Current through 2021 NY Law Chapters 1-430, 433, 435-440, 445, 450, 453-455, 457, 458, 460, 462, 463, 466-472, 474-480
(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.Amended by New York Laws 2016, ch. 60,Sec. Q-17, eff. 4/13/2016.Amended by New York Laws 2014, ch. 59,Sec. A-23, eff. 1/1/2015.