Business Corporation Tax - Frequently Asked Questions

Department of Finance


Business and Excise TaxesBusiness ResourcesBenefitsDoing Business with NYC


Business Corporation Tax FAQs

Apportionment

1. I am a manufacturing corporation that has nexus in NYC, and I sell goods to an unrelated distributor located in NYC. I deliver the goods that I sell to this distributor to a location in NYC, and that distributor may sell some of those goods to its customers located outside NYC. How do I allocate my receipts from sales to this distributor?

Under section 11-654.2(2) of the Ad. Code, receipts from sales of tangible personal property will be sourced to NYC if you ship the goods to a point located in NYC or NYC is the destination for the goods. To make this determination, you may rely on section 4-4.2 of subpart 4-4 of the New York State Business Corporation Franchise Tax Regulations until the Department of Finance has promulgated a Rule that addresses the apportionment of receipts from sales of tangible personal property.

2. How is interest income from a loan that is secured by property located inside and outside of New York City apportioned?

The loan is considered a loan secured by real property if 50% or more of the fair market value of the collateral used to secure the loan consists of real property. All the interest income from a loan secured by real property located in New York City is apportioned to New York City. If the loan is secured by real property located inside and outside of New York City, the amount of interest income apportioned to New York City is computed by multiplying the total interest income from the loan by the following ratio:

Fair Market Value of Real Property Located in New York City Used to Secure the Loan Fair Market Value of all Real Property Used to Secure the Loan

Interest income from loans not secured by real property (and not QFI, or QFI with no election to use fixed percentage method) is apportioned to New York City if the borrower is located in New York City. An individual is considered located in New York City if the individual’s billing address is in New York City. A business entity is considered located in New York City if the entity’s commercial domicile is in New York City.

The determination of the type of loan, fair market value of real property, and borrower’s location is made at the time the loan is entered into. If the loan is refinanced at a later date, you must re-determine the type of loan and the amount of income to apportion to New York City. See, Administrative Code § 11-654.2(i)(A) and (B).

3. How is interest income on deposits apportioned to New York City?

Receipts from interest income on deposits are considered receipts from other financial instruments under Administrative Code § 11-654.2(5)(a)(2)(viii) and sourced to the payor’s commercial domicile.

Business income base

1. What documentation will the Department of Finance review to verify my client’s entire net income subtraction under section 11-652(8)(t) for affordable housing and low-income community loans?

The Department of Finance will review documents that establish your client’s eligibility for the exception and its calculation of the subtraction, including, but not limited to:

Supporting documentation for the reported interest from loans

Balance sheet and supporting documentation for the reported asset values

Loan agreement, promissory note and mortgage for each qualifying loan originated by the taxpayer, or, if the taxpayer acquired the loan immediately after origination, the purchase and sale agreement, the allonge, and assignments for the loan agreement and mortgage

A rent roll that is contemporaneous with, or existing at the origination of, each qualifying loan

Leases for any apartments subject to rent control,

Contemporaneous identification of the building on the New York Division of Housing and Community Renewal registration file, together with a contemporaneous list of the rent-stabilized apartments

The regulatory agreement

Contemporaneous census data, used for purposes of applying section 45D of the Internal Revenue Code of 1986, as amended, that includes the location of the property securing the qualifying loan, if applicable.

Note that if a loan satisfies the conditions set forth in 11-652(8)(t)(iii)(B)(I) and (II), the taxpayer must apply the proportionality restriction in sub-item (I).

2. Are Internal Revenue Code Section 78 gross-up dividends included in the business income base?

Our current policy of excluding these dividends from Entire Net Income is being continued. See Administrative Code section 11-652(8)(a)(2-a).

3. What constitutes a small business for determining whether a small thrift or community bank has made a “small business loan” for purposes of the subtraction modification under Administrative Code section 11-652(8)(q)?

