2023 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, 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 and before
January first, two thousand twenty-four  before  the  deduction  of  any
credits  otherwise  allowable  under  this  article,  and at the rate of
thirty percent of the tax imposed under such section for  taxable  years
beginning on or after January first, two thousand twenty-four 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  and  before
January  first,  two  thousand  twenty-four  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 part  A
of  chapter  fifty-nine  of the laws of two thousand fourteen, 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, for taxable
years beginning before January first, two  thousand  twenty-four,  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.