2000-01 Article VII Revenue Bill
STATE OF NEW YORK
________________________________________________________________________
S. 6295 A. 9295
SENATE - ASSEMBLY
January 13, 2000
___________
IN SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti-
cle seven of the Constitution -- read twice and ordered printed, and
when printed to be committed to the Committee on Finance
IN ASSEMBLY -- A BUDGET BILL, submitted pursuant to article seven of the
Constitution -- read once and referred to the Committee on Ways and
Means
AN ACT to amend the tax law, the general city law and the public author-
ities law, in relation to providing transition rules for taxpayers
removed from taxation under section 186 of the tax law by reason of
this act, reducing the rate and measure of certain taxes under
sections 186-a and 189 of the tax law; and in relation to sales and
compensating use taxes on certain utility services imposed by article
28 of such law and pursuant to the authority of article 29 thereof and
repealing sections 186, 186-b, 189, 189-a and subdivision 3 of section
192 of the tax law relating thereto; and providing for the repeal of
certain provisions upon expiration thereof (A); to amend the public
authorities law, the economic development law and the tax law, in
relation to providing additional low cost power for upstate economic
development purposes and providing a tax credit and providing for the
repeal of certain provisions upon expiration thereof (B); to amend the
tax law, in relation to providing credits under articles 9-A and 22
for research activities in upstate high technology enterprise zones
(C); to amend the tax law, in relation to enhancing the qualified
emerging technology company employment tax credit and capital tax
credit under articles 9-A and 22 thereof for taxpayers which are qual-
ified new technology companies (D); to amend the tax law, in relation
to providing a credit under articles 9-A and 22 for interest paid on
loans for acquisition of qualified property used in an upstate high
technology enterprise zone (E); to amend the tax law, in relation to
providing a credit under articles 9-A and 22 for taxes paid on energy
sources consumed in upstate high technology enterprise zones (F); to
amend the tax law, in relation to reducing the article 9-A corporation
franchise tax rate on small business taxpayers and repealing the tax,
except for the fixed dollar minimum, on New York S corporations (G);
to amend the tax law, in relation to establishing a credit, in arti-
cles 9, 9-A, 22, 32 and 33 thereof, for increased urban employment
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12335-02-0
S. 6295 2 A. 9295
outside of the metropolitan commuter transportation district (H); to
amend chapter 407 of the laws of 1999 amending the tax law and other
laws relating to tax reductions and other provisions to implement the
1999-2000 state fiscal plan, in relation to the effective dates of a
provision thereof with respect to the alcoholic beverage tax on beer
(I); to amend the tax law, in relation to exempting from sales and
compensating use tax certain tangible personal property and services
relating to services provided by operators of internet data centers
(J); to amend the public housing law and the tax law, in relation to
providing a credit against the articles 9-A, 22, 32 and 33 franchise
and income taxes for construction or rehabilitation of low-income
housing (K); to amend the tax law, in relation to allowing taxpayers
which are biotechnology companies to claim a refund of their invest-
ment tax credits claimed under article 9-A thereof (L); to amend the
tax law and the education law, in relation to creating a tax credit
under the franchise and income taxes to enhance the supply of environ-
mentally sound buildings (M); to amend the tax law and the transporta-
tion law, in relation to a tax credit for transportation improvement
contributions (N); to amend the tax law, in relation to exempting
certain property and services used in farm production and certain
horse boarding from sales and compensating use taxes imposed by arti-
cle 28 of such law and pursuant to the authority of article 29 there-
of; and to repeal certain provisions of the tax law containing defi-
nitions made obsolete by other amendments in this act (O); to amend
the tax law, in relation to eliminating the fixed dollar minimum tax
under article 9-A of such law for certain homeowners associations (P);
to amend the tax law, in relation to eliminating the minimum tax
imposed under article 13-A of such law (Q); to amend the tax law, in
relation to joint, multi-jurisdiction, or out-of-state lottery games
and to repeal certain provisions of such law relating thereto (R); to
amend the tax law and the vehicle and traffic law, in relation to
modifying the distribution of funds from the motor fuel excise tax,
the petroleum business tax and certain motor vehicle fees to the dedi-
cated highway and bridge trust fund and the dedicated mass transporta-
tion trust fund; to amend the state finance law, the highway law and
the vehicle and traffic law, in relation to the deposit of certain
fees in the dedicated highway and bridge trust fund; and to repeal
sections 89 and 89-a of the state finance law, establishing, respec-
tively, the emergency highway reconditioning and preservation fund and
the emergency highway construction and reconstruction fund (S)
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
1 Section 1. This act enacts into law major components of legislation
2 which are necessary to implement the state fiscal plan for the 2000-2001
3 state fiscal year. Each component is wholly contained within a Part
4 identified as Parts A through S. The effective date for each particular
5 provision contained within such Part is set forth in the last section of
6 such Part. Any provision in any section contained within a Part, includ-
7 ing the effective date of the Part, which makes reference to a section
8 "of this act", when used in connection with that particular component,
9 shall be deemed to mean and refer to the corresponding section of the
10 Part in which it is found. Section three of this act sets forth the
11 general effective date of this act.
S. 6295 3 A. 9295
1 PART A
2 Section 1. Paragraph (b) of subdivision 1 of section 183 of the tax
3 law, as amended by chapter 309 of the laws of 1996, is amended to read
4 as follows:
5 (b) For the privilege of exercising its corporate franchise, or of
6 doing business, or of employing capital, or of owning or leasing proper-
7 ty in this state in a corporate or organized capacity, or of maintaining
8 an office in this state, every domestic corporation, joint-stock company
9 or association formed for or principally engaged in the conduct of
10 canal, steamboat, ferry (except a ferry company operating between any of
11 the boroughs of the city of New York under a lease granted by the city),
12 express, navigation, pipe line, transfer, baggage express, omnibus,
13 taxicab, telegraph, or telephone business, or formed for or principally
14 engaged in the conduct of two or more of such businesses, and every
15 domestic corporation, joint-stock company or association formed for or
16 principally engaged in the conduct of a railroad, palace car, sleeping
17 car or trucking business or formed for or principally engaged in the
18 conduct of two or more of such businesses and which has made an election
19 pursuant to subdivision ten of this section, and every other domestic
20 corporation, joint-stock company or association principally engaged in
21 the conduct of a transportation or transmission business, except a
22 corporation, joint-stock company or association formed for or principal-
23 ly engaged in the conduct of a railroad, palace car, sleeping car or
24 trucking business or formed for or principally engaged in the conduct of
25 two or more of such businesses and which has not made the election
26 provided for in subdivision ten of this section, and except a corpo-
27 ration, joint-stock company or association principally engaged in the
28 conduct of aviation (including air freight forwarders acting as princi-
29 pal and like indirect air carriers) and except a corporation principally
30 engaged in providing telecommunication services between aircraft and
31 dispatcher, aircraft and air traffic control or ground station and
32 ground station (or any combination of the foregoing), at least ninety
33 percent of the voting stock of which corporation is owned, directly or
34 indirectly, by air carriers and which corporation's principal function
35 is to fulfill the requirements of (i) the federal aviation adminis-
36 tration (or the successor thereto) or (ii) the international civil
37 aviation organization (or the successor thereto), relating to the exist-
38 ence of a communication system between aircraft and dispatcher, aircraft
39 and air traffic control or ground station and ground station (or any
40 combination of the foregoing) for the purposes of air safety and naviga-
41 tion and except a corporation, joint-stock company or association
42 subject to taxation under [section one hundred eighty-six or] article
43 thirty-two of this chapter, shall pay, in advance, an annual tax to be
44 computed upon the basis of the amount of its capital stock within this
45 state during the preceding year, and upon each dollar of such amount.
46 Provided, however, a corporation, joint-stock company or association
47 formed for or principally engaged in the transportation, transmission or
48 distribution of gas, electricity or steam shall not be subject to tax
49 under this section or section one hundred eighty-four of this article.
50 § 2. Subdivision 1 of section 184 of the tax law, as amended by
51 section 119 of part A of chapter 389 of the laws of 1997, is amended to
52 read as follows:
53 1. The term "corporation" as used in this section shall include an
54 association, within the meaning of paragraph three of subsection (a) of
55 section seventy-seven hundred one of the internal revenue code (includ-
S. 6295 4 A. 9295
1 ing a limited liability company), a publicly traded partnership treated
2 as a corporation for purposes of the internal revenue code pursuant to
3 section seventy-seven hundred four thereof.
