209-B - Temporary metropolitan transportation business tax surcharge.
§ 209-B. Temporary metropolitan transportation business tax surcharge. 1. For the privilege of exercising its corporate franchise, or of doing business, or of employing capital, or of owning or leasing property in a corporate or organized capacity, or of maintaining an office in the metropolitan commuter transportation district, for all or any part of its taxable year, there is hereby imposed on every corporation, other than a New York S corporation, subject to tax under section two hundred nine of this article, or any receiver, referee, trustee, assignee or other fiduciary, or any officer or agent appointed by any court, who conducts the business of any such corporation, for the taxable years commencing on or after January first, nineteen hundred eighty-two but ending before December thirty-first, two thousand thirteen, a tax surcharge, in addition to the tax imposed under section two hundred nine of this article, to be computed at the rate of eighteen percent of the tax imposed under such section two hundred nine for such taxable years or any part of such taxable years ending before December thirty-first, nineteen hundred eighty-three after the deduction of any credits otherwise allowable under this article, and at the rate of seventeen percent of the tax imposed under such section for such taxable years or any part of such taxable years ending on or after December thirty-first, nineteen hundred eighty-three after the deduction of any credits otherwise allowable under this article; provided, however, that such rates of tax surcharge shall be applied only to that portion of the tax imposed under section two hundred nine of this article after the deduction of any credits otherwise allowable under this article which is attributable to the taxpayer's business activity carried on within the metropolitan commuter transportation district; and provided, further, that the tax surcharge imposed by this section shall not be imposed upon any taxpayer for more than three hundred seventy-two months. Provided however, that for taxable years commencing on or after July first, nineteen hundred ninety-eight, such surcharge shall be calculated as if the tax imposed under section two hundred ten of this article were imposed under the law in effect for taxable years commencing on or after July first, nineteen hundred ninety-seven and before July first, nineteen hundred ninety-eight. Provided however, that for taxable years commencing on or after January first, two thousand seven, such surcharge shall be calculated using the highest of the tax bases imposed pursuant to paragraphs (a), (b), (c) or (d) of subdivision one of section two hundred ten of this article and the amount imposed under paragraph (e) of subdivision one of such section two hundred ten, for the taxable year; and, provided further that, if such highest amount is the tax base imposed under paragraph (a), (b) or (c) of such subdivision, then the surcharge shall be computed as if the tax rates and limitations under such paragraph were the tax rates and limitations under such paragraph in effect for taxable years commencing on or after July first, nineteen hundred ninety-seven and before July first, nineteen hundred ninety-eight. 2. The portion of the taxpayer's business activity carried on within the metropolitan commuter transportation district shall be determined by multiplying the tax imposed under section two hundred nine of this article by a percentage to be determined as follows: (a) ascertaining the percentage which the average value of the taxpayer's real and tangible personal property, whether owned or rented to it, within the metropolitan commuter transportation district during the period covered by its report bears to the average value of all the taxpayer's real and tangible personal property, whether owned or rented to it, within the state during such period; provided that the term "value of the taxpayer's real and tangible personal property" shall havethe same meaning as is ascribed to that term by subparagraph one of paragraph (a) of subdivision three of section two hundred ten; (b) ascertaining the percentage which the receipts of the taxpayer, computed on the cash or accrual basis according to the method of accounting used in the computation of its entire net income, arising during such period from: (1) sales of its tangible personal property where shipments are made to points within the metropolitan commuter transportation district, (2) services performed within the metropolitan commuter transportation district, provided, however, that (i) in the case of a taxpayer engaged in the business of publishing newspapers or periodicals, receipts arising from sales of advertising contained in such newspapers and periodicals shall be deemed to arise from services performed within the metropolitan commuter transportation district to the extent that such newspapers and periodicals are delivered to points within the metropolitan commuter transportation district, (ii) receipts from an investment company from the sale of management, administration or distribution services to such investment company shall be deemed to arise from services performed within the metropolitan commuter transportation district to the extent set forth in subparagraph six of paragraph (a) of subdivision three of section two hundred ten of this chapter (except that references in such subparagraph six to the state shall be deemed, for purposes of application to this clause, to be references to the metropolitan commuter transportation district), (iii) in the case of taxpayers principally engaged in the activity of air freight forwarding acting as principal and like indirect air carriage receipts arising from such activity shall arise from services performed within the metropolitan commuter transportation district as follows: one hundred percent of such receipts if both the pickup and delivery associated with such receipts are made in the metropolitan commuter transportation district and fifty percent of such receipts if either the pickup or delivery associated with such receipts is made in the metropolitan commuter transportation district, and (iv) in the case of a taxpayer which is a registered securities or commodities broker or dealer, the receipts specified in subparagraph nine of paragraph (a) of subdivision three of section two hundred ten of this article shall be deemed to arise from services performed within the metropolitan commuter transportation district to the extent set forth in such subparagraph nine (except that references in such