A loan will be considered a “small business loan” if made to an active business that has had, for federal income tax purposes, an average number of full-time employees of 100 or fewer, not including general executive officers, and gross receipts of not greater than $10,000,000 in its immediately preceding taxable year. In the event that the entity applies for the loan in its first year of operations, satisfaction of the requirements in the preceding sentence is determined by the employees, receipts and assets of the business on the date of the loan application. In addition, the business may not be part of an affiliated group, as defined in section 1504 of the Internal Revenue Code, unless the group would have itself met, as a group, the active business, employee and the gross-receipts requirements. A business qualifies as an active business if the value of the financial instruments described in Section 11- 654.2(5)(a) of the Administrative Code of the City of New York that it holds for investment does not exceed 50% of the value of its total assets. A loan made to an entity that meets these requirements to be a small business at the time of the filing of the loan application, is deemed to be a small business loan throughout the term of such loan.

Example A:
A retail clothing business submits an application for a loan from a community bank on February 1, 2016. The bank determines that during the 2015 tax year, the business had an average number of 30 employees, and that for the same tax year the business’s gross receipts were $3,000,000 and its assets consisted entirely of inventory and working capital. The bank further determines that the business is not part of an affiliated group. The loan is a “small business loan” for purposes of the subtraction modification under Administrative Code section 11-652(8)(q).

Example B:
The business in example A submits an application for a loan from the same community bank on February 1, 2017. The bank determines that during the 2016 tax year, the business had an average number of 40 employees, and that for the same tax year the business’s gross receipts were $4,000,000. The bank further determines that for the 2016 tax year the business was part of an affiliated group; and that during that tax year the members of the affiliated group together had an average number of 90 employees, and that for the same tax year the members of the group’s total gross receipts were $9,000,000. The loan to the business is a “small business loan” for purposes of the subtraction modification under Administrative Code section 11-652(8)(q).

Example C:
A limited partnership submits an application for a loan from a community bank on February 1, 2017. The bank determines that during the 2016 tax year, the partnership had no employees and its gross receipts were $2,000,000 for the year. The bank also determines that its assets consist of corporate stock that has a value equal to $40 million and land that has a value equal to $10 million. The partnership holds the corporate stock for investment. The loan to the partnership does not qualify as a “small business loan” for purposes of the subtraction modification under Administrative Code section 11-652(8)(q).

4. For purposes of the entire net income subtraction modification for community banks and small thrifts (Administrative Code § 11-652(8)(q)), what does the term "residential mortgage loan" mean as it is used in the definition of a "qualifying loan"?

For this modification, a "residential mortgage loan" is a loan which meets the definition of an asset as described in Administrative Code section 11-652(8)(s)(2)(i)(D). Accordingly, a residential mortgage loan is:

a loan secured by an interest in real property which is (or from the proceeds of the loan, will become) residential real property or real property used primarily for church purposes, or

a loan made for the improvement of residential real property or the improvement of real property used primarily for church purposes.

Residential real property includes single or multi-family dwellings, facilities in residential developments dedicated to public use or property used on a nonprofit basis for residents, and mobile homes not used on a transient basis.

5. Can wages and salaries disallowed as a federal business expense deduction due to receipt of the federal Employee Retention Credit be deducted when computing New York City taxable income?

Yes. Wages and salaries that were disallowed as a federal business expense deduction due to the taxpayer’s receipt of the federal Employee Retention Credit may be deducted when computing New York City taxable income.

Banking Corporation Tax taxpayers should report this modification on Form NYC-1, Schedule B, Line 20. Business Corporation Tax taxpayers should report this modification on Form NYC-2 or NYC-2A, Schedule B, Line 18. General Corporation Tax taxpayers should report this modification on Form NYC-3A or NYC-3L, Schedule B, Line 14. Unincorporated Business Tax taxpayers should report this modification on Form NYC-202, Schedule B, Line 14 or Form NYC-204, Schedule B, Line 18.

Combined reporting

1. Which corporation representative should file an extension request on behalf of a new combined group?

The designated agent appointed by the combined group under section 11-654.3(7) should file the extension request (Forms NYC-EXT and NYC-EXT.1, as applicable). An electronically filed Form NYC-EXT will be processed without a full list of the new combined group members, and the other taxpayer-members of the combined group do not need to file extension requests. Note, however, that the designated agent must claim all estimated payments and pre-payments made by combined group members by submitting a list with its Final return that identifies the members making payments, their employee identification numbers and the amounts of their payments. Taxpayers may contact eservices to resolve any discrepancies.