4 Every corporation, joint-stock company or association formed for or
5 principally engaged in the conduct of canal, steamboat, ferry (except a
6 ferry company operating between any of the boroughs of the city of New
7 York under a lease granted by the city), express, navigation, pipe line,
8 transfer, baggage express, omnibus, taxicab, telegraph or local tele-
9 phone business, or formed for or principally engaged in the conduct of
10 two or more of such businesses, and every corporation, joint-stock
11 company or association formed for or principally engaged in the conduct
12 of surface railroad, whether or not operated by steam, subway railroad,
13 elevated railroad, palace car, sleeping car or trucking business or
14 formed for or principally engaged in the conduct of two or more such
15 businesses and which has made an election pursuant to subdivision ten of
16 section one hundred eighty-three of this article, and every other corpo-
17 ration, joint-stock company or association formed for or principally
18 engaged in the conduct of a transportation or transmission business
19 (other than a telephone business), except a corporation, joint-stock
20 company or association formed for or principally engaged in the conduct
21 of a surface railroad, whether or not operated by steam, subway rail-
22 road, elevated railroad, palace car, sleeping car or trucking business
23 or formed for or principally engaged in the conduct of two or more of
24 such businesses and which has not made the election provided for in
25 subdivision ten of section one hundred eighty-three of this article,
26 and, except a corporation, joint-stock company or association principal-
27 ly engaged in the conduct of aviation (including air freight forwarders
28 acting as principal and like indirect air carriers) and except a corpo-
29 ration principally engaged in providing telecommunication services
30 between aircraft and dispatcher, aircraft and air traffic control or
31 ground station and ground station (or any combination of the foregoing),
32 at least ninety percent of the voting stock of which corporation is
33 owned, directly or indirectly, by air carriers and which corporation's
34 principal function is to fulfill the requirements of (i) the federal
35 aviation administration (or the successor thereto) or (ii) the interna-
36 tional civil aviation organization (or the successor thereto), relating
37 to the existence of a communication system between aircraft and
38 dispatcher, aircraft and air traffic control or ground station and
39 ground station (or any combination of the foregoing) for the purposes of
40 air safety and navigation and except a corporation, joint-stock company
41 or association which is liable to taxation under [section one hundred
42 eighty-six or] article thirty-two of this chapter, for the privilege of
43 exercising its corporate franchise, or of doing business, or of employ-
44 ing capital, or of owning or leasing property in this state in a corpo-
45 rate or organized capacity, or maintaining an office in this state,
46 shall pay a franchise tax which shall be equal to (i) three-quarters of
47 one percent for taxable years ending before two thousand one, provided
48 that for a taxable year ending in two thousand the rate shall be reduced
49 to three-eighths of one percent effective July first, two thousand with
50 the result that for purposes of implementation of such change in rate
51 the applicable rate for such a year shall be nine-sixteenths of one
52 percent, and (ii) three-eighths of one percent for taxable years
53 commencing after two thousand, upon its gross earnings from all sources
54 within this state; except that, for taxable years commencing on or after
55 January first, nineteen hundred eighty-five and ending on or before
56 December thirty-first, nineteen hundred eighty-nine, every corporation,
S. 6295 5 A. 9295
1 joint-stock company or association formed for or principally engaged in
2 the conduct of telephone or telegraph business shall pay a franchise tax
3 which shall be equal to three-tenths of one per centum upon its gross
4 earnings from all sources within this state and, for taxable years
5 commencing on or after January first, nineteen hundred ninety, every
6 corporation, joint-stock company or association formed for or principal-
7 ly engaged in the conduct of local telephone business, or telegraph
8 business shall pay a franchise tax which shall be equal to (i) three-
9 quarters of one percent for taxable years ending before two thousand
10 one, provided that for a taxable year ending in two thousand the rate
11 shall be reduced to three-eighths of one percent effective July first,
12 two thousand with the result that for purposes of implementation of such
13 change in rate the applicable rate for such a year shall be nine-six-
14 teenths of one percent, and (ii) three-eighths of one percent for taxa-
15 ble years commencing after two thousand, upon its gross earnings from
16 all sources within this state, except that a corporation, joint-stock
17 company or association formed for or principally engaged in the conduct
18 of a local telephone business shall exclude the following earnings (but
19 not in any event earnings derived by such taxpayer from the provision of
20 carrier access services) derived by such taxpayer from sales for ulti-
21 mate consumption of telecommunications service to its customers (i)
22 thirty percent of separately charged intra-LATA toll service (which
23 shall also include interregion regional calling plan service) and (ii)
24 one hundred percent of separately charged inter-LATA, interstate or
25 international telecommunications service; and except that corporations,
26 joint-stock companies or associations formed for or principally engaged
27 in the conduct of surface railroad, whether or not operated by steam,
28 subway railroad, elevated railroad, palace car or sleeping car, business
29 or any other corporation formed for or principally engaged in the
30 conduct of a railroad business, for taxable years prior to nineteen
31 hundred ninety-seven, and corporations, joint-stock companies or associ-
32 ations formed for or principally engaged in the conduct of canal, steam-
33 boat, ferry (except a ferry company operating between any of the
34 boroughs of the city of New York under a lease granted by the city),
35 navigation or any corporation formed for or principally engaged in the
36 operation of vessels, shall pay a franchise tax which shall be equal to
37 three-quarters of one per centum upon its gross earnings from all sourc-
38 es within this state, excluding earnings derived from business of an
39 interstate or foreign character; except that for taxable years beginning
40 in nineteen hundred ninety-seven or thereafter, in the case of a corpo-
41 ration, joint-stock company or association which, with respect to taxa-
42 ble years beginning after nineteen hundred ninety-seven, has made an
43 election pursuant to subdivision ten of section one hundred eighty-three
44 of this article and which is formed for or principally engaged in the
45 conduct of surface railroad, whether or not operated by steam, subway
46 railroad, elevated railroad, palace car, sleeping car or trucking busi-
47 ness or formed for or principally engaged in the conduct of two or more
48 of such businesses, such corporation, joint-stock company or association
49 shall pay a franchise tax which shall be equal to (i) six-tenths of one
50 percent for taxable years ending before two thousand one, provided that
51 for a taxable year ending in two thousand the rate shall be reduced to
52 three-eighths of one percent effective July first, two thousand with the
53 result that for purposes of implementation of such change in rate the
54 applicable rate for such a year shall be thirty-nine eightieths of one
55 percent, and (ii) three-eighths of one percent for taxable years
56 commencing after two thousand, upon its gross earnings from all sources
S. 6295 6 A. 9295
1 within this state, provided that in the case of a corporation, joint-
2 stock company or association formed for or principally engaged in the
3 conduct of surface railroad, whether or not operated by steam, subway
4 railroad, elevated railroad, palace car or sleeping car business, or
5 formed for or principally engaged in the conduct of two or more of such
6 businesses, such gross earnings shall not include earnings derived from
7 business of an interstate or foreign character.
8 Provided, however, with respect to railroad, elevated railroad, palace
9 car or sleeping car business or any other corporation formed for or
10 principally engaged in the conduct of a railroad business and canal,
11 steamboat, ferry (except a ferry company operating between any of the
12 boroughs of the city of New York under a lease granted by the city),
13 navigation or any corporation formed for or principally engaged in the
14 operation of vessels where the gross earnings from such transportation
15 business both originating and terminating within this state and travers-
16 ing both this state and another state or states or country shall be
17 subject to the franchise tax imposed by this section (except where such
18 corporation, joint-stock company or association is formed for or princi-
19 pally engaged in the conduct of a railroad (including surface railroad,
20 whether or not operated by steam, subway railroad or elevated railroad),
21 palace car or sleeping car business or formed for or principally engaged
22 in the conduct of two or more of such businesses, and has not made the
23 election provided for under subdivision ten of section one hundred
24 eighty-three of this article) and such earnings shall be allocated to
25 this state in the same ratio that the mileage within the state bears to
26 the total mileage of such business. Provided, further, a corporation,
27 joint-stock company or association formed for or principally engaged in
28 the transportation, transmission or distribution of gas, electricity or
29 steam shall not be subject to tax under this section or section one
30 hundred eighty-three of this article.
31 The term "local telephone business" means the provision or furnishing
32 of telecommunication services for hire wherein the service furnished by
33 the provider thereof consists of carrier access service or the service
34 originates and terminates within the same local access and transport
35 area ("LATA"), a local access and transport area being that geographic
36 area as established and approved, and as so set and in existence on July
37 first, nineteen hundred ninety-four, pursuant to the modification of
38 final judgment in United States v. Western Electric Company (civil
39 action no. 82-0192) in the United States district court for the District
40 of Columbia or within the LATA-like Rochester non-associated independent
41 area.
42 The term "telecommunication services" shall have the meaning ascribed
43 to such term in section one hundred eighty-six-e of this article.
44 § 3. Sections 186 and 186-b of the tax law are REPEALED.
