§ 184 — Additional franchise tax on transportation and transmission corporations and associations

§ 184. Additional franchise tax on transportation and transmission\ncorporations and associations.-- 1. The term "corporation" as used in\nthis section shall include an association, within the meaning of\nparagraph three of subsection (a) of section seventy-seven hundred one\nof the internal revenue code (including a limited liability company), a\npublicly traded partnership treated as a corporation for purposes of the\ninternal revenue code pursuant to section seventy-seven hundred four\nthereof.\n Every corporation, joint-stock company or association formed for or\nprincipally engaged in the conduct of canal, steamboat, ferry (except a\nferry company operating between any of the boroughs of the city of New\nYork under a lease granted by the city), express, navigation, pipe line,\ntransfer, baggage express, omnibus, taxicab, telegraph or local\ntelephone business, or formed for or principally engaged in the conduct\nof two or more of such businesses, and every corporation, joint-stock\ncompany or association formed for or principally engaged in the conduct\nof surface railroad, whether or not operated by steam, subway railroad,\nelevated railroad, palace car, sleeping car or trucking business or\nformed for or principally engaged in the conduct of two or more such\nbusinesses and which has made an election pursuant to subdivision ten of\nsection one hundred eighty-three of this article, and every other\ncorporation, joint-stock company or association formed for or\nprincipally engaged in the conduct of a transportation or transmission\nbusiness (other than a telephone business), except a corporation,\njoint-stock company or association formed for or principally engaged in\nthe conduct of a surface railroad, whether or not operated by steam,\nsubway railroad, elevated railroad, palace car, sleeping car or trucking\nbusiness or formed for or principally engaged in the conduct of two or\nmore of such businesses and which has not made the election provided for\nin subdivision ten of section one hundred eighty-three of this article,\nand, except a corporation, joint-stock company or association\nprincipally engaged in the conduct of aviation (including air freight\nforwarders acting as principal and like indirect air carriers) and\nexcept a corporation principally engaged in providing telecommunication\nservices between aircraft and dispatcher, aircraft and air traffic\ncontrol or ground station and ground station (or any combination of the\nforegoing), at least ninety percent of the voting stock of which\ncorporation is owned, directly or indirectly, by air carriers and which\ncorporation's principal function is to fulfill the requirements of (i)\nthe federal aviation administration (or the successor thereto) or (ii)\nthe international civil aviation organization (or the successor\nthereto), relating to the existence of a communication system between\naircraft and dispatcher, aircraft and air traffic control or ground\nstation and ground station (or any combination of the foregoing) for the\npurposes of air safety and navigation and for the privilege of\nexercising its corporate franchise, or of doing business, or of\nemploying capital, or of owning or leasing property in this state in a\ncorporate or organized capacity, or maintaining an office in this state,\nshall pay a franchise tax which shall be equal to three-eighths of one\npercent for taxable years commencing after two thousand, upon its gross\nearnings from all sources within this state; except that, for taxable\nyears commencing on or after January first, nineteen hundred ninety,\nevery corporation, joint-stock company or association formed for or\nprincipally engaged in the conduct of local telephone business, or\ntelegraph business shall pay a franchise tax which shall be equal to\nthree-eighths of one percent for taxable years commencing after two\nthousand, upon its gross earnings from all sources within this state,\nexcept that a corporation, joint-stock company or association formed for\nor principally engaged in the conduct of a local telephone business\nshall exclude the following earnings (but not in any event earnings\nderived by such taxpayer from the provision of carrier access services)\nderived by such taxpayer from sales for ultimate consumption of\ntelecommunications service to its customers (i) thirty percent of\nseparately charged intra-LATA toll service (which shall also include\ninterregion regional calling plan service) and (ii) one hundred percent\nof separately charged inter-LATA, interstate or international\ntelecommunications service; and except that corporations, joint-stock\ncompanies or associations formed for or principally engaged in the\nconduct of canal, steamboat, ferry (except a ferry company operating\nbetween any of the boroughs of the city of New York under a lease\ngranted by the city), navigation or any corporation formed for or\nprincipally engaged in the operation of vessels, shall pay a franchise\ntax which shall be equal to three-quarters of one per centum upon its\ngross earnings from all sources within this state, excluding earnings\nderived from business of an interstate or foreign character; except that\nfor taxable years beginning in nineteen hundred ninety-seven