183 - Franchise tax on transportation and transmission corporations and associations.
§ 183. Franchise tax on transportation and transmission corporations and associations.--1. (a) The term "corporation" as used in this section shall include an association, within the meaning of paragraph three of subsection (a) of section seventy-seven hundred one of the internal revenue code (including a limited liability company), a publicly traded partnership treated as a corporation for purposes of the internal revenue code pursuant to section seventy-seven hundred four thereof and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by certificates or other written instruments. (b) For the privilege of exercising its corporate franchise, or of doing business, or of employing capital, or of owning or leasing property in this state in a corporate or organized capacity, or of maintaining an office in this state, every domestic corporation, joint-stock company or association formed for or principally engaged in the conduct of canal, steamboat, ferry (except a ferry company operating between any of the boroughs of the city of New York under a lease granted by the city), express, navigation, pipe line, transfer, baggage express, omnibus, taxicab, telegraph, or telephone business, or formed for or principally engaged in the conduct of two or more of such businesses, and every domestic corporation, joint-stock company or association formed for or principally engaged in the conduct of a railroad, palace car, sleeping car or trucking business or formed for or principally engaged in the conduct of two or more of such businesses and which has made an election pursuant to subdivision ten of this section, and every other domestic corporation, joint-stock company or association principally engaged in the conduct of a transportation or transmission business, except a corporation, joint-stock company or association formed for or principally engaged in the conduct of a railroad, palace car, sleeping car or trucking business or formed for or principally engaged in the conduct of two or more of such businesses and which has not made the election provided for in subdivision ten of this section, and except a corporation, joint-stock company or association principally engaged in the conduct of aviation (including air freight forwarders acting as principal and like indirect air carriers) and except a corporation principally engaged in providing telecommunication services between aircraft and dispatcher, aircraft and air traffic control or ground station and ground station (or any combination of the foregoing), at least ninety percent of the voting stock of which corporation is owned, directly or indirectly, by air carriers and which corporation's principal function is to fulfill the requirements of (i) the federal aviation administration (or the successor thereto) or (ii) the international civil aviation organization (or the successor thereto), relating to the existence of a communication system between aircraft and dispatcher, aircraft and air traffic control or ground station and ground station (or any combination of the foregoing) for the purposes of air safety and navigation and except a corporation, joint-stock company or association subject to taxation under article thirty-two of this chapter, shall pay, in advance, an annual tax to be computed upon the basis of the amount of its capital stock within this state during the preceding year, and upon each dollar of such amount. Provided, however, a corporation, joint-stock company or association formed for or principally engaged in the transportation, transmission or distribution of gas, electricity or steam shall not be subject to tax under this section or section one hundred eighty-four of this article. (c) Notwithstanding the provisions of paragraph (b) of this subdivision, during the period that the state tax on motor fuel, computed without regard to any reimbursement allowable under paragraph (d) of subdivision three of section two hundred eighty-nine-c of thischapter, exceeds two cents per gallon, the corporations, herein classed as "taxicab" and "omnibus," other than corporations described in subdivision nine of this section, shall be taxed under the provisions of article nine-a of this chapter and not under this section. 2. The measure of the amount of capital stock in this state, except as hereinafter provided, shall be such a portion of the issued capital stock as the gross assets, exclusive of obligations issued by the United States and cash on hand and on deposit, employed in any business within this state, bear to the gross assets, exclusive of obligations issued by the United States and cash on hand and on deposit, wherever employed in business. Provided, however, that in the case of a corporation taxable hereunder only for the privilege of holding property, the measure shall be such a portion of the issued capital stock as the gross assets, exclusive of obligations issued by the United States and cash on hand and on deposit, located within the state, bear to the gross assets, exclusive of obligations issued by the United States and cash on hand and on deposit, wherever located. The capital of a corporation invested in the stock of another corporation shall be deemed to be assets located where the assets of the issuing corporation, other than patents, copyrights, trademarks, contracts and good will, are located. 3. Every corporation, joint-stock company or association, subject to taxation under this section shall, in any event, pay annually a minimum tax of not less than seventy-five dollars nor less than one and five-tenths mills on each dollar of such a portion of the net value of its issued capital stock, which net value for the purposes of this section shall be deemed to be not less than five dollars per share, as may be determined upon such of the bases herein provided for the measurement thereof as is applicable. The term "net value" as used in this section shall be construed to mean not less than the difference between a corporation's assets and liabilities, and not less than the average price at which such stock sold during the year covered by the report which forms the basis for the tax. But if the dividends paid on the par value of any kind of capital stock during any year ending with the thirty-first day of December amount to six per centum or more, the tax upon such kind of capital stock shall be at the rate of three-eighths of a mill for each one per centum of dividends paid and shall be computed upon the par value of such capital stock, unless such a tax be less than the minimum tax hereinbefore provided in this section, and the tax commission shall, for such purpose, make a fair and equitable apportionment of the assets of the corporation, joint-stock company or association, between or among the different kinds of stock, provided, however, that the provisions of this sentence shall not apply to any corporation, joint stock company or association formed for or principally engaged in the conduct of a telephone business which is subject to the provisions of section one hundred eighty-four of this article and which has a total number of access lines in the state of one million or less. 4. If such corporation, joint stock company or association shall have more than one kind of capital stock, and upon one of such kinds of stock a dividend or dividends amounting to six or more than six per centum upon the par value thereof, has been paid, and upon the other no dividend has been paid, or the dividend or dividends paid thereon amount to less than six per centum upon the par value thereof, then the tax shall be fixed upon each kind as hereinbefore provided. 