45 § 4. Subdivision 1, paragraphs (b), (c) and (d) of subdivision 2 and
46 subdivision 6 of section 186-a of the tax law, subdivision 1 as amended
47 by section 121 of part A of chapter 389 of the laws of 1997, paragraphs
48 (b), (c) and (d) of subdivision 2 as amended by chapter 536 of the laws
49 of 1998 and subdivision 6 as added by chapter 321 of the laws of 1937
50 and as renumbered by chapter 103 of the laws of 1981, are amended to
51 read as follows:
52 1. Notwithstanding any other provision of this chapter, or of any
53 other law, (a) a tax equal to [three and one-half percent prior to Octo-
54 ber first, nineteen hundred ninety-eight,] three and one-quarter percent
55 [from October first, nineteen hundred ninety-eight] through December
56 thirty-first, nineteen hundred ninety-nine, and two and one-half percent
S. 6295 7 A. 9295
1 on and after January first, two thousand of its gross income is hereby
2 imposed upon every provider of telecommunication services doing business
3 in this state which is subject to the supervision of the state depart-
4 ment of public service which has a gross income for the year ending
5 December thirty-first in excess of five hundred dollars;
6 (b) a tax equal to (1) two and one-half percent on and after January
7 first, two thousand of that portion of its gross income derived from the
8 transportation, transmission or distribution of gas or electricity by
9 means of conduits, mains, pipes, wires, lines or the like and (2) two
10 and one-tenth percent from January first, two thousand through December
11 thirty-first, two thousand, two and one-tenth percent from January
12 first, two thousand one through December thirty-first, two thousand one,
13 one and seven-tenths percent from January first, two thousand two
14 through December thirty-first, two thousand two, eight-tenths of one
15 percent from January first, two thousand three through December thirty-
16 first, two thousand three, four-tenths of one percent from January
17 first, two thousand four through December thirty-first, two thousand
18 four and zero percent commencing January first, two thousand five of all
19 of its other gross income, is hereby imposed upon every utility not
20 taxed under paragraph (a) of this subdivision doing business in this
21 state which is subject to the supervision of the state department of
22 public service which has a gross income for the year ending December
23 thirty-first in excess of five hundred dollars, except motor carriers or
24 brokers subject to such supervision under [article three-b of] the
25 public service law; and
26 (c) a tax equal to [three and one-half percent prior to October first,
27 nineteen hundred ninety-eight,] three and one-quarter percent [from
28 October first, nineteen hundred ninety-eight] through December thirty-
29 first, nineteen hundred ninety-nine, [and] two and [one-half] one-tenth
30 percent [on and after] from January first, two thousand[,] through
31 December thirty-first, two thousand, two and one-tenth percent from
32 January first, two thousand one through December thirty-first, two thou-
33 sand one, one and seven-tenths percent from January first, two thousand
34 two through December thirty-first, two thousand two, eight-tenths of one
35 percent from January first, two thousand three through December thirty-
36 first, two thousand three, four-tenths of one percent from January
37 first, two thousand four through December thirty-first, two thousand
38 four and zero percent commencing January first, two thousand five of its
39 gross operating income is hereby imposed upon every other utility doing
40 business in this state which has a gross operating income for the year
41 ending December thirty-first in excess of five hundred dollars, which
42 taxes shall be in addition to any and all other taxes and fees imposed
43 by any other provision of law for the same period.
44 (b) the word "person" means persons, corporations, companies, associ-
45 ations, joint-stock companies or associations, partnerships and limited
46 liability companies, estates, assignee of rents, any person acting in a
47 fiduciary capacity, or any other entity, and persons, their assignees,
48 lessees, trustees or receivers, appointed by any court whatsoever, or by
49 any other means, except the state[,]; municipalities, political and
50 civil subdivisions of the state or municipality[,] and public districts
51 [and] (provided, however, that with respect to gas, electricity and gas
52 or electric service, including the sale of the transportation, trans-
53 mission or distribution of gas or electricity, such municipalities,
54 political and civil subdivisions and public districts shall be excluded
55 from the definition of "person" if they own and operate facilities which
56 are used to generate or distribute electricity or distribute gas and
S. 6295 8 A. 9295
1 they distribute and sell such gas or electricity solely at retail, sole-
2 ly within their respective jurisdiction; or provided, further, with
3 respect to the sale of electricity or the transportation, transmission
4 or distribution of electricity, a municipality shall be excluded from
5 the definition of "person" if it sells electricity at retail where all
6 such electricity (excluding temporary substitution power during outages
7 or periods of reduced output) has been generated solely by and purchased
8 solely from the state or a public authority of the state); corporations
9 and associations which are organized and operated exclusively for reli-
10 gious, charitable or educational purposes, no part of the net earnings
11 of which inures to the benefit of any private shareholder or individual,
12 and which are described in paragraph four of subdivision (a) of section
13 eleven hundred sixteen of this chapter where such organization resells
14 such gas or electricity or gas or electric service as landlord to its
15 tenants in buildings owned by such organization; and excepting a corpo-
16 ration organized and operated exclusively for the purpose of leasing
17 from a city in this state a water-works system designed to supply water
18 at cost to users thereof for discharge, either before or after indus-
19 trial use, into a river within such city in order to improve the flow
20 and condition of such river and thereby to provide a means to relieve
21 such river from pollution;
22 (c) the words "gross income" mean and include receipts received in or
23 by reason of any sale, conditional or otherwise, (except sales herein-
24 after referred to with respect to which it is provided that profits from
25 the sale shall be included in gross income) made or service rendered for
26 ultimate consumption or use by the purchaser in this state, including
27 cash, credits and property of any kind or nature (whether or not such
28 sale is made or such service is rendered for profit), without any
29 deduction therefrom on account of the cost of the property sold, the
30 cost of materials used, labor or services or other costs, interest or
31 discount paid, or any other expense whatsoever.
32 (1) Provided, however, that all receipts from sales of the transporta-
33 tion, transmission or distribution of gas or electricity by means of
34 conduits, mains, pipes, wires, lines or the like, rendered or performed
35 in this state, shall be included in gross income except receipts from
36 (i) sales of the transportation, transmission or distribution of gas or
37 electricity to (A) a utility (excluding a public authority) which is
38 supervised by this state or another jurisdiction (where an element of
39 such supervision includes rate regulation and, for a utility supervised
40 by another jurisdiction, such supervision includes rate regulation and
41 such gas or electricity is delivered for ultimate consumption or use
42 outside this state), (B) a municipality which owns and operates facili-
43 ties which are used to generate or distribute electricity or distribute
44 gas and which distributes and sells such electricity or gas solely at
45 retail, solely within its respective jurisdiction, or (C) a public
46 authority of this state where such public authority is primarily engaged
47 in the generation and transmission or distribution of electricity or the
48 distribution of electricity or gas and at least ninety-five percent of
49 the assets of which are so devoted, provided, that, if the service area
50 or district of the authority is less than the entire state, the excluded
51 receipt shall be limited to receipts derived from the sale of transpor-
52 tation, transmission or distribution of gas or electricity, which elec-
53 tricity or gas will be sold by such authority at retail within its
54 service area or district; where, as the case may be, such utility or
55 authority purchasing such transportation, transmission or distribution
56 sells the gas or electricity being so transported, transmitted or
S. 6295 9 A. 9295
1 distributed, (ii) sales of the transportation, transmission or distrib-
2 ution of electricity to a municipality where the electricity being
3 transported has been purchased by such municipality and has been gener-
4 ated solely by and purchased solely from the state or a public authority
5 of the state (except where the electricity being transported constitutes
6 temporary substitution power being supplied during outages or periods of
7 reduced output) and where such municipality purchasing such transporta-
8 tion, transmission or distribution, sells solely at retail, solely with-
9 in its respective jurisdiction, the electricity being so transported,
10 transmitted or distributed, or (iii) sales of the transportation, trans-
11 mission or distribution of gas or electricity to corporations and asso-
12 ciations which are organized and operated exclusively for religious,
13 charitable or educational purposes, no part of the net earnings of which
14 inures to the benefit of any private shareholder or individual, and
15 which are described in paragraph four of subdivision (a) of section
16 eleven hundred sixteen of this chapter where such organization resells
17 such transportation, transmission or distribution as part of a bundled
18 gas or electric service as landlord to its tenants in buildings owned by
19 such organization.
20 (2) Provided, further, receipts received from the sale of the trans-
21 portation, transmission or distribution of gas or electricity shall mean
22 the receipts received from customers representing the noncommodity
23 charges for gas or electric service.
24 (3) Provided, further, gross income with respect to a provider of
25 telecommunication services shall not include receipts from the sale of
26 telecommunication services as such services are defined in section one
27 hundred eighty-six-e of this article.
28 (4) Provided, further, sales of gas, electricity, steam, water or
29 refrigeration or gas, electric, steam, water or refrigerator service to
30 a landlord that is a person as defined in this subdivision for resale by
31 such landlord to a tenant, for consumption by such tenant as an incident
32 to such landlord's activity of renting premises to such tenant, shall be
33 subject to the tax imposed under this section even though such sales are
34 not for ultimate consumption by such landlord. Provided, further,
35 receipts derived by a landlord from the resale for such gas, electric-
36 ity, steam, water or refrigeration or furnishing gas, electric, steam,
37 water or refrigerator service to such tenant shall be conclusively
38 presumed to be equal to such landlord's cost of the same, and, if the
39 tax under this section was imposed on the sale to such landlord, no
40 additional tax under this section shall be owing on the sale by such
41 landlord to such tenant. If, however, the tax under this section was not
42 imposed on such sale to the landlord, then such landlord on the sale to
43 its tenant shall file a return hereunder based on such landlord's cost
44 (including any associated transportation cost) of such gas, electricity,
45 steam, water or refrigeration or gas, electric, steam, water or refri-
46 gerator service.
47 (5) "Gross income" also includes profits from the sale of securities;
48 also profits from the sale of real property growing out of the ownership
49 or use of or interest in such property; also profit from the sale of
50 personal property (other than property of a kind which would properly be
51 included in the inventory of the taxpayer if on hand at the close of the
52 period for which a return is made); also receipts from interest, divi-
53 dends, and royalties, derived from sources within this state other than
54 such as are received from a corporation a majority of whose voting stock
55 is owned by the taxpaying utility, without any deduction therefrom for
56 any expenses whatsoever incurred in connection with the receipt thereof,
S. 6295 10 A. 9295
1 also profits from any transaction (except sales for resale and rentals)
2 within this state whatsoever;
3 (d) the words "gross operating income" mean and include receipts
4 received in or by reason of any sale, conditional or otherwise, made for
5 ultimate consumption or use by the purchaser of gas, electricity, steam,
6 water or refrigeration, or in or by reason of the furnishing for such
7 consumption or use of gas, electric, steam, water or refrigerator
8 service in this state, including cash, credits and property of any kind
9 or nature, without any deduction therefrom on account of the cost of the
10 property sold, the cost of materials used, labor or services or other
11 costs, interest or discount paid, or any other expenses whatsoever.
