§ 209-B — Metropolitan transportation business tax surcharge

§ 209-B. Metropolitan transportation business tax surcharge. 1. (a)\nFor the privilege of exercising its corporate franchise, or of doing\nbusiness, or of employing capital, or of owning or leasing property in a\ncorporate or organized capacity, or of maintaining an office, or of\nderiving receipts from activity in the metropolitan commuter\ntransportation district, for all or any part of its taxable year, there\nis hereby imposed on every corporation, other than a New York S\ncorporation, subject to tax under section two hundred nine of this\narticle, or any receiver, referee, trustee, assignee or other fiduciary,\nor any officer or agent appointed by any court, who conducts the\nbusiness of any such corporation, a tax surcharge, in addition to the\ntax imposed under section two hundred nine of this article, to be\ncomputed at the rate of seventeen percent of the tax imposed under such\nsection for such taxable years or any part of such taxable years ending\non or after December thirty-first, nineteen hundred eighty-three and\nbefore January first, two thousand fifteen after the deduction of any\ncredits otherwise allowable under this article, at the rate of\ntwenty-five and six-tenths percent of the tax imposed under such section\nfor taxable years beginning on or after January first, two thousand\nfifteen and before January first, two thousand sixteen before the\ndeduction of any credits otherwise allowable under this article, at the\nrate determined by the commissioner pursuant to paragraph (f) of this\nsubdivision of the tax imposed under such section, for taxable years\nbeginning on or after January first, two thousand sixteen and before\nJanuary first, two thousand twenty-four before the deduction of any\ncredits otherwise allowable under this article, and at the rate of\nthirty percent of the tax imposed under such section for taxable years\nbeginning on or after January first, two thousand twenty-four before the\ndeduction of any credits otherwise allowable under this article.\nHowever, such rate of tax surcharge shall be applied only to that\nportion of the tax imposed under section two hundred nine of this\narticle before the deduction of any credits otherwise allowable under\nthis article which is attributable to the taxpayer's business activity\ncarried on within the metropolitan commuter transportation district; and\nprovided, further, the surcharge computed on a combined report shall\ninclude a surcharge on the fixed dollar minimum tax for each member of\nthe combined group subject to the surcharge under this subdivision.\n (b) A corporation is deriving receipts from activity in the\nmetropolitan commuter transportation district if it has receipts within\nthe metropolitan commuter transportation district of one million dollars\nor more in a taxable year. For purposes of this section, the term\n"receipts" means the receipts that are subject to the apportionment\nrules set forth in section two hundred ten-A of this article, and the\nterm "receipts within the metropolitan commuter transportation district"\nmeans the receipts included in the numerator of the apportionment factor\ndetermined under subdivision two of this section. For purposes of this\nparagraph, receipts from processing credit card transactions for\nmerchants include merchant discount fees received by the corporation.\n (c) A corporation is doing business in the metropolitan commuter\ntransportation district if (i) it has issued credit cards to one\nthousand or more customers who have a mailing address within the\nmetropolitan commuter transportation district as of the last day of its\ntaxable year, (ii) it has merchant customer contracts with merchants and\nthe total number of locations covered by those contracts equals one\nthousand or more locations in the metropolitan commuter transportation\ndistrict to whom the corporation remitted payments for credit card\ntransactions during the taxable year, or (iii) the sum of the number of\ncustomers described in subparagraph (i) of this paragraph plus the\nnumber of locations covered by its contracts described in subparagraph\n(ii) of this paragraph equals one thousand or more. As used in this\nparagraph, the term "credit card" includes bank, credit, travel and\nentertainment cards.\n (d)(i) A corporation with less than one million dollars but at least\nten thousand dollars of receipts within the metropolitan commuter\ntransportation district in a taxable year that is part of a unitary\ngroup that meets the ownership test under section two hundred ten-C of\nthis article is deriving receipts from activity in the metropolitan\ncommuter transportation district if the receipts within the metropolitan\ncommuter transportation district of the members of the unitary group\nthat have at least ten thousand dollars of receipts within the\nmetropolitan commuter transportation district in the aggregate meet the\nthreshold set forth in paragraph (b) of this subdivision.\n (ii) A corporation that does not meet any of the thresholds set forth\nin paragraph (c) of this subdivision but has at least ten customers, or\nlocations, or customers and locations, as described in paragraph (c),\nand is part of a unitary group that meets the ownership test under\nsection two hundred ten-C of this article is doing business in the\nmetropolitan commuter transportation district if the number of\ncustomers, locations, or customers and locations, within the\nmetropolitan commuter transportation district of the members of the\nunitary group that have at least ten customers, locations, or customers\nand locations, within the metropolitan commuter transportation district\nin the aggregate meets any of the thresholds set forth in paragraph (c)\nof this subdivision.