the commissioner may\nprescribe and every taxpayer which ceases to exercise its franchise or\nto be subject to the tax imposed by this article shall transmit to the\ncommissioner a return on the date of such cessation or at such other\ntime as the commissioner may require covering each year or period for\nwhich no return was theretofore filed. A copy of each return required\nunder this subdivision shall also be transmitted to the superintendent\nof financial services at or before the times specified for filing such\nreturns with the commissioner.\n (b) Every taxpayer shall also transmit such other returns and such\nfacts and information as the tax commission may require in the\nadministration of this article.\n (c) The tax commission may grant a reasonable extension of time for\nfiling returns whenever good cause exists. An automatic extension of six\nmonths for the filing of its annual return shall be allowed any\ntaxpayer, if within the time prescribed by subdivision (a), such\ntaxpayer files with the tax commission an application for extension in\nsuch form as said commission may prescribe and pays on or before the\ndate of such filing the amount properly estimated as its tax.\n (d) Every return shall have annexed thereto a certification by the\npresident, vice president, treasurer, assistant treasurer, chief\naccounting officer or any other officer of the taxpayer duly authorized\nso to act to the effect that the statements contained therein are true.\nThe fact that an individual's name is signed on a certification of the\nreturn shall be prima facie evidence that such individual is authorized\nto sign and certify the return on behalf of the corporation.\n (e) Report of changed or corrected federal income or final\ndetermination of refund or credit of retaliatory taxes or other\ncharges.-- (1) If the amount of the life insurance company taxable\nincome (which shall include, in the case of a stock life insurance\ncompany which has an existing policyholders surplus account, the amount\nof direct and indirect distributions during the taxable year to\nshareholders from such account), taxable income of a partnership or\ntaxable income, as the case may be, or alternative minimum taxable\nincome for any year of any taxpayer as returned to the United States\ntreasury department is changed or corrected by the commissioner of\ninternal revenue or other officer of the United States or other\ncompetent authority, such taxpayer shall report such change or corrected\ntaxable income or alternative minimum taxable income within ninety days\n(or one hundred twenty days, in the case of a taxpayer making a combined\nreturn under this article for such year) after the final determination\nof such change or correction or as required by the commissioner, and\nshall concede the accuracy of such determination or state wherein it is\nerroneous. Provided, however, if the taxpayer is a direct or indirect\npartner of a partnership required to report adjustments in accordance\nwith section six hundred fifty-nine-a of this chapter, such taxpayer\nshall also report such adjustments in accordance with section six\nhundred fifty-nine-a of this chapter. Any taxpayer filing an amended\nreturn with such department shall also file within ninety days (or one\nhundred twenty days, in the case of a taxpayer making a combined return\nunder this article for such year) thereafter an amended return with the\ncommissioner which shall contain such information as the commissioner\nshall require. The allowance of a tentative carryback adjustment based\nupon a net operating loss carryback or net capital loss carryback\npursuant to section sixty-four hundred eleven of the internal revenue\ncode or upon an operations loss carryback pursuant to section eight\nhundred ten of the internal revenue code, shall be treated as a final\ndetermination for purposes of this subdivision.\n (2) If a taxpayer has paid taxes to another state pursuant to a\nstatute similar to section one thousand one hundred twelve of the\ninsurance law or any other statute or regulation of another state under\nwhich retaliatory taxes or other charges were imposed or assessed, for\nwhich taxes or charges paid the taxpayer has been allowed a credit\npursuant to subdivision (c) of section fifteen hundred eleven of this\narticle, and thereafter such taxes or charges are adjudged by a court of\ncompetent jurisdiction or other competent authority to have been\nerroneously paid or illegally or unconstitutionally imposed and, after\nexhaustion of all further judicial review there is a final determination\nthat a refund or credit is due the taxpayer, such taxpayer shall report\nsuch final determination, along with the amount refunded or credited or\nto be refunded or credited, within ninety days of its issuance or as\nrequired by the tax commission.\n (f) (1) Any taxpayer, which owns or controls either directly or\nindirectly substantially all the capital stock of one or more other\ncorporations, or substantially all the capital stock of which is owned\nor controlled either directly or indirectly by one or more other\ncorporations or by interests which own or control either directly or\nindirectly substantially all the capital stock of one or more other\ncorporations, (hereinafter referred to in this paragraph as "related\ncorporations"), shall make a combined return with any related\ncorporations if there are substantial intercorporate transactions among\nthe related corporations, regardless of the transfer price for such\nintercorporate transactions. It is not necessary that there be\nsubstantial intercorporate transactions between any one corporation and\nevery other related corporation. It is necessary, however, that there be\nsubstantial intercorporate transactions between the taxpayer and a\nrelated corporation or collectively, a group of such related\ncorporations. The return shall set forth such information as the\ncommissioner may require.\n (2) In determining whether there are substantial intercorporate\ntransactions, the commissioner shall consider and evaluate all\nactivities and transactions of the taxpayer and its related\ncorporations. Activities and transactions that will be considered\ninclude, but are not limited to: (i) manufacturing, acquiring goods or\nproperty, or performing services, for related corporations; (ii) selling\ngoods acquired from related corporations; (iii) financing sales of\nrelated corporations; (iv) performing related customer services using\ncommon facilities and employees for related corporations; (v) selling\npolicies or contracts of insurance for related corporations; (vi)\nreinsuring risks for related corporations; (vii) collecting premiums or\nother consideration for any policy or contract of insurance for related\ncorporations; (viii) incurring expenses that benefit, directly or\nindirectly, one or more related corporations and (ix) transferring\nassets, including such assets as accounts receivable, patents or\ntrademarks from one or more related corporations.