12 Provided, however, there shall be excluded from gross operating income
13 receipts representing the amount received from the resale of the trans-
14 portation, transmission or distribution of gas or electricity in this
15 state where such transportation, transmission or distribution being
16 resold is provided by a utility subject to tax under paragraph (b) of
17 subdivision one of this section; the receipts representing the amount
18 received from resale of such transportation, transmission or distrib-
19 ution shall be the amount received for such transportation, transmission
20 or distribution by such utility which initially provided such transpor-
21 tation, transmission or distribution. Provided, further, sales of gas,
22 electricity, steam, water or refrigeration or gas, electric, steam,
23 water or refrigerator service to a landlord that is a person as defined
24 in this subdivision for resale by such landlord to a tenant, for
25 consumption by such tenant as an incident to such landlord's activity of
26 renting premises to such tenant, shall be subject to the tax imposed
27 under this section even though such sales are not for ultimate consump-
28 tion by such landlord. Provided, further, receipts derived by a landlord
29 from the resale of such gas, electricity, steam, water or refrigeration
30 or furnishing gas, electric, steam, water or refrigerator service to
31 such tenant shall be conclusively presumed to be equal to such land-
32 lord's cost of the same, and, if the tax under this section was imposed
33 on the sale to such landlord, no additional tax under this section shall
34 be owing on the sale by such landlord to such tenant. If the tax under
35 this section was not imposed on such sale to the landlord, then such
36 landlord on the sale to its tenant shall file a return hereunder based
37 on such landlord's cost (including any associated transportation cost)
38 of such gas, electricity, steam, water or refrigeration or gas, elec-
39 tric, steam, water or refrigerator service;
40 [6. The tax imposed by this section shall be charged against and be
41 paid by the utility and shall not be added as a separate item to bills
42 rendered by the utility to customers or others but shall constitute a
43 part of the operating costs of such utility.]
44 § 5. Subdivisions 1, 2, 4 and 10 of section 186-a of the tax law,
45 subdivision 1 and paragraphs (b), (c) and (d) of subdivision 2 as
46 amended by section four of this act, subdivisions 2 and 4 as amended by
47 chapter 536 of the laws of 1998 and subdivision 10 as amended by chapter
48 757 of the laws of 1989 and as renumbered by chapter 316 of the laws of
49 1997, are amended to read as follows:
50 1. Notwithstanding any other provision of this chapter, or of any
51 other law, (a) a tax equal to [three and one-quarter percent through
52 December thirty-first, nineteen hundred ninety-nine, and] two and one-
53 half percent on and after January first, two thousand of its gross
54 income is hereby imposed upon every provider of telecommunication
55 services doing business in this state which is subject to the super-
56 vision of the state department of public service which has a gross
S. 6295 11 A. 9295
1 income for the year ending December thirty-first in excess of five
2 hundred dollars; and (b) a tax equal to [(1)] two and one-half percent
3 [on and after January first, two thousand] of that portion of its gross
4 income derived from the transportation, transmission or distribution of
5 gas or electricity by means of conduits, mains, pipes, wires, lines or
6 the like [and (2) two and one-tenth percent from January first, two
7 thousand through December thirty-first, two thousand, two and one-tenth
8 percent from January first, two thousand one through December thirty-
9 first, two thousand one, one and seven-tenths percent from January
10 first, two thousand two through December thirty-first, two thousand two,
11 eight-tenths of one percent from January first, two thousand three
12 through December thirty-first, two thousand three, four-tenths of one
13 percent from January first, two thousand four through December thirty-
14 first, two thousand four and zero percent commencing January first, two
15 thousand five of all of its other gross income,] is hereby imposed upon
16 every utility not taxed under paragraph (a) of this subdivision doing
17 business in this state which is subject to the supervision of the state
18 department of public service which has a gross income for the year
19 ending December thirty-first in excess of five hundred dollars, except
20 motor carriers or brokers subject to such supervision under the public
21 service law[; and (c) a tax equal to three and one-quarter percent
22 through December thirty-first, nineteen hundred ninety-nine, two and
23 one-tenth percent from January first, two thousand through December
24 thirty-first, two thousand, two and one-tenth percent from January
25 first, two thousand one through December thirty-first, two thousand one,
26 one and seven-tenths percent from January first, two thousand two
27 through December thirty-first, two thousand two, eight-tenths of one
28 percent from January first, two thousand three through December thirty-
29 first, two thousand three, four-tenths of one percent from January
30 first, two thousand four through December thirty-first, two thousand
31 four and zero percent commencing January first, two thousand five of its
32 gross operating income is hereby imposed upon every other utility doing
33 business in this state which has a gross operating income for the year
34 ending December thirty-first in excess of five hundred dollars], which
35 taxes shall be in addition to any and all other taxes and fees imposed
36 by any other provision of law for the same period.
37 2. As used in this section, (a) the word "utility" includes every
38 person (including every provider of telecommunication services) subject
39 to the supervision of the state department of public service, except
40 persons engaged in the business of operating on the public highways of
41 this state one or more omnibuses, having a seating capacity of more than
42 seven persons, and persons engaged in the business of operating or leas-
43 ing sleeping and parlor railroad cars or of operating railroads other
44 than street surface, rapid transit, subway and elevated railroads[, and
45 also includes every person (whether or not such person is subject to
46 such supervision) who sells gas, electricity, steam, water or refriger-
47 ation, delivered through mains, pipes or wires, or furnishes gas, elec-
48 tric, steam, water or refrigerator service, by means of mains, pipes, or
49 wires; regardless of whether such activities are the main business of
50 such person or are only incidental thereto, or of whether use is made of
51 the public streets]; (b) the word "person" means persons, corporations,
52 companies, associations, joint-stock companies or associations, partner-
53 ships and limited liability companies, estates, assignee of rents, any
54 person acting in a fiduciary capacity, or any other entity, and persons,
55 their assignees, lessees, trustees or receivers, appointed by any court
56 whatsoever, or by any other means, except the state; municipalities,
S. 6295 12 A. 9295
1 political and civil subdivisions of the state or municipality and public
2 districts (provided, however, that with respect to gas, electricity and
3 gas or electric service, including the sale of the transportation, tran-
4 smission or distribution of gas or electricity, such municipalities,
5 political and civil subdivisions and public districts shall be excluded
6 from the definition of "person" if they own and operate facilities which
7 are used to generate or distribute electricity or distribute gas and
8 they distribute and sell such gas or electricity solely at retail, sole-
9 ly within their respective jurisdiction; or provided, further, with
10 respect to the sale of electricity or the transportation, transmission
11 or distribution of electricity, a municipality shall be excluded from
12 the definition of "person" if it sells electricity at retail where all
13 such electricity (excluding temporary substitution power during outages
14 or periods of reduced output) has been generated solely by and purchased
15 solely from the state or a public authority of the state); corporations
16 and associations which are organized and operated exclusively for reli-
17 gious, charitable or educational purposes, no part of the net earnings
18 of which inures to the benefit of any private shareholder or individual,
19 and which are described in paragraph four of subdivision (a) of section
20 eleven hundred sixteen of this chapter where such organization resells
21 such gas or electricity or gas or electric service as landlord to its
22 tenants in buildings owned by such organization[; and excepting a corpo-
23 ration organized and operated exclusively for the purpose of leasing
24 from a city in this state a water-works system designed to supply water
25 at cost to users thereof for discharge, either before or after indus-
26 trial use, into a river within such city in order to improve the flow
27 and condition of such river and thereby to provide a means to relieve
28 such river from pollution]; (c) the words "gross income":
29 (1) When used in reference to persons described in paragraph (a) of
30 subdivision one of this section, mean and include receipts received in
31 or by reason of any sale, conditional or otherwise, (except sales here-
32 inafter referred to with respect to which it is provided that profits
33 from the sale shall be included in gross income) made or service
34 rendered for ultimate consumption or use by the purchaser in this state,
35 including cash, credits and property of any kind or nature (whether or
36 not such sale is made or such service is rendered for profit), without
37 any deduction therefrom on account of the cost of the property sold, the
38 cost of materials used, labor or services or other costs, interest or
39 discount paid, or any other expense whatsoever.
