N.Y. Comp. Codes R. & Regs. tit. 20 § 37.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 37.1 - Consent of the Commissioner of Taxation and Finance

(a)

(1) The consent of the Commissioner of Taxation and Finance must be secured by every domestic corporation which seeks to:

(i) dispose of all or substantially all of its assets to a new corporation (section 909[d] of the Business Corporation Law);

(ii) merge or consolidate with a foreign corporation where the surviving or consolidated corporation is a foreign corporation (section 907[f] of the Business Corporation Law);

(iii) dissolve (section 1004 of the Business Corporation Law); or

(iv) reinstate its corporate status after being dissolved by the Secretary of State by proclamation (section 203-a[7] of the Tax Law).

(2) The consent of the Commissioner of Taxation and Finance must be secured by every foreign corporation which:

(i) applies for authority to do business in New York State (section 1304[a] [8] or section 1530[a][8] of the Business Corporation Law), provided such corporation does not make the statement regarding its lack of activity in this State provided for by section 1304 (a)(8) or section 1530 (a)(8) of the Business Corporation Law;

(ii) seeks to surrender its authority to do business in New York State (section 1310[b] of the Business Corporation Law); or

(iii) seeks to restore its authority to do business in New York State after annulment thereof by the Secretary of State by proclamation (section 203-b[7] of the Tax Law).

(3) Before the consent of the Commissioner of Taxation and Finance is issued for each of the corporate processes described in paragraphs (1) and (2) of this subdivision and for all other cases where a domestic or foreign corporation is required by any other statute to secure such consent, the taxpayer must have filed all tax reports or returns and paid all fees and taxes imposed under the Tax Law or any related statute, as defined in section 1800 of the Tax Law, as well as penalties and interest charges related thereto, accrued against the taxpayer.

(b)

(1) For the corporate processes described in subparagraphs (i), (ii) and (iii) of paragraph (1) of subdivision (a) of this section and subparagraph (ii) of paragraph (2) of subdivision (a) of this section and for all like corporate processes provided for by any other statute, the corporate franchise tax report showing the computation of corporate franchise tax for the taxable year (see section 1-2.4 of this Title - Definition of taxable year) which includes the proposed date of the corporate process and for the next preceding taxable year may be made, to the extent necessary, on an estimated basis and must have annexed thereto an affidavit of an officer containing a computation of such tax of the taxpayer up to the nearest practicable date and explanation of the manner of computation of such tax on an estimated basis for the period between such date and the proposed date of the corporate process. At the time of filing a corporate franchise tax report done on an estimated basis, the Commissioner of Taxation and Finance may require a deposit of money or may prescribe some other method of securing the payment of corporate franchise tax as finally computed, in order to protect the interests of New York State.

(2) Where a corporate franchise tax report done on an estimated basis is filed, a final report must be filed with the Department of Taxation and Finance within 30 days after the corporate process is effective. The Commissioner of Taxation and Finance may grant a reasonable extension of time for filing the final report (see section 6-4.4 of this Title - Extension of time for filing reports).

(c) Where an application for consent to dissolution is filed with the Commissioner of Taxation and Finance prior to the commencement of any tax year or period, by a corporation subject to tax under Article 9 or 9-A of the Tax Law, such corporation shall not be liable for any tax imposed by such articles for such following year or period (except as may be otherwise provided in sections 191, 182[9], 182-a[9], 182-b[9] and 209[3] of the Tax Law), provided:

(1) its certificate of dissolution is duly filed in the office of the Secretary of State within 90 days after the commencement of such tax year or period, and

(2) such corporation does not conduct business in such tax year or period.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 37.1