2. How does the designated agent of a newly formed combined group make the 2nd, 3rd and 4th estimated tax payments for the group?

The designated agent may submit a single payment under its employer identification number for the entire group using Form NYC-400, Estimated Tax for Corporations.

3. Will estimated tax payments independently made by a combined group member be credited to the combined group’s tax liability?

Yes. At the time the return is filed, the member’s estimated tax payments will be moved to the account created for the combined group.

4. Must non-taxpayer members of a unitary group who meet the ownership requirements under section 11-654.3 of the Ad. Code be included in a combined report?

Yes, this applies to each corporation unless it may not be included in a combined report due to the exclusions in section 11-654.3(2)(c) of the Ad. Code. The exclusions apply to:

Corporations that are or would be considered non-taxable under Subchapter 3-A because they conduct utility or insurance businesses, as more specifically provided in section 11-654.3(2)(c) of the Ad. Code;

Real Estate Investment Trusts (REITs) that are not captive REITs

Regulated Investment Companies (RICs) that are not captive RICs

Federal S corporations

Alien corporations that, under any provision of the Internal Revenue Code (IRC), are not treated as a "domestic corporation" as defined in section 7701 of the IRC and have no effectively connected income for the taxable year pursuant to section 11-652(8)(iii); and

Corporations subject to tax solely because they are a limited partner of a limited partnership with receipts or activities in New York, and none of the corporation's related corporations are subject to tax under Subchapter 3-A.

5. How are the activities of unitary corporations reported on a combined report if the capital stock requirement is met for only part of a tax year?

The unitary corporations’ activities conducted during the portion of the tax year that the capital stock requirement is met are included in the combined report.

Example:
Corporation A owns 60% of the voting power of the capital stock of Corporation B, 70% of the voting power of the capital stock of Corporation C, and 55% of the voting power of the capital stock of Corporation D. The corporations are unitary and are calendar-year taxpayers. Corporation A sells its entire investment in Corporation B on June 19, 2015, to Corporation E. Corporation B is not unitary with Corporation E. Corporations B, C, and D are subject to tax in New York. Corporations A and E do not have taxable nexus with NYC and are not NYC taxpayers.

Corporations A, B, C, and D are required to file a combined return for the period January 1, 2015 through December 31, 2015. The business activities of Corporation B are required to be included in that combined return only for the period January 1, 2015 through June 19, 2015. Corporation B is required to file a separate Business Corporation Tax return (Form NYC-2) for the short period June 20, 2015 through December 31, 2015. Corporation E is not required to file a Business Corporation Tax return.

6. Is the capital of a captive REIT, captive RIC, or combinable captive insurance company included in the computation of a combined group’s capital base?

Yes.

7. Will New York City consider a corporation instantly unitary with a taxpayer when acquired?

It is a facts and circumstances determination upon acquisition.

8. How is the commonly owned group election made?

The election is made on the original return of the combined group that is timely filed (including valid extensions of time for filing). There will be an indicator on the combined return for this election.

9. Can both fiscal year and calendar year filers be included in a combined report? If so, when is a fiscal-year corporation that is a member of a combined group included in a combined report if its designated agent files as a calendar-year taxpayer?