40 [(1)] (2) Provided, however, [that all receipts from sales of the
41 transportation, transmission or distribution of gas or electricity by
42 means of conduits, mains, pipes, wires, lines or the like, rendered or
43 performed in this state, shall be included in gross income except
44 receipts from (i) sales of the transportation, transmission or distrib-
45 ution of gas or electricity to (A) a utility (excluding a public author-
46 ity) which is supervised by this state or another jurisdiction (where an
47 element of such supervision includes rate regulation and, for a utility
48 supervised by another jurisdiction, such supervision includes rate regu-
49 lation and such gas or electricity is delivered for ultimate consumption
50 or use outside this state), (B) a municipality which owns and operates
51 facilities which are used to generate or distribute electricity or
52 distribute gas and which distributes and sells such electricity or gas
53 solely at retail, solely within its respective jurisdiction, or (C) a
54 public authority of this state where such public authority is primarily
55 engaged in the generation and transmission or distribution of electric-
56 ity or the distribution of electricity or gas and at least ninety-five
S. 6295 13 A. 9295
1 percent of the assets of which are so devoted, provided, that, if the
2 service area or district of the authority is less than the entire state,
3 the excluded receipt shall be limited to receipts derived from the sale
4 of transportation, transmission or distribution of gas or electricity,
5 which electricity or gas will be sold by such authority at retail within
6 its service area or district; where, as the case may be, such utility or
7 authority purchasing such transportation, transmission or distribution
8 sells the gas or electricity being so transported, transmitted or
9 distributed, (ii) sales of the transportation, transmission or distrib-
10 ution of electricity to a municipality where the electricity being
11 transported has been purchased by such municipality and has been gener-
12 ated solely by and purchased solely from the state or a public authority
13 of the state (except where the electricity being transported constitutes
14 temporary substitution power being supplied during outages or periods of
15 reduced output) and where such municipality purchasing such transporta-
16 tion, transmission or distribution, sells solely at retail, solely with-
17 in its respective jurisdiction, the electricity being so transported,
18 transmitted or distributed, or (iii) sales of the transportation, trans-
19 mission or distribution of gas or electricity to corporations and asso-
20 ciations which are organized and operated exclusively for religious,
21 charitable or educational purposes, no part of the net earnings of which
22 inures to the benefit of any private shareholder or individual, and
23 which are described in paragraph four of subdivision (a) of section
24 eleven hundred sixteen of this chapter where such organization resells
25 such transportation, transmission or distribution as part of a bundled
26 gas or electric service as landlord to its tenants in buildings owned by
27 such organization.
28 (2) Provided, further, receipts received from the sale of the trans-
29 portation, transmission or distribution of gas or electricity shall mean
30 the receipts received from customers representing the noncommodity
31 charges for gas or electric service.
32 (3) Provided, further,] gross income with respect to a provider of
33 telecommunication services shall not include receipts from the sale of
34 telecommunication services as such services are defined in section one
35 hundred eighty-six-e of this article.
36 [(4) Provided, further, sales of gas, electricity, steam, water or
37 refrigeration or gas, electric, steam, water or refrigerator service to
38 a landlord that is a person as defined in this subdivision for resale by
39 such landlord to a tenant, for consumption by such tenant as an incident
40 to such landlord's activity of renting premises to such tenant, shall be
41 subject to the tax imposed under this section even though such sales are
42 not for ultimate consumption by such landlord. Provided, further,
43 receipts derived by a landlord from the resale for such gas, electric-
44 ity, steam, water or refrigeration or furnishing gas, electric, steam,
45 water or refrigerator service to such tenant shall be conclusively
46 presumed to be equal to such landlord's cost of the same, and, if the
47 tax under this section was imposed on the sale to such landlord, no
48 additional tax under this section shall be owing on the sale by such
49 landlord to such tenant. If, however, the tax under this section was not
50 imposed on such sale to the landlord, then such landlord on the sale to
51 its tenant shall file a return hereunder based on such landlord's cost
52 (including any associated transportation cost) of such gas, electricity,
53 steam, water or refrigeration or gas, electric, steam, water or refri-
54 gerator service.
55 (5) "Gross income"] Provided further, "gross income" with respect to
56 such persons described in paragraph (a) of this subdivision also
S. 6295 14 A. 9295
1 includes profits from the sale of securities; also profits from the sale
2 of real property growing out of the ownership or use of or interest in
3 such property; also profit from the sale of personal property (other
4 than property of a kind which would properly be included in the invento-
5 ry of the taxpayer if on hand at the close of the period for which a
6 return is made); also receipts from interest, dividends, and royalties,
7 derived from sources within this state other than such as are received
8 from a corporation a majority of whose voting stock is owned by the
9 taxpaying utility, without any deduction therefrom for any expenses
10 whatsoever incurred in connection with the receipt thereof, also profits
11 from any transaction (except sales for resale and rentals) within this
12 state whatsoever;
13 (3) When used in reference to persons described in paragraph (b) of
14 subdivision one of this section, the words "gross income" mean and
15 include all receipts received in or by reason of any sale, conditional
16 or otherwise, made or services rendered, in this state of the transpor-
17 tation, transmission or distribution of gas or electricity by means of
18 conduits, mains, pipes, wires, lines or the like, including cash, cred-
19 its and property of any kind or nature (whether or not such sale is made
20 or such service is rendered for profit), without any deduction therefrom
21 on account of property sold, the cost of materials used, labor or
22 services or other costs, interest or discount paid, or any other expense
23 whatsoever. Provided, however, receipts from the following sales shall
24 be excluded:
25 (i) sales of the transportation, transmission or distribution of gas
26 or electricity to (A) a utility (excluding a public authority) which is
27 supervised by this state or another jurisdiction (where an element of
28 such supervision includes rate regulation and, for a utility supervised
29 by another jurisdiction, such supervision includes rate regulation and
30 such gas or electricity is delivered for ultimate consumption or use
31 outside this state), (B) a municipality which owns and operates facili-
32 ties which are used to generate or distribute electricity or distribute
33 gas and which distributes and sells such electricity or gas solely at
34 retail, solely within its respective jurisdiction, or (C) a public
35 authority of this state where such public authority is primarily engaged
36 in the generation and transmission or distribution of electricity or the
37 distribution of electricity or gas and at least ninety-five percent of
38 the assets of which are so devoted, provided, that, if the service area
39 or district of the authority is less than the entire state, the excluded
40 receipt shall be limited to receipts derived from the sale of transpor-
41 tation, transmission or distribution of gas or electricity, which gas or
42 electricity will be sold by such authority at retail within its service
43 area or district; where, as the case may be, such utility or authority
44 purchasing such transportation, transmission or distribution sells the
45 gas or electricity being so transported, transmitted or distributed;
46 (ii) sales of the transportation, transmission or distribution of
47 electricity to a municipality where the electricity being transported
48 has been purchased by such municipality and has been generated solely by
49 and purchased solely from the state or a public authority of the state
50 (except where the electricity being transported constitutes temporary
51 substitution power being supplied during outages or periods of reduced
52 output) and where such municipality purchasing such transportation,
53 transmission or distribution sells solely at retail, solely within its
54 respective jurisdiction, the electricity being so transported, transmit-
55 ted or distributed; or
S. 6295 15 A. 9295
1 (iii) sales of the transportation, transmission or distribution of gas
2 or electricity to corporations and associations which are organized and
3 operated exclusively for religious, charitable or educational purposes,
4 no part of the net earnings of which inures to the benefit of any
5 private shareholder or individual, and which are described in paragraph
6 four of subdivision (a) of section eleven hundred sixteen of this chap-
7 ter where such organization resells such transportation, transmission or
8 distribution as part of a bundled gas or electric service as landlord to
9 its tenants in buildings owned by such organization;
10 (4) Provided, further, receipts received from the sale of the trans-
11 portation, transmission or distribution of gas or electricity shall mean
12 the receipts received from customers representing the noncommodity
13 charges for gas or electric service; and
14 (d) [the words "gross operating income" mean and include receipts
15 received in or by reason of any sale, conditional or otherwise, made for
16 ultimate consumption or use by the purchaser of gas, electricity, steam,
17 water or refrigeration, or in or by reason of the furnishing for such
18 consumption or use of gas, electric, steam, water or refrigerator
19 service in this state, including cash, credits and property of any kind
20 or nature, without any deduction therefrom on account of the cost of the
21 property sold, the cost of materials used, labor or services or other
22 costs, interest or discount paid, or any other expenses whatsoever.
23 Provided, however, there shall be excluded from gross operating income
24 receipts representing the amount received from the resale of the trans-
25 portation, transmission or distribution of gas or electricity in this
26 state where such transportation, transmission or distribution being
27 resold is provided by a utility subject to tax under paragraph (b) of
28 subdivision one of this section; the receipts representing the amount
29 received from resale of such transportation, transmission or distrib-
30 ution shall be the amount received for such transportation, transmission
31 or distribution by such utility which initially provided such transpor-
32 tation, transmission or distribution. Provided, further, sales of gas,
33 electricity, steam, water or refrigeration or gas, electric, steam,
34 water or refrigerator service to a landlord that is a person as defined
35 in this subdivision for resale by such landlord to a tenant, for
36 consumption by such tenant as an incident to such landlord's activity of
37 renting premises to such tenant, shall be subject to the tax imposed
38 under this section even though such sales are not for ultimate consump-
39 tion by such landlord. Provided, further, receipts derived by a landlord
40 from the resale of such gas, electricity, steam, water or refrigeration
41 or furnishing gas, electric, steam, water or refrigerator service to
42 such tenant shall be conclusively presumed to be equal to such land-
43 lord's cost of the same, and, if the tax under this section was imposed
44 on the sale to such landlord, no additional tax under this section shall
45 be owing on the sale by such landlord to such tenant. If the tax under
46 this section was not imposed on such sale to the landlord, then such
47 landlord on the sale to its tenant shall file a return hereunder based
48 on such landlord's cost (including any associated transportation cost)
49 of such gas, electricity, steam, water or refrigeration or gas, elec-
50 tric, steam, water or refrigerator service; (e)] the term "telecommuni-
51 cation services" shall have the same meaning as such term is defined in
52 section one hundred eighty-six-e of this article[; (f) The word "prem-
53 ises" means and includes any real property or part thereof, and any
54 structure thereon or space therein; and (g) the word "tenant" means and
55 includes a person paying, or required to pay, rent for premises as a
56 lessee, sublessee, licensee or concessionaire].