subparagraph nine to the state shall be deemed, for purposes of the application of this clause, to be references to the metropolitan commuter transportation district), (3) rentals from property situated and royalties from the use of patents or copyrights within the metropolitan commuter transportation district, and receipts from the sales of rights for closed-circuit and cable television transmissions of an event (other than events occurring on a regularly scheduled basis) taking place within the metropolitan commuter transportation district as a result of the rendition of services by employees of the corporation, as athletes, entertainers or performing artists, but only to the extent that such receipts are attributable to such transmissions received or exhibited within the metropolitan communter transportation district, and (4) all other business receipts earned within the metropolitan commuter transportation district, bear to the total amount of the taxpayer's receipts, similarly computed, arising during such period from all sales of its tangible personal property, services, rentals, royalties, receipts from the sales of rights for closed-circuit and cable television transmissions and all other business transactions, within the state;(c) ascertaining the percentage of the total wages, salaries and other personal service compensation, similarly computed, during such period, of employees within the metropolitan commuter transportation district, except general executive officers, to the total wages, salaries and other personal service compensation, similarly computed, during such period, of all the taxpayer's employees within the state, except general executive officers; and (d) adding together the percentages so determined and dividing the result by the number of percentages. 2-a. (a) A taxpayer principally engaged in the conduct of aviation (other than air freight forwarders acting as principal and like indirect air carriers and other than as provided in paragraph (c) of this subdivision) shall, notwithstanding the provisions of subdivision two of this section, determine the portion of its business activity carried on within the metropolitan commuter transportation district by multiplying the tax imposed under section two hundred nine of this article by the arithmetic average of the following three percentages: (i) the percentage determined by dividing aircraft arrivals and departures within the metropolitan commuter transportation district by the taxpayer during the period covered by its report by the total aircraft arrivals and departures within the entire state during such period; provided, however, arrivals and departures solely for maintenance or repair, refueling (where no debarkation or embarkation of traffic occurs), arrivals and departures of ferry and personnel training flights or arrivals and departures in the event of emergency situations shall not be included in computing such arrival and departure percentage; provided, further, the commissioner may also exempt from such percentage aircraft arrivals and departures of all non-revenue flights including flights involving the transportation of officers or employees receiving air transportation to perform maintenance or repair services or where such officers or employees are transported in conjunction with an emergency situation or the investigation of an air disaster (other than on a scheduled flight); provided, however, that arrivals and departures of flights transporting officers and employees receiving air transportation for purposes other than specified above (without regard to remuneration) shall be included in computing such arrival and departure percentage; (ii) the percentage determined by dividing the revenue tons handled by the taxpayer at airports within the metropolitan commuter transportation district during such period by the total revenue tons handled by it at airports within the entire state during such period; and (iii) the percentage determined by dividing the taxpayer's originating revenue within the metropolitan commuter transportation district for such period by its total originating revenue within the entire state for such period. As used herein the term "aircraft arrivals and departures" means the number of landings and takeoffs of the aircraft of the taxpayer and the number of air pickups and deliveries by the aircraft of such taxpayer; the term "originating revenue" means revenue to the taxpayer from the transportation of revenue passengers and revenue property first received by the taxpayer either as originating or connecting traffic at airports; and the term "revenue tons handled" by the taxpayer at airports means the weight in tons of revenue passengers (at two hundred pounds per passenger) and revenue cargo first received either as originating or connecting traffic or finally discharged by the taxpayer at airports; (b) Taxpayers principally engaged as air freight forwarders acting as principal and like indirect air carriers shall determine the portion of the taxpayer's business activity carried on within the metropolitancommuter transportation district in accordance with paragraphs (a) through (d) of subdivision two of this section, including the special provision relating to the allocation of receipts from the activity of air freight forwarding acting as principal contained in subparagraph two of paragraph (b) of such subdivision two. Provided, however, that a qualified air freight forwarder included on a combined report pursuant to the provisions of subparagraph three of paragraph (b) of subdivision four of section two hundred eleven of this article shall determine the portion of its business activity carried on within the metropolitan commuter transportation district in accordance with paragraph (a) of this subdivision. (c)(i) For taxable years beginning after nineteen hundred eighty-eight, a foreign air carrier which is described in the first sentence of paragraph (c-1) of subdivision nine of section two hundred eight of this article, and which is subject to tax under section two hundred nine of this article based on the amount prescribed in paragraph (a), (c) or (d) of subdivision one of section two hundred ten of this article, shall determine the portion of its business activity carried on within the metropolitan commuter transportation district pursuant to the provisions of paragraphs (a) through (d) of subdivision two of this section, except that the numerators and denominators involved in such computation shall exclude property to the extent employed in generating income excluded from entire net income pursuant to the provisions of paragraph (c-1) of subdivision nine of section two hundred eight of this article, exclude such receipts as are excluded from entire net income for the taxable year pursuant to the provisions of paragraph (c-1) of subdivision nine of section two hundred eight of this article, and exclude wages, salaries or other personal service compensation which are directly attributable to the generation of income excluded from entire net income for the taxable year pursuant to the provisions of paragraph (c-1) of subdivision nine of section two hundred eight of this article. (ii) For taxable years beginning after nineteen hundred ninety-three, a foreign air carrier which is described in the first sentence of subparagraph one of paragraph (c-1) of subdivision nine of section two hundred eight of this article, which is subject to tax under section two hundred nine of this article based on the amount prescribed in paragraph (b) of subdivision one of section two hundred ten of this article and which is subject to the provisions of paragraph (b) of subdivision seven of section two hundred eight of this article, shall determine the portion of its business activity carried on with the metropolitan commuter transportation district pursuant to subparagraph (i) of this paragraph. 2-b. A taxpayer principally engaged in the conduct of a railroad business (including surface railroad, whether or not operated by steam, subway railroad, elevated railroad, palace car or sleeping car business), or a trucking business, shall, notwithstanding the provisions of subdivision two of this section, determine the portion of its business activity carried on within the metropolitan commuter transportation district by multiplying the tax imposed under section two hundred nine of this article by a fraction, the numerator of which is the taxpayer's mileage within the metropolitan commuter transportation district during the period covered by its report and the denominator of which is the taxpayer's mileage within this state during such period. 3. A corporation shall not be deemed to be doing business, employing capital, owning or leasing property, or maintaining an office in the metropolitan commuter transportation district, for the purposes of this section, by reason of (a) the maintenance of cash balances with banks or trust companies in the metropolitan commuter transportation district, or(b) the ownership of shares of stock or securities kept in the metropolitan commuter transportation district, if kept in a safe deposit box, safe, vault or other receptacle rented for the purpose, or if pledged as collateral security, or if deposited with one or more banks or trust companies, or brokers who are members of a recognized security exchange, in safekeeping or custody accounts, or (c) the taking of any action by any such bank or trust company or broker, which is incidental to the rendering of safekeeping or custodian service to such corporation, or (d) the maintenance of an office in the metropolitan commuter transportation district by one or more officers or directors of the corporation who are not employees of the corporation if the corporation otherwise is not doing business in the metropolitan commuter transportation district, and does not employ capital or own or lease property in the metropolitan commuter transportation district, or (e) the keeping of books or records of a corporation in the metropolitan commuter transportation district if such books or records are not kept by employees of such corporation and such corporation does not otherwise do business, employ capital, own or lease property or maintain an office in the metropolitan commuter transportation district, or (f) any combination of the foregoing activities. 4. Notwithstanding any contrary provisions of state or local law, the tax surcharge imposed under this section shall not be allowed as a deduction in the computation of any tax imposed under this chapter. Furthermore, the credits otherwise allowable under this article shall not be allowed against the tax surcharge imposed by this section. 5. The provisions concerning reports under section two hundred eleven shall be applicable to this section, except that for purposes of an automatic extension for six months for filing a report covering the tax surcharge imposed by this section, such automatic extension shall be allowed only if a taxpayer files with the commissioner an application for extension in such form as said commissioner may prescribe by regulation and pays on or before the date of such filing in addition to any other amounts required under this article, either ninety percent of the entire tax surcharge required to be paid under this section for the applicable period, or not less than the tax surcharge shown on the taxpayer's return for the preceding taxable year, if such preceding taxable year was a taxable year of twelve months; provided, however, that in no event shall such amount be less than the product of the following three amounts: (1) the tax surcharge rate in effect for the taxable year pursuant to subdivision one of this section, (2) the fixed dollar minimum applicable to such taxpayer as determined under paragraph (d) of subdivision one of section two hundred ten of this chapter for the taxable year, and (3) the percentage determined under subdivision two of this section for the preceding taxable year, unless the taxpayer was not subject to the tax surcharge imposed pursuant to this section with respect to such year, in which case such percentage shall be deemed to be one hundred percent. The tax surcharge imposed by this section shall be payable to the commissioner in full at the time the report is required to be filed, and such tax surcharge or the balance thereof, imposed on any taxpayer which ceases to exercise its franchise or be subject to the tax surcharge imposed by this section shall be payable to the commissioner at the time the report is required to be filed, provided such tax surcharge of a domestic corporation which continues to possess its franchise shall be subject to adjustment as the circumstances may require; all other tax surcharges of any such taxpayer, which pursuant to the foregoing provisions of this section would otherwise be payable subsequent to the time such report is required to be filed, shall nevertheless be payable at such time. All ofthe provisions of this article presently applicable are applicable to the tax surcharge imposed by this section. 6. The term metropolitan commuter transportation district as used in this section shall be defined pursuant to section twelve hundred sixty-two of the public authorities law.