1504 - Allocation.

§  1504.  Allocation. (a) Allocation of entire net income. The portion  of entire net income of a taxpayer to  be  allocated  within  the  state  shall  be the amount determined by multiplying such income by the income  allocation percentage determined by:    (1) ascertaining the percentage which the taxpayer's New York premiums  for the taxable year bear to  the  taxpayer's  total  premiums  for  the  taxable year, and multiplying such percentage by nine,    (2)  ascertaining the percentage which total wages, salaries, personal  service compensation and commissions for the taxable year of  employees,  agents  and  representatives of the taxpayer within New York bear to the  total wages, salaries, personal service compensation and commissions for  the  taxable  year  of  all  the  taxpayer's   employees,   agents   and  representatives, and    (3)  adding  the  amounts  determined under paragraphs one and two and  dividing the sum by ten.    (b) Definition of premiums. (1)  For  purposes  of  paragraph  one  of  subdivision  (a),  the  term  "premium" includes all amounts received as  consideration for insurance contracts, reinsurance contracts and annuity  contracts and shall include premium deposits, assessments, policy  fees,  membership fees and every other compensation for such contract. The term  "total  premiums"  means  total  gross  premiums  or deposit premiums or  assessments, less returns thereon, on all policies,  annuity  contracts,  certificates,  renewals,  policies subsequently cancelled, insurance and  reinsurance  executed,  issued  or  delivered  on  property  or   risks,  including premiums for reinsurance assumed, less dividends on such total  premiums,  including  unused  or unabsorbed portions of premium deposits  paid or credited to policyholders but not including  deferred  dividends  paid  in  cash to policyholders on maturing policies, nor cash surrender  values, and less premiums on reinsurance ceded.    (2) For purposes of  paragraph  one  of  subdivision  (a),  "New  York  premiums" shall be determined as follows:    (A) For all premiums other than premiums described in subparagraph (B)  or  (C)  of  this  paragraph,  "New York premiums" means that portion of  total premiums written,  procured  or  received  on  property  or  risks  located or resident in New York and shall also include premiums written,  procured  or  received  in  this  state  on  business  which  cannot  be  specifically assigned as located or  resident  in  any  other  state  or  states,  other  than  premiums  described  in subdivision (b) of section  fifteen hundred twelve. Provided however, in the case  of  special  risk  premiums, "New York premiums" shall include only those premiums written,  procured  or  received  in  this  state  on property or risks located or  resident in this state.    (B)  For  premiums  on  reinsurance,  "New  York  premiums"  shall  be  determined as provided in subparagraph (A) of this paragraph except that  where  the  location or residence of the property or risk covered by the  reinsurance cannot be ascertained, "New York premiums"  shall  mean  the  portion of premiums for reinsurance determined by multiplying the amount  of  premiums  from  reinsurance ceded by each company to the taxpayer by  the percentage determined under paragraph one of subdivision (a) of this  section for each such ceding company for the preceding taxable year.    (C) For premiums from marine insurance, "New York premiums" means  (i)  that  portion  of  premiums  from  such marine insurance as are written,  procured or received on property or risks located or  resident  in  this  state  and,  (ii)  to  the  extent not otherwise includible in "New York  premiums"  under  clause  (i)  hereof,  the  premiums  for  such  marine  insurance written within this state on property or risks which cannot be  specifically  assigned  as  located  or  resident  in any other state or  country, provided however, in the case of special  risk  premiums,  "NewYork  premiums"  shall  include only those premiums written, procured or  received in this state on property or risks located or resident in  this  state.  For  purposes  of  this  subparagraph,  marine  insurance  means  insurance   written,  procured  or  received  upon  hulls,  freights  or  disbursements, or upon goods, wares, merchandise and all other  personal  property  and  interests  therein,  in  the  course of exportation from,  importation into any country,  or  transportation  coastwise,  including  transportation   by  land  or  water  from  point  of  origin  to  final  destination in respect to, appertaining to, or in connection  with,  any  and  all  risks  or perils of navigation, transit or transportation, and  while being prepared for, and while awaiting shipment,  and  during  any  delays, storage, transshipment or reshipment incident thereto, including  war risks and marine builder's risks.    (3)  For  the  purpose  of  paragraph  one  of subdivision (a), "total  premiums" shall not include special risk  premiums  unless  the  special  risk premium was written, procured or received in this state on property  or  risks  located  or resident in this state. "Total premiums" shall be  reported on a written basis or on a paid-for basis, consistent with  the  basis  required by the annual statement filed with the superintendent of  insurance pursuant to section three hundred seven of the insurance law.    (c)  Allocation  of  capital.  (1)  Business  capital  and  investment  capital.   The portion of the taxpayer's business and investment capital  of a taxpayer to be allocated within the state shall  be  determined  by  multiplying  the  amount thereof by the allocation percentage determined  as provided in subdivision (a) of this section.    (2) Subsidiary capital.  The  portion  of  the  taxpayer's  subsidiary  capital  to  be  allocated  within  the  state  shall  be  determined by  multiplying the amount of subsidiary capital invested in each subsidiary  during the period covered by its return (or, in the  case  of  any  such  capital  so  invested during only a portion of such period, such portion  of such capital) by the percentage, if any, of the  entire  capital,  or  the issued capital stock, or the net income, as the case may be, of such  subsidiary  required  to  be allocated within the state on the return or  returns, if any, required of such subsidiary under this chapter for  the  preceding year, and adding the sums so obtained.    (d)  If  it  shall  appear  to  the  tax  commission  that  the income  allocation  percentage  determined  as  hereinabove  provided  does  not  properly  reflect  the activity, business or income of a taxpayer within  the state, the tax commission shall be authorized, in its discretion, to  adjust it by:    (1) excluding one or more factors therein;    (2) including one or more other factors  therein,  such  as  expenses,  purchases,  receipts  other  than  premiums,  real  property or tangible  personal property;    (3) or any other similar or different method calculated  to  effect  a  fair  and  proper  allocation  of  the  income  and  capital  reasonably  attributable to the state. The tax commission from time  to  time  shall  publish  all  rulings  of  general  public  interest with respect to any  application of the provisions of this subdivision.