S. 6295 16 A. 9295
1 4. Every utility subject to tax hereunder shall file, on or before
2 March fifteenth of each year, a return for the year ended on the preced-
3 ing December thirty-first, [except that the year ended on December thir-
4 ty-first, nineteen hundred seventy-six shall be deemed, for the purposes
5 of this subdivision, to have commenced on June first, nineteen hundred
6 seventy-six, including any period for which the tax imposed hereby or by
7 any amendment hereof is effective,] each of which returns shall state,
8 as the case may be, the gross income or that part of gross [operating]
9 income derived from the transportation, transmission or distribution of
10 gas or electricity for the period covered by each such return. Returns
11 shall be filed with the commissioner [of taxation and finance] on a form
12 to be furnished by the commissioner for such purpose and shall contain
13 such other data, information or matter as the commissioner may require
14 to be included therein. Notwithstanding the foregoing provisions of this
15 subdivision, the commissioner may require any utility to file an annual
16 return, which shall contain any data specified by the commissioner,
17 regardless of whether the utility is subject to tax under this section[;
18 and the commissioner may require a landlord selling to a tenant gas,
19 electric, steam, water or refrigeration or furnishing gas, electric,
20 steam, water or refrigerator service, where the same has been subjected
21 to tax under this section on the sale to such landlord, to file, on or
22 before the fifteenth day of March of each year, an information return
23 for the year ended on the preceding December thirty-first, covering such
24 year in such form and containing such data as the commissioner may spec-
25 ify]. Every return shall have annexed thereto a certification by the
26 head of the utility making the same, or of the owner or of a co-partner
27 thereof, or of a principal officer of the corporation, if such business
28 be conducted by a corporation, to the effect that the statements
29 contained therein are true.
30 10. Notwithstanding any other provision contained in this chapter or
31 any other law, any surcharge collected or any administrative fee
32 retained by any telephone corporation acting as collection agent for a
33 municipality pursuant to the provisions of article six of the county law
34 shall not be considered as nor included in the determination of gross
35 income [or gross operating income] of or by such corporation.
36 § 6. Paragraph (a) of subdivision 1 of section 186-c of the tax law,
37 as amended by section 123 of part A of chapter 389 of the laws of 1997,
38 is amended to read as follows:
39 (a) (1) Every utility doing business in the metropolitan commuter
40 transportation district shall pay a tax surcharge, in addition to the
41 tax imposed by section one hundred eighty-six-a of this article, for all
42 or any parts of its taxable years commencing on or after January first,
43 nineteen hundred eighty-two but ending before December thirty-first, two
44 thousand one, to be computed at the rate of eighteen per centum of the
45 tax imposed under section one hundred eighty-six-a of this article for
46 such taxable years or any part of such taxable years ending before
47 December thirty-first, nineteen hundred eighty-three after the deduction
48 of any credits otherwise allowable under this article, and at the rate
49 of seventeen per centum of the tax imposed under such section for such
50 taxable years or any part of such taxable years ending on or after
51 December thirty-first, nineteen hundred eighty-three after the deduction
52 of credits otherwise allowable under this article except any utility
53 credit provided for by article thirteen-A of this chapter; provided,
54 however, that such rates of tax surcharge shall be applied only to that
55 portion of the tax imposed under section one hundred eighty-six-a of
56 this article after the deduction of credits otherwise allowable under
S. 6295 17 A. 9295
1 this article, except any utility credit provided for by article thir-
2 teen-A of this chapter, which is attributable to the taxpayer's gross
3 income or gross operating income from business activity carried on with-
4 in the metropolitan commuter transportation district; and provided,
5 further, that the tax surcharge imposed by this section shall not be
6 imposed upon any taxpayer for more than two hundred twenty-eight months.
7 (2) Provided however, that (A) commencing October first, nineteen
8 hundred ninety-eight such tax surcharge shall be calculated as if the
9 tax imposed under section one hundred eighty-six-a of this article were
10 imposed at a rate of three and one-half percent, and (B) commencing
11 January first, two thousand, in the case of (i) the tax imposed under
12 paragraph (a) of subdivision one of section one hundred eighty-six-a of
13 this article (relating to providers of telecommunications services) and
14 (ii) the tax imposed under paragraph (b) of subdivision one of section
15 one hundred eighty-six-a of this article on gross income derived from
16 the transportation, transmission or distribution of gas or electricity,
17 such tax surcharge shall be calculated as if the tax imposed under
18 section one hundred eighty-six-a of this article were imposed at a rate
19 of three and one-half percent.
20 § 7. Paragraph (b) of subdivision 2 of section 189 of the tax law, as
21 amended by chapter 410 of the laws of 1991, is amended to read as
22 follows:
23 (b) [The] Through the taxable month of December, nineteen hundred
24 ninety-nine, the tax shall be equal to four and one-quarter percent; for
25 each of the taxable months during the calendar years two thousand and
26 two thousand one, the tax shall be equal to two and one-tenth percent;
27 for each of the taxable months during the calendar year two thousand
28 two, the tax shall be equal to one and seven-tenths percent; for each of
29 the taxable months during the calendar year two thousand three, the tax
30 shall be equal to eight-tenths of one percent; for each the taxable
31 months during the calendar year two thousand four, the tax shall be
32 equal to four-tenths of one percent; and for each of the taxable months
33 during the calendar year two thousand five and thereafter, the tax shall
34 be equal to zero percent of the consideration given or contracted to be
35 given by the gas importer for the gas services imported or caused to be
36 imported into this state by such gas importer for its own use or
37 consumption in this state.
38 § 7-a. Sections 189 and 189-a of the tax law are REPEALED.
39 § 8. Subdivision 3 of section 192 of the tax law is REPEALED.
40 § 9. Subdivision 1 of section 197-a of the tax law, as amended by
41 chapter 2 of the laws of 1995, is amended to read as follows:
42 1. Every taxpayer subject to the taxes imposed under sections one
43 hundred eighty-two, one hundred eighty-two-a, former section one hundred
44 eighty-two-b, one hundred eighty-four, [one hundred eighty-six,] one
45 hundred eighty-six-a or one hundred eighty-six-e of this chapter shall
46 make a declaration of its estimated tax for the current taxable year,
47 containing such information as the commissioner may prescribe by regu-
48 lations or instructions, if such estimated tax can reasonably be
49 expected to exceed one thousand dollars. If a taxpayer is subject to the
50 tax surcharge imposed under section one hundred eighty-four-a[, one
51 hundred eighty-six-b] or one hundred eighty-six-c of this chapter and
52 such taxpayer's estimated tax under section one hundred eighty-four[,
53 one hundred eighty-six] or one hundred eighty-six-a of this chapter,
54 respectively, can reasonably be expected to exceed one thousand dollars,
55 such taxpayer shall also make a declaration of its estimated tax
56 surcharge for the current taxable year.
S. 6295 18 A. 9295
1 § 10. Paragraph (a) of subdivision 1 and subdivision 6 of section
2 197-b of the tax law, as amended by chapter 2 of the laws of 1995, are
3 amended to read as follows:
4 (a) For taxable years beginning on or after January first, nineteen
5 hundred seventy-seven, every taxpayer subject to tax under section one
6 hundred eighty-two, one hundred eighty-two-a, former section one hundred
7 eighty-two-b, one hundred eighty-four, [one hundred eighty-six,] one
8 hundred eighty-six-a or one hundred eighty-six-e, shall pay in each such
9 year an amount equal to twenty-five percent of the tax imposed under
10 each of such sections for the preceding taxable year, if such preceding
11 year's tax exceeded one thousand dollars. If such preceding year's tax
12 under section one hundred eighty-four, [one hundred eighty-six,] one
13 hundred eighty-six-a or one hundred eighty-six-e exceeded one thousand
14 dollars and such taxpayer is subject to the tax surcharge imposed by
15 section one hundred eighty-four-a[, one hundred eighty-six-b] or one
16 hundred eighty-six-c, respectively, such taxpayer shall also pay in each
17 such year an amount equal to twenty-five percent of the tax surcharge
18 imposed under such section for the preceding taxable year. Such amount
19 or amounts shall be paid with the return or report required to be filed
20 with respect to such tax or tax surcharge for such preceding taxable
21 year or with an application for extension of the time for filing such
22 return or report.
23 6. As used in this section, "the preceding year's tax" means the tax
24 imposed upon the taxpayer by section one hundred eighty-two, former
25 section one hundred eighty-two-b, one hundred eighty-four, [one hundred
26 eighty-six,] one hundred eighty-six-a or one hundred eighty-six-e for
27 the preceding taxable year.
28 § 11. Subdivision 9 of section 208 of the tax law is amended by adding
29 two new paragraphs (c-2) and (c-3) to read as follows:
30 (c-2) Adjustments by qualified public utilities. (1) In the case of a
31 taxpayer which is a qualified public utility, entire net income shall be
32 computed with the adjustments set forth in this paragraph.
33 (2) Definitions. (A) Qualified public utility. The term "qualified
34 public utility" means a taxpayer which:
35 (i) on December thirty-first, nineteen hundred ninety-nine, was
36 subject to the ratemaking supervision of the state department of public
37 service, and
38 (ii) for the year ending on December thirty-first, nineteen hundred
39 ninety-nine, was subject to tax under former section one hundred eight-
40 y-six of this chapter.
41 (B) Transition property. The term "transition property" means property
42 placed in service by the taxpayer before January first, two thousand,
43 for which a depreciation deduction is allowed under section one hundred
44 sixty-seven of the internal revenue code.
