New York Consolidated Laws, Tax Law - TAX § 209. Imposition of tax;  exemptions

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 this state in a corporate or organized capacity, or of maintaining an office in this state, or of deriving receipts from activity in this state, for all or any part of each of its fiscal or calendar years, every domestic or foreign corporation, except corporations specified in subdivision four of this section, shall annually pay a franchise tax, upon the basis of its business income base, or upon such other basis as may be applicable as hereinafter provided, for such fiscal or calendar year or part thereof, on a report which shall be filed, except as hereinafter provided, on or before the fifteenth day of March next succeeding the close of each such year, for taxable years beginning before January first, two thousand sixteen, and on or before the fifteenth day of April next succeeding the close of each such year, for taxable years beginning on or after January first, two thousand sixteen, or, in the case of a corporation which reports on the basis of a fiscal year, within two and one-half months after the close of such fiscal year, for taxable years beginning before January first, two thousand sixteen, and on or before the fifteenth day of the fourth month after the close of such fiscal year, for taxable years beginning on or after January first, two thousand sixteen, and shall be paid as hereinafter provided.

(b) A corporation is deriving receipts from activity in this state if it has receipts within this state of one million dollars or more in the 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 this state” means the receipts included in the numerator of the apportionment factor determined under section two hundred ten-A of this article.  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 this state if (i) it has issued credit cards to one thousand or more customers who have a mailing address within this state 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 this state 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 subdivision, 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 this state 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 this state if the receipts within this state of the members of the unitary group that have at least ten thousand dollars of receipts within this state 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) of this subdivision, 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 this state if the number of customers, locations, or customers and locations, within this state of the members of the unitary group that have at least ten customers, locations, or customers and locations, within this state 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 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) If a partnership is doing business, employing capital, owning or leasing property in this state, maintaining an office in the state, or deriving receipts from activity in this state, any corporation that is a partner in such partnership shall be subject to tax under this article as described in the regulations of the commissioner.

2. A foreign corporation shall not be deemed to be doing business, employing capital, owning or leasing property, or maintaining an office in this state, or deriving receipts from activity in this state, for the purposes of this article, by reason of (a) the maintenance of cash balances with banks or trust companies in this state, or (b) the ownership of shares of stock or securities kept in this state, 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 this state 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 this state, and does not employ capital or own or lease property in this state, or (e) the keeping of books or records of a corporation in this state 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 this state, or (f) any combination of the foregoing activities.

2-a. An alien corporation shall not be deemed to be doing business, employing capital, owning or leasing property, maintaining an office in this state, or deriving receipts from activity in this state, for the purposes of this article, if its activities in this state are limited solely to (a) investing or trading in stocks and securities for its own account within the meaning of clause (ii) of subparagraph (A) of paragraph (2) of subsection (b) of section eight hundred sixty-four of the internal revenue code  1 or (b) investing or trading in commodities for its own account within the meaning of clause (ii) of subparagraph (B) of paragraph (2) of subsection (b) of section eight hundred sixty-four of the internal revenue code or (c) any combination of activities described in paragraphs (a) and (b) of this subdivision.  An alien corporation that under any provision of the internal revenue code is not treated as a “domestic corporation” as defined in section seven thousand seven hundred one of such code and has no effectively connected income for the taxable year pursuant to clause (iv) of the opening paragraph of subdivision nine of section two hundred eight of this article shall not be subject to tax under this article for that taxable year.  For purposes of this article, an alien corporation is a corporation organized under the laws of a country, or any political subdivision thereof, other than the United States, or organized under the laws of a possession, territory or commonwealth of the United States.

3. Any receiver, referee, trustee, assignee or other fiduciary, or any officer or agent appointed by any court, who conducts the business of any corporation, shall be subject to the tax imposed by this article in the same manner and to the same extent as if the business were conducted by the agents or officers of such corporation.  A dissolved corporation which continues to conduct business shall also be subject to the tax imposed by this article.