5. The dividend rate for a corporation having stock without nominal or par value shall be determined by dividing the amount paid as a dividend or dividends during the year by the amount paid in on such stock and, if the rate is six per centum or more, the rate of three-eighths of a millfor each one per centum of dividends shall be applied to the amount paid in on such stock, unless such tax be less than the minimum tax hereinbefore in this section provided for. The amount of earned surplus at the time of change of classification of a corporation formerly taxed under article nine-a of this chapter shall be excluded in determining the amount of dividends paid. Any consideration given by a corporation for the purchase of its own stock in excess of the consideration received by it for the issuance of such stock, shall, for the purposes of this section, be considered as a dividend. 6. Every like corporation, joint-stock company or association organized, incorporated or formed under the laws of any other state, country or sovereignty shall pay a like tax for the privilege of exercising its corporate franchise, or of doing business, or of employing capital, or of owning or leasing property in this state in a corporate or organized capacity, or of maintaining an office in this state, to be computed upon the basis of the measurement herein provided for the taxation of domestic corporations. 7. The owning or holding in this state by a foreign corporation, or by a trustee or trustees included under this section within the meaning of the term corporation as herein before defined, of property shall constitute doing business within this state within the intent of this section; provided, however, that the owning or holding in this state by a railroad, palace car or sleeping car corporation, business, navigation, canal, ferry, (except a ferry company operating between any of the boroughs of the city of New York under a lease granted by the city), or steamboat or any other corporation formed for or principally engaged in the operation of vessels included under this section within the meaning of the term corporation as herein before defined, of property used exclusively in interstate or foreign commerce shall not constitute doing business in this state within the intent of this section. However, a foreign corporation or such a trustee or trustees shall not be deemed to be doing business, employing capital, owning or leasing property, or maintaining an office in this state, for the purposes of this article, by reason of (a) the maintenance of cash balances with banks or trust companies in this state, or (b) the ownership of shares of stock or securities kept in this state, 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 this state 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 this state, and does not employ capital or own or lease property in this state, or (e) the keeping of books or records of a corporation in this state 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 this state, or (f) any combination of the foregoing activities. 8. The measure of the capital stock in this state of a corporation engaged in the operation of vessels in foreign commerce shall be such portion of the issued capital stock as the aggregate number of working days in New York territorial waters of all such vessels bears to the aggregate number of working days of all such vessels. The dividend rate for such a corporation shall be determined by dividing the amount paid as a dividend or dividends on all classes of stock during the year bythe amount of paid-in capital and, if the rate is six per centum or more, the rate of three-eighths of a mill for each one per centum of dividends shall be applied to the amount of such paid-in capital. 9. (a) A corporation, classed as a "taxicab" or "omnibus", (1) which is organized, incorporated or formed under the laws of any other state, country or sovereignty, and (2) which neither owns nor leases property in this state in a corporate or organized capacity, nor (3) maintains an office in this state in a corporate or organized capacity, but (4) which is doing business or employing capital in this state by conducting at least one but fewer than twelve trips into this state during the calendar year, shall be exempt from the tax imposed under this section. If the only property a corporation owns or leases in this state is a vehicle or vehicles used to conduct trips, it shall not be considered, for purposes of subparagraph two of this paragraph, to be owning or leasing property in this state. (b) For purposes of this subdivision, a corporation classed as a "taxicab" or "omnibus" shall be considered to be conducting a trip into New York state when one of its vehicles enters New York state and transports passengers to, from, or to and from a location in New York state. A corporation shall not be considered to be conducting a trip into New York state if its vehicle only makes incidental stops at locations in the state while in transit from a location outside New York state to another location outside New York state. The number of trips a corporation conducts into New York state shall be calculated by determining the number of trips each vehicle owned, leased or operated by the corporation conducts into New York state and adding those numbers together. 10. Election. With respect to taxable years beginning after nineteen hundred ninety-seven, every corporation, joint-stock company or association formed for or principally engaged in the conduct of a railroad (including surface railroad, whether or not operated by steam, subway railroad or elevated railroad), palace car, sleeping car or trucking business or formed for or principally engaged in the conduct of two or more of such businesses, which would be subject to article nine-A or thirty-two of this chapter if the election provided for under this subdivision were not made, may elect to be subject to the provisions of this section and, as applicable, section one hundred eighty-four of this article, rather than the provisions of such article nine-A or thirty-two. In the case of such a corporation, joint-stock company or association subject to the tax imposed under this section and, as applicable, section one hundred eighty-four of this article, for the taxable year ending December thirty-first, nineteen hundred ninety-seven, such corporation, joint-stock company or association must make such election on or before March fifteenth, nineteen hundred ninety-eight, and such election shall apply to the taxable year ending on December thirty-first, nineteen hundred ninety-eight and to succeeding taxable years, until revoked. In the case of such a corporation, joint-stock company or association which is not subject to the tax imposed under this section and, as applicable, section one hundred eighty-four of this article for the taxable year ending December thirty-first, nineteen hundred ninety-seven, but thereafter would be subject to article nine-A or thirty-two of this chapter if the election provided for under this subdivision were not made, such corporation, joint-stock company or association must make such election by the first day on which such corporation, joint-stock company or association wouldbe required to file a return or report (without regard to extensions) under this section or section one hundred eighty-four of this article, or section one hundred eighty-three-a or one hundred-eighty-four-a of this article, or article nine-A or thirty-two of this chapter. An election made pursuant to this subdivision shall continue to be in effect until revoked by the taxpayer. A revocation of the election to be subject to this section and, as applicable, section one hundred eighty-four of this article, shall be irrevocable. Such election, and a revocation thereof, shall be made in the manner prescribed by the commissioner, whether by regulation or otherwise. Such revocation shall apply as of the first day of January next following the end of a taxable year with respect to which the taxpayer had been subject to this section and, as applicable, section one hundred eighty-four of this article, by reason of an election made pursuant to this subdivision.