\n (iii) For purposes of this paragraph, any corporation described in\nparagraph (c) of subdivision two of section two hundred ten-C of this\narticle shall not be considered.\n (e) At the end of each year, the commissioner shall review the\ncumulative percentage change in the consumer price index. The\ncommissioner shall adjust the receipt thresholds set forth in this\nsubdivision if the consumer price index has changed by ten percent or\nmore since the January first, two thousand fifteen or since the date\nthat the thresholds were last adjusted under this subdivision. The\nthresholds shall be adjusted to reflect that cumulative percentage\nchange in the consumer price index. The adjusted thresholds shall be\nrounded to the nearest one thousand dollars. As used in this paragraph,\n"consumer price index" means the consumer price index for all urban\nconsumers (CPI-U) available from the bureau of labor statistics of the\nUnited States department of labor. Any adjustment shall apply to tax\nperiods that begin after the adjustment is made.\n (f) The commissioner shall determine the rate of tax for taxable years\nbeginning on or after January first, two thousand sixteen and before\nJanuary first, two thousand twenty-four by adjusting the rate for\ntaxable years beginning on or after January first, two thousand fifteen\nand before January first, two thousand sixteen as necessary to ensure\nthat the receipts attributable to such surcharge, as impacted by part A\nof chapter fifty-nine of the laws of two thousand fourteen, will meet\nand not exceed the financial projections for state fiscal year two\nthousand sixteen-two thousand seventeen, as reflected in state fiscal\nyear two thousand fifteen-two thousand sixteen enacted budget. The\ncommissioner shall annually determine the rate thereafter, for taxable\nyears beginning before January first, two thousand twenty-four, using\nthe financial projections for the state fiscal year that commences in\nthe year for which the rate is to be set as reflected in the enacted\nbudget for the fiscal year commencing on the previous April first.\n 2. The portion of the taxpayer's business activity carried on within\nthe metropolitan commuter transportation district shall be determined by\nmultiplying the tax imposed under section two hundred nine of this\narticle before the deduction of any credits otherwise allowable under\nthis article by a percentage to be determined as follows:\n (a) ascertaining the percentage which the average value of the\ntaxpayer's real and tangible personal property, whether owned or rented\nto it, within the metropolitan commuter transportation district during\nthe period covered by its report bears to the average value of all the\ntaxpayer's real and tangible personal property, whether owned or rented\nto it, within the state during such period; provided that the term\n"value of the taxpayer's real and tangible personal property" shall mean\nthe adjusted bases of such properties for federal income tax purposes\n(except that in the case of rented property such value shall mean the\nproduct of (i) eight and (ii) the gross rents payable for the rental of\nsuch property during the taxable year); provided, however, that the\ntaxpayer may make a one-time, revocable election to use fair market\nvalue as the value of all of its real and tangible personal property,\nprovided that such election is made on or before the due date for filing\na report under section two hundred eleven for the taxpayer's first\ntaxable year commencing on or after January first, two thousand fifteen\nand provided that such election shall not apply to any taxable year with\nrespect to which the taxpayer is included on a combined report unless\neach of the taxpayers included on such report has made such an election\nwhich remains in effect for such year;\n (b) ascertaining the percentage of the taxpayer's receipts within the\nmetropolitan commuter transportation district pursuant to the method\nprescribed in section two hundred ten-A of this article, except that\n (i) the numerator of the apportionment fraction under such section two\nhundred ten-A shall be the denominator of the apportionment fraction\nunder this paragraph,\n (ii) the numerator of the apportionment fraction under this paragraph\nshall be determined by applying the rules in such section two hundred\nten-A relating to the numerator of the apportionment fraction as if\nthose rules referenced the metropolitan commuter transportation district\nrather than this state,\n (iii) to the extent that a provision in such section two hundred ten-A\nprovides that eight percent of the receipts specified in that provision\nshould be included in the numerator of the apportionment fraction,\nninety percent of such eight percent amount shall be considered within\nthe metropolitan commuter transportation district and one hundred\npercent of such eight percent amount shall be considered to be within\nthe state, and\n (iv) to the extent that a provision in such section two hundred ten-A\nof this article provides that the receipts specified in that provision\nshall not be included in the numerator of the apportionment fraction\nunder such section two hundred ten-A, such receipts shall not be\nincluded in determining the portion of the taxpayer's business activity\ncarried on within the metropolitan commuter transportation district;\n (c) ascertaining the percentage of the total wages, salaries and other\npersonal service compensation, similarly computed, during such period,\nof employees within the metropolitan commuter transportation district,\nexcept general executive officers, to the total wages, salaries and\nother personal service compensation, similarly computed, during such\nperiod, of all the taxpayer's employees within the state, except general\nexecutive officers; and\n (d) adding together the percentages so determined and dividing the\nresult by the number of percentages.