45 (3) Federal depreciation disallowed. With respect to transition prop-
46 erty, the deduction for federal income tax purposes for depreciation
47 shall not be allowed.
48 (4) New York depreciation. With respect to transition property, a
49 deduction shall be allowed for the depreciation expense shown on the
50 books and records of the taxpayer for the taxable year and determined in
51 accordance with generally accepted accounting principles.
52 (5) Regulatory assets. A deduction shall be allowed for amounts recog-
53 nized as expense on the books and records of the taxpayer for the taxa-
54 ble year, which amounts were recognized as expense for federal income
55 tax purposes in a taxable year ending on or before December thirty-
56 first, nineteen hundred ninety-nine, where:
S. 6295 19 A. 9295
1 (A) such amounts represent expenditures which, when made, were charged
2 to a deferred debit account or similar asset account on the books and
3 records of the taxpayer, and where
4 (B) the recognition of expense on the books and records of the taxpay-
5 er is matched by revenue stemming from a procedure or adjustment allow-
6 ing the recovery of such expenditures, and where
7 (C) such revenue is recognized for federal income tax purposes in the
8 taxable year.
9 (6) Basis for gain or loss. (A) Recognition transactions. (i) General
10 rule - book basis. Except as provided in subclause (ii) of this clause,
11 where transition property is sold or otherwise disposed of in the taxa-
12 ble year in a transaction of the type requiring recognition of gain or
13 loss for federal income tax purposes, the basis for determining the
14 amount of such gain or loss under this article shall be the cost of the
15 property less the accumulated depreciation on the property determined on
16 the books and records of the taxpayer in accordance with generally
17 accepted accounting principles.
18 (ii) Qualified gain - New York basis. Where a sale or disposition
19 described in subclause (i) of this clause results in recognition of gain
20 for federal income tax purposes, and where either (I) such recognition
21 occurs in a taxable year ending after nineteen hundred ninety-nine and
22 before two thousand ten, or (II) such recognition is with respect to a
23 nuclear electric generating facility, the basis for determining the
24 amount of such gain under this article shall be the cost of the property
25 less the aggregate of the New York depreciation deductions on the prop-
26 erty determined under subparagraph four of this paragraph.
27 (iii) No conversion of gain to loss. In the event that the basis
28 determined under subclause (ii) of this clause results in determination
29 of a loss on the sale or disposition of the property, no gain or loss
30 shall be recognized under this article with respect to such sale or
31 disposition.
32 (B) Nonrecognition transactions. (i) Carryover basis. (I) where tran-
33 sition property is disposed of ("original disposition") in a transaction
34 of a type requiring deferral of recognition of gain or loss for federal
35 income tax purposes, and where
36 (II) there is a subsequent recognition of gain or loss for federal
37 income tax purposes ("clause B gain or loss"), the amount of which is
38 determined by reference, in whole or in part, to the basis of such tran-
39 sition property ("underlying transition property"), then
40 (III) the amount of such clause B gain or loss under this article
41 shall be adjusted as provided in subclause (ii) or (iii) of this clause.
42 (ii) General rule - book basis adjustment. Except as provided in
43 subclause (iii) of this clause, the amount of clause B gain shall be
44 reduced, or the amount of clause B loss increased, by the amount by
45 which the book basis of the underlying transition property on the date
46 of original disposition (determined using the provisions of subclause
47 (i) of clause (A) of this subparagraph) exceeds the federal income tax
48 basis of such property on such date.
49 (iii) Qualified gain - New York basis adjustment. Where clause B gain
50 either (I) occurs in a taxable year ending after nineteen hundred nine-
51 ty-nine and before two thousand ten, or (II) is with respect to a nucle-
52 ar electric generating facility, the amount of such gain under this
53 article shall be reduced, but not below zero, by the amount by which the
54 New York basis of the underlying transition property on the date of
55 original disposition (determined using the provisions of subclause (ii)
S. 6295 20 A. 9295
1 of clause (A) of this subparagraph) exceeds the federal income tax basis
2 of such property on such date.
3 (iv) Application to replacement property and transferee taxpayers.
4 This clause shall apply whether the clause B gain or loss:
5 (I) is with respect to either transition property or depreciable prop-
6 erty the basis of which is determined by reference to transition proper-
7 ty, or
8 (II) is recognized by either a qualified public utility or by a
9 taxpayer which is a transferee of transition property (whether or not
10 such transferee is a qualified public utility, notwithstanding subpara-
11 graph one of this paragraph).
12 (c-3) Depreciation adjustments by qualified power producers and pipe-
13 line companies. (1) In the case of a qualified taxpayer, entire net
14 income shall be computed with the depreciation adjustments set forth in
15 this paragraph.
16 (2) Definitions. (A) Qualified taxpayer. The term "qualified taxpayer"
17 means a qualified power producer or a qualified interstate pipeline.
18 (B) Qualified power producer. The term "qualified power producer"
19 means a taxpayer which:
20 (i) on December thirty-first, nineteen hundred ninety-nine, was not
21 subject to the ratemaking supervision of the state department of public
22 service, and
23 (ii) for the year ending on December thirty-first, nineteen hundred
24 ninety-nine, was subject to tax under former section one hundred eight-
25 y-six of this chapter on account of its being principally engaged in the
26 business of supplying electricity.
27 (C) Qualified interstate pipeline. The term "qualified interstate
28 pipeline" means a taxpayer which:
29 (i) on December thirty-first, nineteen hundred ninety-nine, was
30 subject to the ratemaking supervision of the federal energy regulatory
31 commission, and
32 (ii) for the year ending on December thirty-first, nineteen hundred
33 ninety-nine, was subject to tax under sections one hundred eighty-three
34 and one hundred eighty-four of this chapter on account of its being
35 principally engaged in the business of interstate pipeline transmission.
36 (D) Transition property. The term "transition property" means property
37 placed in service by a qualified taxpayer before January first, two
38 thousand, for which a depreciation deduction is allowed under section
39 one hundred sixty-seven of the internal revenue code.
40 (3) Federal depreciation disallowed. With respect to transition prop-
41 erty, the deduction for federal income tax purposes for depreciation
42 shall not be allowed.
43 (4) New York depreciation. With respect to transition property, a
44 deduction shall be allowed for the depreciation expense computed as
45 provided in this subparagraph.
46 (A) All transition property shown on the books and records of the
47 taxpayer on January first, two thousand shall be treated as a single
48 asset placed in service on such date. The New York basis for purposes of
49 computing the depreciation deduction on such single asset shall be the
50 net book value of such transition property determined on the first day
51 of the federal taxable year ending in two thousand (or on the date any
52 such property is placed in service, if later) adjusted as provided in
53 clause (B) of this subparagraph.
54 (B) If transition property is sold or otherwise disposed of, the New
55 York basis of the single asset shall be reduced on the date of such sale
S. 6295 21 A. 9295
1 or disposition by the amount of the adjusted federal tax basis of such
2 property on such date.
3 (C) The New York depreciation deduction allowed for any taxable year
4 with respect to such single asset shall be computed using the straight-
5 line method, a twenty-year life, and a salvage value of zero.
6 (D) For purposes of this subparagraph, the term "net book value" means
7 cost reduced by accumulated depreciation shown on the books and records
8 of the taxpayer and determined, in the case of a qualified power produc-
9 er, in accordance with generally accepted accounting principles; and in
10 the case of a qualified interstate pipeline, in accordance with the
11 taxpayer's regulatory reports filed with the federal energy regulatory
12 commission.
13 § 12. Subdivision 4 of section 209 of the tax law, as amended by chap-
14 ter 659 of the laws of 1993, is amended to read as follows:
15 4. Corporations liable to tax under sections one hundred eighty-three
16 to one hundred [eighty-six] eighty-five, inclusive, corporations taxable
17 under articles thirty-two and thirty-three of this chapter, any trust
18 company organized under a law of this state all of the stock of which is
19 owned by not less than twenty savings banks organized under a law of
20 this state, bank holding companies filing a combined return in accord-
21 ance with subdivision (f) of section fourteen hundred sixty-two of this
22 chapter and housing companies organized and operating pursuant to the
23 provisions of article two or article five of the private housing finance
24 law and housing development fund companies organized pursuant to the
25 provisions of article eleven of the private housing finance law shall
26 not be subject to tax under this article.
