NY Tax L § 1515 (2021)
2021 New York Laws TAX - Tax Article 33 - Franchise Taxes on Insurance Corporations 1515 - Returns.

§  1515. Returns. (a) Every taxpayer and every other foreign and alien insurance corporation having an employee, including any officer, in this state or  having  an  agent  or  representative  in  this  state,  shall annually,  on  or  before the fifteenth day of the third month following the close of its  taxable  year,  for  taxable  years  beginning  before January  first, two thousand sixteen, and on or before the fifteenth day of the fourth month following the close of its taxable year, for taxable years beginning  on  or  after  January  first,  two  thousand  sixteen, transmit  to  the  commissioner  a  return  in  a form prescribed by the commissioner setting forth such  information  as  the  commissioner  may prescribe  and  every taxpayer which ceases to exercise its franchise or to be subject to the tax imposed by this article shall transmit  to  the commissioner  a  return  on  the date of such cessation or at such other time as the commissioner may require covering each year  or  period  for which  no  return  was theretofore filed. A copy of each return required under this subdivision shall also be transmitted to  the  superintendent of  financial  services at or before the times specified for filing such returns with the commissioner.  (b) Every taxpayer shall also transmit such  other  returns  and  such facts  and  information  as  the  tax  commission  may  require  in  the administration of this article.  (c) The tax commission may grant a reasonable extension  of  time  for filing returns whenever good cause exists. An automatic extension of six months  for  the  filing  of  its  annual  return  shall  be allowed any taxpayer, if  within  the  time  prescribed  by  subdivision  (a),  such taxpayer  files  with the tax commission an application for extension in such form as said commission may prescribe and pays  on  or  before  the date of such filing the amount properly estimated as its tax.  (d)  Every  return  shall  have annexed thereto a certification by the president,  vice  president,  treasurer,  assistant   treasurer,   chief accounting  officer or any other officer of the taxpayer duly authorized so to act to the effect that the statements contained therein are  true. The  fact  that an individual's name is signed on a certification of the return shall be prima facie evidence that such individual is  authorized to sign and certify the return on behalf of the corporation.  (e)   Report   of   changed  or  corrected  federal  income  or  final determination  of  refund  or  credit  of  retaliatory  taxes  or  other charges.--  (1)  If  the  amount  of  the life insurance company taxable income (which shall include, in the  case  of  a  stock  life  insurance company  which has an existing policyholders surplus account, the amount of  direct  and  indirect  distributions  during  the  taxable  year  to shareholders  from  such  account),  taxable  income of a partnership or taxable income, as the case  may  be,  or  alternative  minimum  taxable income  for  any  year  of any taxpayer as returned to the United States treasury department is changed  or  corrected  by  the  commissioner  of internal  revenue  or  other  officer  of  the  United  States  or other competent authority, such taxpayer shall report such change or corrected taxable income or alternative minimum taxable income within ninety  days (or one hundred twenty days, in the case of a taxpayer making a combined return  under  this article for such year) after the final determination of such change or correction or as required  by  the  commissioner,  and shall  concede the accuracy of such determination or state wherein it is erroneous. Any taxpayer filing an amended return  with  such  department shall  also  file within ninety days (or one hundred twenty days, in the case of a taxpayer making a combined return under this article for  such year)  thereafter  an  amended  return with the commissioner which shall contain  such  information  as  the  commissioner  shall  require.   The allowance of a tentative carryback adjustment based upon a net operating  loss  carryback  or  net  capital  loss  carryback  pursuant  to section sixty-four hundred eleven of  the  internal  revenue  code  or  upon  an operations  loss  carryback pursuant to section eight hundred ten of the internal  revenue  code,  shall  be treated as a final determination for purposes of this subdivision.  (2) If a taxpayer has paid  taxes  to  another  state  pursuant  to  a statute  similar  to  section  one  thousand  one  hundred twelve of the insurance law or any other statute or regulation of another state  under which  retaliatory  taxes or other charges were imposed or assessed, for which taxes or charges paid the  taxpayer  has  been  allowed  a  credit pursuant  to  subdivision  (c) of section fifteen hundred eleven of this article, and thereafter such taxes or charges are adjudged by a court of competent  jurisdiction  or  other  competent  authority  to  have  been erroneously  paid  or illegally or unconstitutionally imposed and, after exhaustion of all further judicial review there is a final determination that a refund or credit is due the taxpayer, such taxpayer shall  report such  final determination, along with the amount refunded or credited or to be refunded or credited, within ninety days of  its  issuance  or  as required by the tax commission.  (f)  (1)  Any  taxpayer,  which  owns  or  controls either directly or indirectly substantially all the capital stock  of  one  or  more  other corporations,  or  substantially all the capital stock of which is owned or controlled either  directly  or  indirectly  by  one  or  more  other corporations  or  by  interests  which own or control either directly or indirectly substantially all the capital stock  of  one  or  more  other corporations,  (hereinafter  referred  to  in this paragraph as "related corporations"),  shall  make  a  combined  return   with   any   related corporations  if there are substantial intercorporate transactions among the related corporations, regardless of  the  transfer  price  for  such intercorporate   transactions.   It  is  not  necessary  that  there  be substantial intercorporate transactions between any one corporation  and every other related corporation. It is necessary, however, that there be substantial  intercorporate  transactions  between  the  taxpayer  and a related  corporation  or  collectively,  a   group   of   such   related corporations.  The  return  shall  set  forth  such  information  as the commissioner may require.  (2)  In  determining  whether  there  are  substantial  intercorporate transactions,   the   commissioner   shall  consider  and  evaluate  all activities  and  transactions  of   the   taxpayer   and   its   related corporations.  Activities  and  transactions  that  will  be  considered include, but are not limited to: (i) manufacturing, acquiring  goods  or property, or performing services, for related corporations; (ii) selling goods  acquired  from  related  corporations;  (iii)  financing sales of related corporations; (iv) performing related  customer  services  using common  facilities  and  employees for related corporations; (v) selling policies or  contracts  of  insurance  for  related  corporations;  (vi) reinsuring  risks for related corporations; (vii) collecting premiums or other consideration for any policy or contract of insurance for  related corporations;  (viii)  incurring  expenses  that  benefit,  directly  or indirectly, one or  more  related  corporations  and  (ix)  transferring assets,  including  such  assets  as  accounts  receivable,  patents  or trademarks from one or more related corporations.  (3) Except as provided  in  paragraph  one  of  this  subdivision,  no combined  return  covering  any corporation shall be required unless the commissioner  deems  such  return  necessary  because  of   intercompany transactions   or   some   agreement,   understanding,   arrangement  or transaction referred to in subdivision (g) of  this  section,  in  order properly to reflect the tax liability under this article.  (4)(i)  For  purposes of this paragraph, the term "closest controlling stockholder" means the corporation that indirectly owns or controls over fifty percent of the voting stock of a captive REIT or captive  RIC,  is subject  to  tax  under  section  fifteen hundred one of this article or article  nine-A of this chapter or required to be included in a combined return or report under this article or article nine-A of  this  chapter, and  is the fewest tiers of corporations away in the ownership structure from the captive REIT or captive RIC. The commissioner is authorized  to prescribe   by   regulation  or  published  guidance  the  criteria  for determining the closest controlling stockholder.  (ii) A captive REIT or a captive RIC must be included  in  a  combined return  with  the  corporation that directly owns or controls over fifty percent of the voting stock of the captive REIT or captive RIC  if  that corporation  is  a  life  insurance corporation and is subject to tax or required to be included in a combined return under this article.  (iii) If over fifty percent of the voting stock of a captive  REIT  or captive  RIC  is  not  directly  owned or controlled by a life insurance corporation that is subject to tax or  required  to  be  included  in  a combined   return  under  this  article,  and  the  closest  controlling stockholder of the captive REIT or  captive  RIC  is  a  life  insurance corporation  that  is  subject  to  tax  or required to be included in a combined return under this article, then the captive REIT or captive RIC must be included in a  combined  return  with  the  closest  controlling stockholder under this article.  (iv)  If  a captive REIT owns the stock of a qualified REIT subsidiary (as defined in paragraph two of subsection (i) of section eight  hundred fifty-six of the internal revenue code) and the captive REIT is required to be included in a combined return under subparagraphs (ii) or (iii) of this  paragraph,  then the qualified REIT subsidiary must be included in any combined return required to be made by the captive  REIT  that  owns the stock of the qualified REIT subsidiary.  (v)  If  a  captive  REIT  or  a  captive  RIC  is required under this paragraph to be included in a combined return with another  corporation, and  that  other  corporation  is  required to be included in a combined return with another corporation under this subdivision, then the captive REIT or the captive RIC must be included in that  combined  return  with the other corporation.  (5)(i)  In the case of a combined return, the tax shall be measured by the  combined  entire  net  income  or  combined  capital  of  all   the corporations  included  in  the  return,  including  any captive REIT or captive RIC. In computing  combined  entire  net  income  intercorporate dividends  shall  be  eliminated,  in  computing  combined  business and investment  capital  intercorporate  stockholdings  and   intercorporate bills,   notes   and   accounts   receivable   and   payable  and  other intercorporate  indebtedness  shall  be  eliminated  and  in   computing combined   subsidiary  capital  intercorporate  stockholdings  shall  be eliminated. No taxpayer subject to the tax imposed  by  section  fifteen hundred  two-a  or  section fifteen hundred two-b of this article may be required or permitted to be included in a combined return.  (ii) In the case of a captive REIT required under this subdivision  to be included in a combined return, "entire net income" means "real estate investment  trust  taxable  income"  as  defined  in  paragraph  two  of subdivision (b) of section eight hundred  fifty-seven  (as  modified  by section  eight  hundred  fifty-eight) of the internal revenue code, plus the amount taxable under paragraph three of subdivision (b)  of  section eight  hundred  fifty-seven  of  that code, subject to the modifications required by section fifteen hundred three of this article. In  the  case of  a  captive  RIC  required under this subdivision to be included in a  combined return, "entire net income" means "investment  company  taxable income"  as defined in paragraph two of subdivision (b) of section eight hundred fifty-two (as modified by section eight hundred  fifty-five)  of the internal revenue code, plus the amount taxable under paragraph three of  subdivision  (b)  of  section  eight hundred fifty-two of that code, subject to the modifications required by section fifteen  hundred  three of  this article. However, the deduction under the internal revenue code for dividends paid by the captive REIT or captive RIC to any  member  of the  affiliated  group  that  includes  the corporation that directly or indirectly owns over fifty percent of the voting stock  of  the  captive REIT  or  captive  RIC shall not be allowed. The term "affiliated group" means "affiliated group" as defined in section fifteen hundred  four  of the internal revenue code, but without regard to the exceptions provided for in subsection (b) of that section.  (g)  In case it shall appear to the tax commission that any agreement, understanding or arrangement exists between the taxpayer and  any  other corporation,  or  any  person  or  firm  whereby the activity, business, income or capital of the taxpayer within  the  state  is  improperly  or inaccurately  reflected,  the tax commission is authorized and empowered in its discretion and in such manner as  it  may  determine,  to  adjust items  of income, deductions and capital and to eliminate items entering into the computing of any  allocation  percentage,  provided  only  that income  directly  traceable  thereto  be  also  excluded from entire net income, so as equitably to determine the tax.  Where  (a)  any  taxpayer conducts  its  activity  or business under any agreement, arrangement or understanding in such manner as either directly or indirectly to benefit its members or stockholders, or any of them, or any  person  or  persons directly  or  indirectly  interested  in  such  activity or business, by entering into any transaction at more or less than a fair  price  which, but  for  such  agreement, arrangement or understanding, might have been paid or received therefor, or (b) any taxpayer, a substantial portion of whose capital stock is owned either directly or  indirectly  by  another corporation,  enters into any transaction with such other corporation on such terms as to  create  an  improper  loss  or  net  income,  the  tax commission may include in entire net income the fair profits, which, but for  such  agreement,  arrangement  or understanding, the taxpayer might have derived from such transaction.