Generally, a corporation with a fiscal tax year may be included in a combined report with a calendar- year taxpayer. If a corporation does not have the same tax year as the taxpayer designated as the agent for the combined group, the corporation’s income and activities for its tax year that ends within the tax year of the designated agent are included in the combined report. However, any corporation with a fiscal tax year that begins in 2014 and ends in 2015 cannot be included in a combined report with any other corporation that has a tax year beginning on or after January 1, 2015. Fiscal-year taxpayers must file a separate tax return from that of its designated agent for a tax year that began in 2014 and ends in 2015, if the designated agent's tax year begins on or after January 1, 2015. A fiscal-year taxpayer may be included in a combined report with its designated agent starting with its first fiscal year that begins on or after January 1, 2015. See also, Finance Memorandum 15-2 (April 17, 2015)

Example A:
A BCT taxpayer has a fiscal tax year that ends on September 30. The taxpayer is a member of a combined group whose designated agent has a calendar tax year ending on December 31. The BCT taxpayer is still subject to tax under the BCT for its 2014-2015 fiscal tax year, and must separately file Form NYC-1 for its fiscal tax year that runs from October 1, 2014 through September 30, 2015. For its fiscal tax year that begins on October 1, 2015 and ends on September 30, 2016, the former BCT taxpayer is included in the designated agent's combined report filed under Subchapter 3-A for the tax year that begins on January 1, 2016 and ends on December 31, 2016.

Example B:
A GCT taxpayer with a fiscal tax year that ends on June 30 is a member of a combined group with a calendar tax year ending on December 31. The taxpayer must separately file Form NYC-3L for its fiscal tax year that runs from July 1, 2014 to June 30, 2015, and may not be included in the designated agent's combined report for the tax year that begins on January 1, 2015 to December 31, 2015. The fiscal tax year that begins on July 1, 2015 and ends on June 30, 2016 is included in the designated agent's combined report for the tax year that runs January 1, 2016 through December 31, 2016.

Example C:
The designated agent of a combined group has made a commonly owned group election under Administrative Code section 11-654.3(3) (seven year election) for its 2015 calendar tax year. It owns more than 50% of an affiliated corporation that is a GCT fiscal-year taxpayer with a tax year that ends on March 31. The affiliated corporation must separately file Form NYC-3L for its fiscal tax year that runs from April 1, 2014 through March 31, 2015. For its fiscal tax year that begins on April 1, 2015 and ends on March 31, 2016, the affiliated corporation is included in the designated agent's combined report for the tax year that begins on January 1, 2016 and ends on December 31, 2016.

10. Are non-taxpayer members of a combined group subject to the fixed dollar minimum tax?

No.

Reports

1. When will the 2015 the forms and instructions be made available for the new Business Corporation Tax (Subchapter 3-A of the Ad. Code)?

The 2015 Business Corporation Tax forms and instructions for single corporation filers (Form NYC-2 and feeder forms) and for combined group filers (Form NYC-2A and feeder forms) are currently available on our website.

2. My 2015 Business Corporation Tax returns are due, but all the necessary tax forms are not yet available to be e-filed. What should I do?

If the forms you need to file your Business Corporation Tax return for 2015 are not yet available to be e-filed, you should electronically file a Form NYC-EXT Request for Six-Month Extension to File. Additional information about e-filing your extension request can be found here.

3. When will the Department of Finance be accepting e-filed 2015 Business Corporation Tax returns?

The Department is accepting e-filed 2015 Forms NYC-2, 2.1, 2.2, 2.3, 2.4 and 2.5 and other ancillary forms. Check here periodically check here for the most current e-file approval status of each software developer’s 2015 Business Corporation Tax forms.

4. I filed a tax return for the NYC General Corporation Tax for the 2015 tax year (e.g., a Form NYC-3L, NYC-3A, NYC-4S, or NYC-4SEZ), but I am a C-corporation for U.S. federal income tax purposes. I should have filed a tax return for the new Business Corporation Tax. What do I do?

You should file again using the appropriate tax return for the Business Corporation Tax and check the box to indicate that it’s an amended return. The Form NYC-2 is available on our website, and through certain approved software vendors, for single corporation filers. Corporations that file on a combined return must use the Form NYC-2A, which is also available on our Website.

Nexus

1. Is an alien corporation that conducts a trade or business in New York City taxable under the Business Corporation Tax and could it be included in a combined report in a tax year that generates a loss that is effectively connected with the conduct of its trade or business in the U.S.?