\n 3. A corporation shall not be deemed to be doing business, employing\ncapital, owning or leasing property, or maintaining an office, or\nderiving receipts from activity in the metropolitan commuter\ntransportation district, for the purposes of this section, by reason of\n(a) the maintenance of cash balances with banks or trust companies in\nthe metropolitan commuter transportation district, or (b) the ownership\nof shares of stock or securities kept in the metropolitan commuter\ntransportation district, if kept in a safe deposit box, safe, vault or\nother receptacle rented for the purpose, or if pledged as collateral\nsecurity, or if deposited with one or more banks or trust companies, or\nbrokers who are members of a recognized security exchange, in\nsafekeeping or custody accounts, or (c) the taking of any action by any\nsuch bank or trust company or broker, which is incidental to the\nrendering of safekeeping or custodian service to such corporation, or\n(d) the maintenance of an office in the metropolitan commuter\ntransportation district by one or more officers or directors of the\ncorporation who are not employees of the corporation if the corporation\notherwise is not doing business in the metropolitan commuter\ntransportation district, and does not employ capital or own or lease\nproperty in the metropolitan commuter transportation district, or (e)\nthe keeping of books or records of a corporation in the metropolitan\ncommuter transportation district if such books or records are not kept\nby employees of such corporation and such corporation does not otherwise\ndo business, employ capital, own or lease property or maintain an office\nin the metropolitan commuter transportation district, or (f) any\ncombination of the foregoing activities.\n 4. Notwithstanding any contrary provisions of state or local law, the\ntax surcharge imposed under this section shall not be allowed as a\ndeduction in the computation of any tax imposed under this chapter.\nFurthermore, the credits otherwise allowable under this article shall\nnot be allowed against the tax surcharge imposed by this section.\n 5. The provisions concerning reports under sections two hundred ten-C\nand two hundred eleven shall be applicable to this section, except that\nfor purposes of an automatic extension for six months for filing a\nreport covering the tax surcharge imposed by this section, such\nautomatic extension shall be allowed only if a taxpayer files with the\ncommissioner an application for extension in such form as said\ncommissioner may prescribe by regulation and pays on or before the date\nof such filing in addition to any other amounts required under this\narticle, either ninety percent of the entire tax surcharge required to\nbe paid under this section for the applicable period, or not less than\nthe tax surcharge shown on the taxpayer's return for the preceding\ntaxable year, if such preceding taxable year was a taxable year of\ntwelve months; provided, however, that in no event shall such amount be\nless than the product of the following three amounts: (1) the tax\nsurcharge rate in effect for the taxable year pursuant to subdivision\none of this section, (2) the fixed dollar minimum applicable to such\ntaxpayer as determined under paragraph (d) of subdivision one of section\ntwo hundred ten of this chapter for the taxable year, and (3) the\npercentage determined under subdivision two of this section for the\npreceding taxable year, unless the taxpayer was not subject to the tax\nsurcharge imposed pursuant to this section with respect to such year, in\nwhich case such percentage shall be deemed to be one hundred percent.\nThe tax surcharge imposed by this section shall be payable to the\ncommissioner in full at the time the report is required to be filed, and\nsuch tax surcharge or the balance thereof, imposed on any taxpayer which\nceases to exercise its franchise or be subject to the tax surcharge\nimposed by this section shall be payable to the commissioner at the time\nthe report is required to be filed, provided such tax surcharge of a\ndomestic corporation which continues to possess its franchise shall be\nsubject to adjustment as the circumstances may require; all other tax\nsurcharges of any such taxpayer, which pursuant to the foregoing\nprovisions of this section would otherwise be payable subsequent to the\ntime such report is required to be filed, shall nevertheless be payable\nat such time. All of the provisions of this article presently applicable\nare applicable to the tax surcharge imposed by this section.\n 6. The term metropolitan commuter transportation district as used in\nthis section shall be defined pursuant to section twelve hundred\nsixty-two of the public authorities law.\n