\n (3) Except as provided in paragraph one of this subdivision, no\ncombined return covering any corporation shall be required unless the\ncommissioner deems such return necessary because of intercompany\ntransactions or some agreement, understanding, arrangement or\ntransaction referred to in subdivision (g) of this section, in order\nproperly to reflect the tax liability under this article.\n (4)(i) For purposes of this paragraph, the term "closest controlling\nstockholder" means the corporation that indirectly owns or controls over\nfifty percent of the voting stock of a captive REIT or captive RIC, is\nsubject to tax under section fifteen hundred one of this article or\narticle nine-A of this chapter or required to be included in a combined\nreturn or report under this article or article nine-A of this chapter,\nand is the fewest tiers of corporations away in the ownership structure\nfrom the captive REIT or captive RIC. The commissioner is authorized to\nprescribe by regulation or published guidance the criteria for\ndetermining the closest controlling stockholder.\n (ii) A captive REIT or a captive RIC must be included in a combined\nreturn with the corporation that directly owns or controls over fifty\npercent of the voting stock of the captive REIT or captive RIC if that\ncorporation is a life insurance corporation and is subject to tax or\nrequired to be included in a combined return under this article.\n (iii) If over fifty percent of the voting stock of a captive REIT or\ncaptive RIC is not directly owned or controlled by a life insurance\ncorporation that is subject to tax or required to be included in a\ncombined return under this article, and the closest controlling\nstockholder of the captive REIT or captive RIC is a life insurance\ncorporation that is subject to tax or required to be included in a\ncombined return under this article, then the captive REIT or captive RIC\nmust be included in a combined return with the closest controlling\nstockholder under this article.\n (iv) If a captive REIT owns the stock of a qualified REIT subsidiary\n(as defined in paragraph two of subsection (i) of section eight hundred\nfifty-six of the internal revenue code) and the captive REIT is required\nto be included in a combined return under subparagraphs (ii) or (iii) of\nthis paragraph, then the qualified REIT subsidiary must be included in\nany combined return required to be made by the captive REIT that owns\nthe stock of the qualified REIT subsidiary.\n (v) If a captive REIT or a captive RIC is required under this\nparagraph to be included in a combined return with another corporation,\nand that other corporation is required to be included in a combined\nreturn with another corporation under this subdivision, then the captive\nREIT or the captive RIC must be included in that combined return with\nthe other corporation.\n (5)(i) In the case of a combined return, the tax shall be measured by\nthe combined entire net income or combined capital of all the\ncorporations included in the return, including any captive REIT or\ncaptive RIC. In computing combined entire net income intercorporate\ndividends shall be eliminated, in computing combined business and\ninvestment capital intercorporate stockholdings and intercorporate\nbills, notes and accounts receivable and payable and other\nintercorporate indebtedness shall be eliminated and in computing\ncombined subsidiary capital intercorporate stockholdings shall be\neliminated. No taxpayer subject to the tax imposed by section fifteen\nhundred two-a or section fifteen hundred two-b of this article may be\nrequired or permitted to be included in a combined return.\n (ii) In the case of a captive REIT required under this subdivision to\nbe included in a combined return, "entire net income" means "real estate\ninvestment trust taxable income" as defined in paragraph two of\nsubdivision (b) of section eight hundred fifty-seven (as modified by\nsection eight hundred fifty-eight) of the internal revenue code, plus\nthe amount taxable under paragraph three of subdivision (b) of section\neight hundred fifty-seven of that code, subject to the modifications\nrequired by section fifteen hundred three of this article. In the case\nof a captive RIC required under this subdivision to be included in a\ncombined return, "entire net income" means "investment company taxable\nincome" as defined in paragraph two of subdivision (b) of section eight\nhundred fifty-two (as modified by section eight hundred fifty-five) of\nthe internal revenue code, plus the amount taxable under paragraph three\nof subdivision (b) of section eight hundred fifty-two of that code,\nsubject to the modifications required by section fifteen hundred three\nof this article. However, the deduction under the internal revenue code\nfor dividends paid by the captive REIT or captive RIC to any member of\nthe affiliated group that includes the corporation that directly or\nindirectly owns over fifty percent of the voting stock of the captive\nREIT or captive RIC shall not be allowed. The term "affiliated group"\nmeans "affiliated group" as defined in section fifteen hundred four of\nthe internal revenue code, but without regard to the exceptions provided\nfor in subsection (b) of that section.\n (g) In case it shall appear to the tax commission that any agreement,\nunderstanding or arrangement exists between the taxpayer and any other\ncorporation, or any person or firm whereby the activity, business,\nincome or capital of the taxpayer within the state is improperly or\ninaccurately reflected, the tax commission is authorized and empowered\nin its discretion and in such manner as it may determine, to adjust\nitems of income, deductions and capital and to eliminate items entering\ninto the computing of any allocation percentage, provided only that\nincome directly traceable thereto be also excluded from entire net\nincome, so as equitably to determine the tax. Where (a) any taxpayer\nconducts its activity or business under any agreement, arrangement or\nunderstanding in such manner as either directly or indirectly to benefit\nits members or stockholders, or any of them, or any person or persons\ndirectly or indirectly interested in such activity or business, by\nentering into any transaction at more or less than a fair price which,\nbut for such agreement, arrangement or understanding, might have been\npaid or received therefor, or (b) any taxpayer, a substantial portion of\nwhose capital stock is owned either directly or indirectly by another\ncorporation, enters into any transaction with such other corporation on\nsuch terms as to create an improper loss or net income, the tax\ncommission may include in entire net income the fair profits, which, but\nfor such agreement, arrangement or understanding, the taxpayer might\nhave derived from such transaction.\n