Yes. If an alien corporation has income, gain, or loss that is effectively connected with a U.S. trade or business, conducted in New York City, it is considered a taxpayer under the Business Corporation Tax. If an alien corporation has income, gain, or loss that is effectively connected with a U.S. trade or business, it is subject to the requirements of a combined report.

Business capital

1. Does business capital include the capital that generates other exempt income?

Yes, because this capital may also generate taxable business income, such as capital gains from the sale of stock in a unitary corporation that is not included in a combined report with the taxpayer.

2. Is an investment in a company that would be taxable under chapter 11 of title 11 of the Administrative Code (except for a vendor of utility services that is taxable under both chapter 11 and the Business Corporation Tax), but does not do business in the City and is not taxable under chapter 11, eligible for the .075% tax rate that applies under section 11-654(e)(1)(ii)(C) of the Administrative Code for purposes of the tax on capital?

Yes, a business capital investment in a company that would be taxable under chapter 11 if it conducted business in the City is eligible for the .075% tax rate.

3. Is an investment in a Health Maintenance Organization eligible for the .075% tax rate that applies under section 11-654(e)(1)(ii)(C) of the Administrative Code for purposes of the tax on capital?

No, a business capital investment in an HMO is subject to the generally applicable .15% tax rate and is not eligible for the .075% tax rate because an HMO is subject to tax as a regular business corporation rather than an insurance corporation. DOF will monitor the appeal of the NYC Tax Appeals Tribunal decision In The Matter of Aetna, Inc., TAT(E)12-3(GC), TAT(E)12-4(GC) (NYC Tax App. Trib. June 3, 2016) for its effect, if any, on this conclusion.

For the avoidance of doubt, DOF will not look-through to the underlying investments of the HMO, to characterize the investment in the HMO itself. The nature of the business capital investments of the HMO will only be relevant to the extent it is a separate filer and computes its own tax on capital or it becomes a member of a combined group, in which case, it will aggregate its business capital investments with the other members of the combined group to determine the total tax on capital for the group.

Credit carryforwards

1. How does corporate tax reform affect credit carryforwards from years prior to 2015?

The credit carryforward provisions were included in the new Subchapter 3-A. Any credit carried forward from a year prior to corporate tax reform may continue to be carried forward and used against the tax imposed under Subchapter 3-A in tax years 2015 and after, under the same rules that applied prior to reform.

Credits with carryforwards of unlimited duration can continue to be carried forward until used

Credits with carryforwards of a limited duration can be carried forward and used until their expiration.

Example:
A taxpayer, who relocated in 2008, was allowed a $3,000 Lower Manhattan Relocation and Employment Assistance tax credit in 2013 that has a 5-year carryforward duration. The taxpayer used $1000 in 2013 and $500 in 2014. The unused credit carryforward of $1,500 may continue to be carried forward until 2018, or whenever it is completely used, whichever comes first. Further, the twelve year benefit period also carries over into Subchapter 3-A.

Interest attribution

1. If a taxpayer makes the election to reduce its investment income and other exempt income by 40% in lieu of attributing interest expense to investment income and other exempt income, can the Department override the election and require attribution?

No. The Department of Finance is bound to follow the taxpayer’s election.

Investment capital

1. Is the 20% ownership presumption regarding a unitary relationship for purposes of determining exempt investment income a rebuttable presumption?

The 20% ownership presumption is rebuttable. If the Department chooses to rebut the presumption, the burden will fall on the Department to demonstrate that the less than 20% owned subsidiary is unitary with the taxpayer.

2. The definition of investment capital includes a debt obligation or other security if its income or gain cannot be apportioned to the state as business income as a result of U.S. constitutional principles. Will the Department issue guidance outlining the items it cannot constitutionally apportion as business income?

No. Under U.S. Supreme Court case law, a state cannot treat an item of income of a taxpayer subject to tax in the state as apportionable business income if the state does not have constitutional nexus with that item of income. The Department will not attempt to offer guidance beyond existing Supreme Court case law as to how this constitutional doctrine would apply under particular facts and circumstances.

