NY Tax L § 209-B (2021)
2021 New York Laws TAX - Tax Article 9-A - Franchise Tax on Business Corporations 209-B - Metropolitan Transportation Business Tax Surcharge.

§  209-B.  Metropolitan transportation business tax surcharge.  1. (a) 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, or of deriving  receipts  from   activity   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, a tax surcharge, in addition to the tax imposed under section two  hundred  nine  of  this  article,  to  be computed  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 and before January first, two thousand fifteen after the  deduction  of  any credits   otherwise  allowable  under  this  article,  at  the  rate  of twenty-five and six-tenths percent of the tax imposed under such section for taxable years beginning on or  after  January  first,  two  thousand fifteen  and  before  January  first,  two  thousand  sixteen before the deduction of any credits otherwise allowable under this article, and  at the  rate  determined  by  the commissioner pursuant to paragraph (f) of this subdivision of the tax imposed  under  such  section,  for  taxable years  beginning  on or after January first, two thousand sixteen before the deduction of any credits otherwise  allowable  under  this  article. However,  such  rate  of  tax  surcharge  shall  be applied only to that portion of the tax imposed  under  section  two  hundred  nine  of  this article  before  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,  the  surcharge  computed on a combined report shall include a surcharge on the fixed dollar minimum tax for each  member  of the combined group subject to the surcharge under this subdivision.  (b)   A   corporation  is  deriving  receipts  from  activity  in  the metropolitan commuter transportation district if it has receipts  within the metropolitan commuter transportation district of one million dollars or  more  in  a  taxable  year.  For  purposes of this section, the term "receipts" means the receipts that  are  subject  to  the  apportionment rules  set  forth  in section two hundred ten-A of this article, and the term "receipts within the metropolitan commuter transportation district" means the receipts included in the numerator of the apportionment factor determined under subdivision two of this section. For purposes  of  this paragraph,   receipts  from  processing  credit  card  transactions  for merchants include merchant discount fees received by the corporation.  (c) A corporation is  doing  business  in  the  metropolitan  commuter transportation  district  if  (i)  it  has  issued  credit  cards to one thousand or more  customers  who  have  a  mailing  address  within  the metropolitan  commuter transportation district as of the last day of its taxable year, (ii) it has merchant customer contracts with merchants and the total number of locations covered  by  those  contracts  equals  one thousand  or  more locations in the metropolitan commuter transportation district to whom the  corporation  remitted  payments  for  credit  card transactions  during the taxable year, or (iii) the sum of the number of customers described in subparagraph  (i)  of  this  paragraph  plus  the number  of  locations covered by its contracts described in subparagraph (ii) of this paragraph equals one thousand or  more.  As  used  in  this paragraph,  the  term  "credit  card"  includes bank, credit, travel and entertainment cards.  (d)(i) A corporation with less than one million dollars but  at  least ten  thousand  dollars  of  receipts  within  the  metropolitan commuter transportation district in a taxable year that  is  part  of  a  unitary group  that  meets the ownership test under section two hundred ten-C of this  article  is  deriving  receipts  from activity in the metropolitan commuter transportation district if the receipts within the metropolitan commuter transportation district of the members  of  the  unitary  group that  have  at  least  ten  thousand  dollars  of  receipts  within  the metropolitan commuter transportation district in the aggregate meet  the threshold set forth in paragraph (b) of this subdivision.  (ii)  A corporation that does not meet any of the thresholds set forth in paragraph (c) of this subdivision but has at least ten customers,  or locations,  or  customers  and locations, as described in paragraph (c), and is part of a unitary group  that  meets  the  ownership  test  under section  two  hundred  ten-C  of  this  article is doing business in the metropolitan  commuter  transportation  district  if   the   number   of customers,   locations,   or   customers   and   locations,  within  the metropolitan commuter transportation district  of  the  members  of  the unitary  group that have at least ten customers, locations, or customers and locations, within the metropolitan commuter transportation  district in  the aggregate meets any of the thresholds set forth in paragraph (c) of this subdivision.  (iii) For purposes of this paragraph,  any  corporation  described  in paragraph  (c)  of  subdivision two of section two hundred ten-C of this article shall not be considered.  (e) At the end  of  each  year,  the  commissioner  shall  review  the cumulative   percentage   change   in  the  consumer  price  index.  The commissioner shall adjust the  receipt  thresholds  set  forth  in  this subdivision  if  the  consumer price index has changed by ten percent or more since the January first, two thousand fifteen  or  since  the  date that  the  thresholds  were  last  adjusted  under this subdivision. The thresholds shall be  adjusted  to  reflect  that  cumulative  percentage change  in  the  consumer  price index. The adjusted thresholds shall be rounded to the nearest one thousand dollars. As used in this  paragraph, "consumer  price  index"  means  the  consumer price index for all urban consumers (CPI-U) available from the bureau of labor statistics  of  the United  States  department  of  labor. Any adjustment shall apply to tax periods that begin after the adjustment is made.  (f) The commissioner shall determine the rate of tax for taxable years beginning on or after January first, two thousand sixteen  by  adjusting the  rate  for  taxable  years  beginning on or after January first, two thousand fifteen and before  January  first,  two  thousand  sixteen  as necessary to ensure that the receipts attributable to such surcharge, as impacted by the chapter of the laws of two thousand fourteen which added this  paragraph,  will meet and not exceed the financial projections for state fiscal  year  two  thousand  sixteen-two  thousand  seventeen,  as reflected in state fiscal year two thousand fifteen-two thousand sixteen enacted  budget.  The  commissioner  shall  annually  determine the rate thereafter using the financial projections for  the  state  fiscal  year that  commences in the year for which the rate is to be set as reflected in the enacted budget for the fiscal year  commencing  on  the  previous April first.   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  before  the  deduction of any credits otherwise allowable under 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 mean the  adjusted  bases  of such properties for federal income tax purposes (except that in the case of rented property such value  shall  mean  the product  of (i) eight and (ii) the gross rents payable for the rental of such property during the taxable  year);  provided,  however,  that  the taxpayer  may  make  a  one-time,  revocable election to use fair market value as the value of all of its real and  tangible  personal  property, provided that such election is made on or before the due date for filing a  report  under  section  two  hundred  eleven for the taxpayer's first taxable year commencing on or after January first, two thousand  fifteen and provided that such election shall not apply to any taxable year with respect  to  which  the taxpayer is included on a combined report unless each of the taxpayers included on such report has made such an  election which remains in effect for such year;  (b)  ascertaining the percentage of the taxpayer's receipts within the metropolitan commuter transportation district  pursuant  to  the  method prescribed in section two hundred ten-A of this article, except that  (i) the numerator of the apportionment fraction under such section two hundred  ten-A  shall  be  the denominator of the apportionment fraction under this paragraph,  (ii) the numerator of the apportionment fraction under this  paragraph shall  be  determined  by applying the rules in such section two hundred ten-A relating to the numerator of  the  apportionment  fraction  as  if those rules referenced the metropolitan commuter transportation district rather than this state,  (iii) to the extent that a provision in such section two hundred ten-A provides  that eight percent of the receipts specified in that provision should be included in  the  numerator  of  the  apportionment  fraction, ninety  percent  of such eight percent amount shall be considered within the  metropolitan  commuter  transportation  district  and  one  hundred percent  of  such  eight percent amount shall be considered to be within the state, and  (iv) to the extent that a provision in such section two hundred  ten-A of  this  article provides that the receipts specified in that provision shall not be included in the numerator  of  the  apportionment  fraction under  such  section  two  hundred  ten-A,  such  receipts  shall not be included in determining the portion of the taxpayer's business  activity carried on within the metropolitan commuter transportation district;  (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.   3. A corporation shall not be deemed to be doing  business,  employing capital,  owning  or  leasing  property,  or  maintaining  an office, or deriving  receipts  from   activity   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 sections two hundred  ten-C and  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 of the 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.