or\nthereafter, in the case of a corporation, joint-stock company or\nassociation which, with respect to taxable years beginning after\nnineteen hundred ninety-seven, has made an election pursuant to\nsubdivision ten of section one hundred eighty-three of this article and\nwhich is formed for or principally engaged in the conduct of surface\nrailroad, whether or not operated by steam, subway railroad, elevated\nrailroad, palace car, sleeping car or trucking business or formed for or\nprincipally engaged in the conduct of two or more of such businesses,\nsuch corporation, joint-stock company or association shall pay a\nfranchise tax which shall be equal to three-eighths of one percent for\ntaxable years commencing after two thousand, upon its gross earnings\nfrom all sources within this state, provided that in the case of a\ncorporation, joint-stock company or association formed for or\nprincipally engaged in the conduct of surface railroad, whether or not\noperated by steam, subway railroad, elevated railroad, palace car or\nsleeping car business, or formed for or principally engaged in the\nconduct of two or more of such businesses, such gross earnings shall not\ninclude earnings derived from business of an interstate or foreign\ncharacter.\n Provided, however, with respect to railroad, elevated railroad, palace\ncar or sleeping car business or any other corporation formed for or\nprincipally engaged in the conduct of a railroad business and canal,\nsteamboat, ferry (except a ferry company operating between any of the\nboroughs of the city of New York under a lease granted by the city),\nnavigation or any corporation formed for or principally engaged in the\noperation of vessels where the gross earnings from such transportation\nbusiness both originating and terminating within this state and\ntraversing both this state and another state or states or country shall\nbe subject to the franchise tax imposed by this section (except where\nsuch corporation, joint-stock company or association is formed for or\nprincipally engaged in the conduct of a railroad (including surface\nrailroad, whether or not operated by steam, subway railroad or elevated\nrailroad), palace car or sleeping car business or formed for or\nprincipally engaged in the conduct of two or more of such businesses,\nand has not made the election provided for under subdivision ten of\nsection one hundred eighty-three of this article) and such earnings\nshall be allocated to this state in the same ratio that the mileage\nwithin the state bears to the total mileage of such business. Provided,\nfurther, a corporation, joint-stock company or association formed for or\nprincipally engaged in the transportation, transmission or distribution\nof gas, electricity or steam shall not be subject to tax under this\nsection or section one hundred eighty-three of this article.\n The term "local telephone business" means the provision or furnishing\nof telecommunication services for hire wherein the service furnished by\nthe provider thereof consists of carrier access service or the service\noriginates and terminates within the same local access and transport\narea ("LATA"), a local access and transport area being that geographic\narea as established and approved, and as so set and in existence on July\nfirst, nineteen hundred ninety-four, pursuant to the modification of\nfinal judgment in United States v. Western Electric Company (civil\naction no. 82-0192) in the United States district court for the District\nof Columbia or within the LATA-like Rochester non-associated independent\narea.\n The term "telecommunication services" shall have the meaning ascribed\nto such term in section one hundred eighty-six-e of this article.\n 1-a. Where a taxpayer is a partner, member or associate of a publicly\ntraded partnership or an association which is subject to the tax imposed\nunder this section, the amount to be included in such taxpayer's gross\nearnings with respect to such partnership or association shall be the\namount received with respect to such partnership or association which is\nrequired to be reported as dividends to the United States treasury\ndepartment.\n 2. (a) During the period that the state tax on motor fuel, computed\nwithout regard to any reimbursement allowable under paragraph (d) of\nsubdivision three of section two hundred eighty-nine-c of this chapter,\nexceeds two cents per gallon the corporations herein classed as\n"taxicab" and "omnibus", other than corporations described in paragraph\n(b) of this subdivision, shall be taxed under the provisions of article\nnine-a of the tax law and as other business corporations are taxed and\nnot upon their gross receipts.\n (b) (1) A corporation classed as a "taxicab" or "omnibus",\n (i) which is organized, incorporated or formed under the laws of any\nother state, country or sovereignty, and\n (ii) which neither owns nor leases property in this state in a\ncorporate or organized capacity, nor\n (iii) maintains an office in this state in a corporate or organized\ncapacity, but\n (iv) which is doing business or employing capital in this state by\nconducting at least one but fewer than twelve trips into this state\nduring the calendar year, shall not be taxed under the provisions of\nthis article. If the only property a corporation owns or leases in this\nstate is a vehicle or vehicles used to conduct trips, it shall not be\nconsidered, for purposes of clause (ii) of this subparagraph, to be\nowning or leasing property in this state.