Applicable tax rate for qualified New York manufacturing corporations

1. How does a qualified New York manufacturing corporation determine its tax rate?

The tax rate applicable to a qualified New York manufacturing corporation depends upon both the amount of its business income allocated to the City and the amount of its total business income prior to allocation. Administrative Code sections 11-654(1)(k)(1), (2) and (3) require separate alternative tax rate calculations using each amount. To determine its applicable tax rate, the corporation must, first, calculate its tax rate with reference to business income allocated to the City, second, calculate its tax rate with reference to business income prior to allocation, and, third, select the highest rate resulting from these calculations. Each calculation is necessary even if the corporation’s allocated business income is less than $10 million. Accordingly, the tax rate based on total business income prior to allocation sets a minimum, not a maximum, tax rate. No tax rate reduction applies at all if the corporation’s income allocated to the City is $20 million or greater or its business income prior to allocation is $40 million or greater.

Example A:
A qualified New York manufacturing corporation has $15 million of business income allocable to the City and $25 million of total business income. It must calculate alternative tax rates using each amount of income. The applicable tax rate is 6.638% because:

Tax rate based on business income allocated to the City. 4.425% + (4.425% x ([$15 million - $10 million] / $10 million)) = 6.6375% (round to 6.638%),

Tax rate based on total business income prior to allocation. 4.425% + (4.425% x ([$25 million -
$20 million] / $20 million)) = 5.53125% (round to 5.531%), and

The higher rate is 6.638%.

Example B:
A qualified New York manufacturing corporation has $15 million of business income allocable to the City and $35 million of total business income. It must calculate alternative tax rates using each amount of income. The applicable tax rate is 7.744% because:

Tax rate based on business income allocated to the City. 4.425% + (4.425% x ([$15 million - $10 million] / $10 million)) = 6.6375% (round to 6.638%),

Tax rate based on total business income prior to allocation. 4.425% + (4.425% x ([$35 million -
$20 million] / $20 million)) = 7.74375% (round to 7.744%), and

The higher rate is 7.744%.

Example C:
A qualified New York manufacturing corporation has $15 million of business income allocable to the City and $41 million of total business income. The applicable tax rate is 8.85% because total business income is $40 million or greater.

Example D:
A qualified New York manufacturing corporation has $25 million of business income allocable to the City and $25 million of total business income. The applicable tax rate is 8.85% because business income allocated to the City is $20 million or greater.

Example E:
A qualified New York manufacturing corporation has $8 million of business income allocable to the City and $25 million of total business income. It must calculate alternative tax rates using each amount of income.
The applicable tax rate is 5.531% because:

Example F:
A qualified New York manufacturing corporation has $8 million of business income allocable to the City and $15 million of total business income. It must calculate alternative tax rates using each amount of income. The applicable tax rate is 4.425% because:

Mandatory first installment (MFI)

1. How does a bank that files under the Banking Corporation Tax for its 2014 tax year compute its MFI for the first quarter of 2015?

Corporate tax reform did not change the MFI rules. MFI will continue to be based on rules in effect for a taxpayer’s 2014 tax return.

2. Does corporate tax reform change the MFI rules?

No. The mandatory first installment is still based on the prior year’s tax. The remaining three estimated tax payments should reflect the anticipated liability for the current tax year. Therefore, when determining the amount of the 2nd, 3rd and 4th estimated tax payments for tax years that begin on or after January 1, 2015, the effect of the corporation tax reform rules should be taken into consideration.
However, as a general matter, the Department will not assert an underpayment of estimated tax for any payment due on or prior to June 15, 2015, if the taxpayer makes the required declarations and payments in full no later than the first due date after June 15, 2015 on which an installment of estimated tax is required to be paid, together with all other such declarations and payments.

Net operating loss (NOL)

1. Can a taxpayer carry back a net operating loss to a tax year beginning before January 1, 2015?

NOLs can be carried back 3 years. However, an NOL generated in 2015 or later cannot be carried back to a tax year commencing prior to January 1, 2015.