4. Corporations liable to tax under sections one hundred eighty-three to one hundred eighty-four-a , inclusive, corporations taxable under article thirty-three of this chapter, any trust company organized under a law of this state all of the stock of which is owned by not less than twenty savings banks organized under a law of this state, a captive REIT or a captive RIC filing a combined return under subdivision (f) of section fifteen hundred fifteen of this chapter, and housing companies organized and operating pursuant to the provisions of article two or article five of the private housing finance law and housing development fund companies organized pursuant to the provisions of article eleven of the private housing finance law shall not be subject to tax under this article.

5. For any taxable year of a real estate investment trust as defined in section eight hundred fifty-six of the internal revenue code  2 in which such trust is subject to federal income taxation under section eight hundred fifty-seven of such code   3, such trust shall be subject to a tax computed under either paragraph (a) or (d) of subdivision one of section two hundred ten of this chapter, whichever is greater, and shall not be subject to any tax under article thirty-three of this chapter except for a captive REIT required to file a combined return under subdivision (f) of section fifteen hundred fifteen of this chapter.  In the case of such a real estate investment trust, including a captive REIT as defined in section two of this chapter, the term “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   4 plus the amount taxable under paragraph three of subdivision (b) of section eight hundred fifty-seven of such code, subject to the modifications required by subdivision nine of section two hundred eight of this article.

6. For any taxable year of a DISC, not exempt from tax under paragraph (i) of subdivision nine of section two hundred eight of this article, the taxes imposed by subdivision one of this section shall be computed only under either paragraph (b) or (d) of subdivision one of section two hundred ten of this chapter, whichever is greater.

7. For any taxable year, beginning on or after January first, nineteen hundred eighty of a regulated investment company, as defined in section eight hundred fifty-one of the internal revenue code  5, in which such company is subject to federal income taxation under section eight hundred fifty-two of such code, such company shall be subject to a tax computed under either paragraph (a) or (d) of subdivision one of section two hundred ten of this chapter, whichever is greater, and shall not be subject to any tax under article thirty-three of this chapter except for a captive RIC required to file a combined return under subdivision (f) of section fifteen hundred fifteen of this chapter.  In the case of such a regulated investment company, including a captive RIC as defined in section two of this chapter, the term “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  6 plus the amount taxable under paragraph three of subdivision (b) of section eight hundred fifty-two of such code subject to the modifications required by subdivision nine of section two hundred eight of this chapter.

8. For any taxable year beginning on or after January first, two thousand six, a corporation that is no longer doing business, employing capital, or owning or leasing property, or deriving receipts from activity in this state in a corporate or organized capacity that has filed a final tax return with the department for the last tax year it was doing business and has no outstanding tax liability for such final tax return or any tax return for prior tax years shall be exempt from all taxes imposed by paragraph (d) of subdivision one of section two hundred ten of this article for tax years following the last year such corporation was doing business.

9. For any taxable year beginning on or after January first, nineteen hundred eighty-seven, an organization described in paragraph two or twenty-five of subdivision (c) of section five hundred one of the internal revenue code of nineteen hundred eighty-six  7 shall be exempt from all taxes imposed by this article.

10. QSSS.  For exemption from tax of a qualified subchapter S subsidiary, see paragraph (k) of subdivision nine of section two hundred eight of this article.

11. Except as provided in subparagraph eighteen of paragraph (a) of subdivision nine of section two hundred eight of this article, a corporation that is a qualified entity of a New York state innovation hot spot shall be subject only to the fixed dollar minimum tax under paragraph (d) of subdivision one of section two hundred ten of this article, as provided in section thirty-eight of this chapter.

12. All farmers', fruit growers' and other like agricultural corporations organized and operated on a co-operative basis for the purposes expressed in and as provided under the co-operative corporations law of the state of New York, whether or not such corporations have capital stock, shall be exempt from taxation under the provisions of this article.

1 26 USCA § 864.
2 26 USCA § 856.
3 26 USCA § 857.
4 26 USCA §§ 857 and 858.
5 26 USCA § 851.
6 26 USCA §§ 852 and 855.
7 26 USCA § 501.

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