\n (2) For purposes of this subdivision, a corporation classed as a\n"taxicab" or "omnibus" shall be considered to be conducting a trip into\nNew York state when one of its vehicles enters New York state and\ntransports passengers to, from, or to and from a location in New York\nstate. A corporation shall not be considered to be conducting a trip\ninto New York state if its vehicle only makes incidental stops at\nlocations in the state while in transit from a location outside New York\nstate to another location outside New York state. The number of trips a\ncorporation conducts into New York state shall be calculated by\ndetermining the number of trips each vehicle owned, leased or operated\nby the corporation conducts into New York state and adding those numbers\ntogether.\n 3. Any corporation, joint-stock company or association formed for or\nprincipally engaged in the conduct of subway railroad, elevated\nrailroad, or surface railroad not operated by steam, business, whose\nproperty is leased to another railroad corporation, shall only be\nrequired under this section to pay an annual tax at the rate of four and\none-half per centum upon the dividends paid during the year ending on\nthe thirty-first day of December in excess of four per centum upon the\namount of its capital stock, provided, however, that for the year ending\non the thirty-first day of December nineteen hundred seventy-six, as\ndescribed in subdivision two of section one hundred ninety-two of this\nchapter, the tax shall be paid upon dividends paid during the months of\nJuly through December of such year in excess of two per centum upon the\namount of its capital stock, except that where the property leased is\noperated by a receiver and the gross earnings are not included with the\ngross earnings of the lessee for the purposes of taxation under this\nsection, then such receiver shall be required to pay the tax upon gross\nearnings as hereinbefore provided.\n 4. Allocation of gross earnings from transportation and transmission\nservices.--(a) General. A transportation or transmission corporation\nshall determine its gross earnings from transportation and transmission\nservices within this state (except as otherwise provided for in this\nsubdivision) by multiplying its gross earnings from transportation and\ntransmission within and without the state by a fraction, the numerator\nof which is the taxpayer's mileage within this state and the denominator\nof which is the taxpayer's mileage within and without this state during\nthe period covered by the report or reports required by this chapter.\n (b) Corporations engaged in the operation of vessels. A corporation\nprincipally engaged in the operation of vessels shall determine its\ngross earnings from transportation services within this state during the\nperiod covered by the report or reports required by this chapter by\nmultiplying its gross earnings from transportation services within and\nwithout this state by a percentage which represents the ratio of the\naggregate number of working days of the vessels it owns or leases in all\nnavigable lakes, rivers, streams and waters within this state and in New\nYork territorial waters to the aggregate number of working days of all\nthe vessels it owns or leases during such period.\n (c) Telephone and telegraph corporations. A telephone or telegraph\ncorporation shall determine its gross earnings from transmission\nservices within this state during the period covered by the report or\nreports required by this chapter by totaling its gross operating revenue\nfrom transmission services performed wholly within this state plus the\nportion of revenue from interstate and foreign transmission service\nattributable to this state during such report period.\n (d) All other gross earnings, if any, shall be allocated to this state\nin the manner prescribed by rules and regulations promulgated by the tax\ncommission.\n (e) With respect to other types of transportation and transmission\ncorporations or where the tax commission decides that with respect to a\ncertain corporation the method prescribed above does not fairly and\nequitably reflect gross earnings from all sources within this state, the\ntax commission shall prescribe methods of allocation or apportionment\nwhich fairly and equitably reflect gross earnings from all sources\nwithin this state. Also, the tax commission may, in order to properly\nreflect gross earnings, determine the report period in which any item of\ngross earnings shall be included without regard to the method of\naccounting employed by a corporation taxable hereunder.\n 7-a. A railroad, palace car or sleeping car corporation, navigation,\ncanal, ferry (except a ferry company operating between any of the\nboroughs of the city of New York under a lease granted by the city),\nsteamboat, or any other corporation formed for or principally engaged in\nthe operation of vessels whose only activity in this state is (i) the\nmaintenance of an office in this state and for the employing of capital\nin this state and (ii) the use of property exclusively in interstate or\nforeign commerce, shall not be subject to the tax imposed by this\nsection.\n