2. Does a corporation lose its net operating loss (NOL) carryforward balance and prior net operating loss conversion subtraction (PNOLC) pool if it converts from a federal C-corporation to a federal S-corporation after January 1, 2015 and becomes a filer under the General Corporation Tax (GCT)?

No. The corporation may establish an NOL carryforward balance under the GCT that reflects the NOLs it incurred while a taxpayer in the City, and it must determine that balance as if it used the greater of (i) the NOLs it would have used under the GCT and (ii) the NOLs it effectively used under the Business Corporation Tax (Subchapter 3-A). The following steps explain this calculation:

Determine the corporation’s NOL carryforward balance, if any, at the end of its last tax year beginning in 2014 under the GCT.

Recalculate the NOLs the corporation incurred in each tax year beginning on or after January 1, 2015 that it was a Subchapter 3-A taxpayer, as if it had been a GCT taxpayer in each year, and add that amount to the balance in Step #1.

Compute the hypothetical amount of NOLs that the corporation would have used if it was a GCT taxpayer in each tax year that it was a Subchapter 3-A taxpayer beginning on or after January 1, 2015. (Generally, an S-corporation may annually deduct an NOL that is equivalent to the amount it would have been allowed to deduct for federal purposes, if it had not made the election to be an S-corporation, subject to certain statutorily specified limitations. Ad. Code § 11-602(f)(3)).

Compute the amount of NOLs effectively used by the corporation under Subchapter 3-A, by determining the amount of the PNOLC subtraction pool and NOL carryforward that it used and then converting those amounts into pre-apportioned NOLs under the GCT.

Determine the S-corporation’s current NOL carryforward balance under the GCT by subtracting the greater of the amounts determined in Step #3 and Step #4 from the amount determined in Step #2.

Example:

B is a non-financial corporation and it elects to be taxed as an S-corporation for federal income tax purposes, effective January 1, 2016. It has been a corporate taxpayer in the City since its formation.

At the end of its 2014 tax year, B’s unabsorbed net operating losses (UNOL) equal $100,000; its base year business allocation percentage (BAP) is 80%; and its base year tax rate is 8.85%.

B’s PNOLC subtraction pool is $80,000, which is the tax value of its UNOL divided by 8.85%. Ad. Code § 11-654.1(b)(2).

The tax value of B’s UNOL is $7,080, which is the amount of its UNOL multiplied by its base year BAP and tax rate. Ad. Code § 11-654.1(b)(10).

In tax year 2015, B has federal gross income of $150,000, and deductible operating expenses of $95,000; its federal NOL deduction for the year is $55,000; no statutory adjustments apply to its entire net income; it uses 50% of its PNOLC subtraction pool pursuant to a valid election under Ad. Code § 11-654.1(b)(4).

Under the steps above, B would calculate its NOL carryforward for the GCT as follows:

B’s NOL carryforward balance was $100,000 at the end of its 2014 tax year.

B did not incur an NOL in 2015.

The amount of NOLs that B would have been able to use under the GCT is $55,000 ($150,000 minus $95,000 = $55,000).

The NOL-equivalent amount of PNOLCs that B used under Subchapter 3-A is $50,000 ([$40,000 x 0.885] / 0.8 / 0.885 = $50,000).

B’s new NOL carryforward balance under the GCT is $45,000 ($100,000 - $55,000 = $45,000).

Prior net operating loss (PNOL) conversion subtraction

1. Are the PNOL conversion subtraction and the net operating loss deduction (NOLD) applied to business income pre-apportionment or post-apportionment?

For tax years beginning on or after January 1, 2015, both the PNOL conversion subtraction and the NOLD are applied against apportioned business income.

2. My corporation has a net operating loss carryforward from a tax year prior to January 1, 2015. Where is this loss carryforward reported on the corporation’s NYC-2 or NYC-2A tax return?

Unused net operating losses incurred for tax years beginning prior to January 1, 2015, must be converted into a prior net operating loss conversion (PNOLC) subtraction pool. The PNOLC pool and the amount to deduct annually are computed on Form NYC-2.3, Prior Net Operating Loss Conversion (PNOLC) Subtraction, and reported on Schedule B, line 33 on Form NYC-2 or NYC-2A. Unused net operating losses from tax years beginning prior to January 1, 2015, are not included on Schedule B, line 35, Net operating loss deduction, of Form NYC-2 or NYC-2A.

3. How does a subchapter 3-A taxpayer carryback a net operating loss incurred in a tax year beginning after January 1, 2015, to a tax year that began on or after January 1, 2015?

In order to carryback the loss, file an amended return for the year to which the NOL is being carried back, and include the amount of NOL being carried back on Form NYC-2 or NYC-2A Schedule B, Line 35. If the NOL is being carried back to the first tax year that begins on or after January 1, 2015, file a paper return and write in the NOL on Schedule B, Line 35. Form NYC-2.4 must be attached to the amended return, showing the specific tax year from which NOLs have been used to reduce business income in Schedule A. A copy of the return previously filed with the City for the loss year must also be attached to the amended return.

Note that an NOL may be carried back three taxable years preceding the tax year of the loss (the loss year). However, a loss cannot be carried back to a tax year beginning before January 1, 2015. The loss is first carried to the earliest of the three tax years preceding the loss year. If the loss is not entirely used in that year, it is carried to the second tax year preceding the loss year, and any remaining amount is carried to the third tax year immediately preceding the loss year. Any unused amount of loss then remaining may be carried forward for as many as 20 tax years following the loss year. Administrative Code § 11-654.1(3)(d).

4. How does a subchapter 3-A taxpayer revoke its 50% PNOLC subtraction election?

Taxpayers who have made the 50% PNOLC subtraction election can revoke that election by timely filing an amended 2015 Form NYC-2 or NYC-2A return. The prior net operating loss conversion subtraction amount on Line 33 of Schedule B should reflect a 10% PNOLC subtraction allotment, and a revised Form NYC-2.3 must be attached which indicates that the PNOLC pool will be utilized over a ten year period.

An amended Form NYC-2 or NYC-2A return must be filed along with a revised Form NYC-2.3 for each subsequent tax year in which the taxpayer could have claimed a PNOLC subtraction or carried forward an unused PNOLC subtraction balance.

5. Can I still make changes to my base year UNOL calculation?

Any change to a taxpayer’s UNOL may be made within the general 3-year limitations period for assessments and refunds provided under Admin Code Section 11-674(1), determined with regard to an extension of time agreed to under 11-674(3)(b), for the return on which a PNOLC subtraction is first claimed.

Repeal of the banking corporation tax (BCT) for C-Corporations

1. When does a fiscal-year BCT filer become subject to tax under Subchapter 3-A?

The BCT will not apply to C-corporations for tax years beginning on or after January 1, 2015. Therefore, a former BCT taxpayer is subject to tax under Subchapter 3-A starting with its first fiscal tax year that begins on or after January 1, 2015.

Example:
An BCT taxpayer with a fiscal tax year beginning on October 1, 2014 will be subject to tax under the BCT until September 30, 2015. The taxpayer will then be subject to tax under Subchapter 3-A for its fiscal tax year that begins on October 1, 2015.

Regulations

1. What is the status of New York City’s regulations (formally referred to as rules) for the new Business Corporation tax?

The City intends to issue rules that generally correspond to the regulations New York State will issue under Article 9-A of the Tax Law to implement corporate tax reform, in so far as the underlying statutes themselves correspond. The City will make draft regulations available after the State has finalized its new and revised regulations and indicates that it will initiate adoption under the formal New York State Administrative Procedures Act. As they are developed, drafts of various regulatory amendments will be posted to the New York State Department of Taxation and Finance website for public comment. These draft regulatory amendments are not final and should not be relied upon.

Estimated tax

1. For purposes of the exceptions to the underpayment of estimated tax penalty, how does a Subchapter 3-A taxpayer determine if it is a large corporation?

A large corporation is one that had, or whose predecessor had, business income allocated within the City, of at least $1 million for any of the three tax years immediately preceding the tax year for which the exception is being sought. See, Administrative Code § 11-676(5)(a).