27 § 13. Paragraph (b) of subdivision 1-c of section 210 of the tax law,
28 as amended by chapter 760 of the laws of 1992, is amended to read as
29 follows:
30 (b) is not a corporation over fifty percent of the number of shares of
31 stock of which entitling the holders thereof to vote for the election of
32 directors or trustees is owned by a taxpayer which (1) is subject to tax
33 under this article; section one hundred eighty-three, one hundred eight-
34 y-four[,] or one hundred eighty-five [or one hundred eighty-six] of
35 article nine; article thirty-two or thirty-three of this chapter, and
36 (2) does not qualify as a small business corporation as defined in para-
37 graph three of subsection (c) of section twelve hundred forty-four of
38 the internal revenue code (without regard to the second sentence of
39 subparagraph (A) thereof) as of the last day of its taxable year ending
40 within or with the taxable year of the taxpayer,
41 § 14. Clause (B) of subparagraph 2 of paragraph (a) of subdivision 3
42 of section 210 of the tax law, as amended by chapter 760 of the laws of
43 1992, is amended to read as follows:
44 (B) services performed within the state, provided, however, that (i)
45 in the case of a taxpayer engaged in the business of publishing newspa-
46 pers or periodicals, receipts arising from sales of advertising
47 contained in such newspapers and periodicals shall be deemed to arise
48 from services performed within the state to the extent that such newspa-
49 pers and periodicals are delivered to points within the state, (ii)
50 receipts from an investment company arising from the sale of management,
51 administration or distribution services to such investment company shall
52 be deemed to arise from services performed within the state to the
53 extent set forth in subparagraph six of this paragraph [and], (iii) in
54 the case of taxpayers principally engaged in the activity of air freight
55 forwarding acting as principal and like indirect air carriage receipts
56 arising from such activity shall arise from services performed within
S. 6295 22 A. 9295
1 the state as follows: one hundred percent of such receipts if both the
2 pickup and delivery associated with such receipts are made in this state
3 and fifty percent of such receipts if either the pickup or delivery
4 associated with such receipts is made in this state, and (iv) in the
5 case of receipts arising from the transportation or transmission of gas
6 through pipes, the portion of such receipts which constitute receipts
7 from services performed within the state shall be the product of (I) the
8 total of such receipts and (II) a fraction, the numerator of which is
9 the taxpayer's transportation units within the state and the denominator
10 of which is the taxpayer's transportation units within and without the
11 state. A transportation unit is the transportation of one cubic foot of
12 gas over a distance of one mile,
13 § 15. Subparagraph 1 of paragraph (j) of subdivision 12 of section 210
14 of the tax law, as amended by chapter 61 of the laws of 1989, is amended
15 to read as follows:
16 (1) over fifty percent of the number of shares of stock entitling the
17 holders thereof to vote for the election of directors or trustees is
18 owned or controlled, either directly or indirectly, by a taxpayer
19 subject to tax under this article; section one hundred eighty-three, one
20 hundred eighty-four[,] or one hundred eighty-five [or one hundred eight-
21 y-six] of article nine; article thirty-two or thirty-three of this chap-
22 ter; or
23 § 16. Paragraph 3 of subsection (c) of section 1085 of the tax law, as
24 added by chapter 166 of the laws of 1991, is amended to read as follows:
25 (3) The provisions of this subsection and subsections (d) and (e) of
26 this section shall apply to the failure of a taxpayer to file a declara-
27 tion of estimated tax surcharge or the failure to pay all or any part of
28 an amount which is applied as an installment against such estimated tax
29 surcharge pursuant to sections one hundred ninety-seven-a, one hundred
30 ninety-seven-b, two hundred thirteen-a, two hundred thirteen-b, fourteen
31 hundred sixty, fourteen hundred sixty-one, fifteen hundred thirteen and
32 fifteen hundred fourteen of this chapter. For purposes of applying this
33 section and subsections (d) and (e) of this section to the estimated tax
34 surcharge, where appropriate the term "tax" shall be read to mean "tax
35 surcharge," and the terms "amount required to be paid," "amount which
36 would be required to be paid," and "amount which would have been
37 required to be paid" shall be computed as the product of (1) such amount
38 computed without regard to the tax surcharges imposed under sections one
39 hundred eighty-four-a, [one hundred eighty-six-b,] one hundred eighty-
40 six-c, one hundred eighty-eight, two hundred nine-A, two hundred nine-B,
41 fourteen hundred fifty-five-A, fourteen hundred fifty-five-B, fifteen
42 hundred five-a, and fifteen hundred twenty, and (2) the MTA percentage.
43 The term "MTA percentage" shall mean the product of (A) the tax rate
44 applicable under such sections imposing such surcharges and (B) the
45 percentage utilized in determining the portion of the taxpayer's busi-
46 ness activity carried on within the metropolitan commuter transportation
47 district under such sections.
48 § 17. Paragraph 9 of subsection (a) of section 1452 of the tax law, as
49 amended by chapter 298 of the laws of 1985, is amended to read as
50 follows:
51 (9) any corporation sixty-five percent or more of whose voting stock
52 is owned or controlled, directly or indirectly, by a corporation or
53 corporations subject to article three-a of the banking law, or regis-
54 tered under the federal bank holding company act of nineteen hundred
55 fifty-six, as amended, or registered as a savings and loan holding
56 company (but excluding a diversified savings and loan holding company)
S. 6295 23 A. 9295
1 under the federal national housing act, as amended, or by a corporation
2 or corporations described in any of the foregoing paragraphs of this
3 subsection, provided the corporation whose voting stock is so owned or
4 controlled is principally engaged in a business, regardless of where
5 conducted, which (i) might be lawfully conducted by a corporation
6 subject to article three of the banking law or by a national banking
7 association or (ii) is so closely related to banking or managing or
8 controlling banks as to be a proper incident thereto, as set forth in
9 paragraph eight of subsection (c) of section four of the federal bank
10 holding company act of nineteen hundred fifty-six, as amended; and
11 provided, further, that in no event shall a corporation principally
12 engaged in a business described in section one hundred eighty-three[,]
13 or one hundred eighty-four, or section one hundred eighty-six as it was
14 in effect on December thirty-first, nineteen hundred ninety-nine, of
15 this chapter be subject to the tax imposed under this article if any of
16 its business receipts from such principally engaged in business are from
17 other than a corporation (A) which owns or controls, directly or indi-
18 rectly, sixty-five percent or more of its voting stock, or (B) sixty-
19 five percent or more of whose voting stock is owned or controlled,
20 directly or indirectly, by the corporation engaged in such business, or
21 (C) sixty-five percent or more of whose voting stock is owned or
22 controlled, directly or indirectly, by the same interest.
23 § 18. Section 25-u of the general city law, as added by chapter 551 of
24 the laws of 1985, is amended to read as follows:
25 § 25-u. Construction. Nothing contained in this article shall be
26 construed as reducing the amount of a receipt for sales tax purposes
27 under any of the sales taxes imposed or authorized by article twenty-
28 eight or twenty-nine of the tax law; or as reducing the gross receipts,
29 the gross income or the gross operating income subject to tax pursuant
30 to section [one hundred eighty-six or] one hundred eighty-six-a of the
31 tax law or authorized to be subjected to tax by section twelve hundred
32 one of the tax law. The burden of establishing eligibility to claim the
33 benefits of this article shall rest with the party claiming such bene-
34 fits.
35 § 19. Section 25-x of the general city law, as added by chapter 331 of
36 the laws of 1987, is amended to read as follows:
37 § 25-x. Construction. Nothing contained in this article shall be
38 construed as reducing the amount of a receipt for sales tax purposes
39 under any of the sales taxes imposed or authorized by article twenty-
40 eight or twenty-nine of the tax law; or as reducing the gross receipts,
41 the gross income or the gross operating income subject to tax pursuant
42 to section [one hundred eighty-six or] one hundred eighty-six-a of the
43 tax law or authorized to be subjected to tax by section twelve hundred
44 one of the tax law. The burden of establishing eligibility to claim the
45 benefits of this article shall rest with party claiming such benefits.
46 § 20. Subdivision 2 of section 1020-q of the public authorities law,
47 as added by chapter 517 of the laws of 1986, is amended to read as
48 follows:
49 2. The authority shall also make payments in lieu of taxes for those
50 taxes which would otherwise be imposed upon LILCO, if LILCO were to
51 continue in operation, pursuant to sections [one hundred eighty-six,]
52 one hundred eighty-six-a[,] and one hundred eighty-six-c of the tax law,
53 and to former sections one hundred eighty-six and one hundred eighty-
54 six-b [and one hundred eighty-six-c of the tax law] of the tax law as
55 such sections one hundred eighty-six and one hundred eighty-six-b were
56 in effect on December thirty-first, nineteen hundred ninety-nine, para-
S. 6295 24 A. 9295
1 graph (b) of subdivision four of section one hundred seventy-four of the
2 navigation law, and any taxes imposed by a city pursuant to the authori-
3 zation granted by section twenty-b of the general city law.
4 § 21. Transition provisions for former section 186 taxpayers. (a)
5 Previous year's tax. In the case of a taxpayer subject to section 186 of
6 the tax law, for a taxable year ending on December 31, 1999, which is
7 subject to tax under article 9-A or 32 of the tax law for a taxable year
8 beginning on January 1, 2000, by reason of this act, with respect to
9 such taxable year under such article 9-A or 32 the term "tax" in the
10 phrase "tax shown on the return of the taxpayer for the preceding taxa-
11 ble year" in paragraph 1 of subsection (d) of section 1085 of the tax
12 law, and in the phrase "tax shown on the taxpayer's report for the
13 preceding taxable year" in paragraph a of subdivision 2 of section 213
14 of the tax law, and in the phrase "tax shown on the taxpayer's return
15 for the preceding taxable year" in paragraph 1 of subsection (b) of
16 section 1463 of the tax law, shall be read to refer to the tax shown on
17 such taxpayer's return under such former section 186 of the tax law for
18 such taxable year ending on December 31, 1999.
19 (b) Overpayments. In the case of a taxpayer subject to the former
20 section 186 of the tax law for a taxable year ending on December 31,
21 1999, which is subject to tax under article 9-A or 32 of the tax law for
22 a taxable year beginning on January 1, 2000, by reason of this act, any
23 amount of overpayment of tax claimed on such taxpayer's report under
24 such section 186 for such taxable year ending on December 31, 1999,
25 shall be subject to the provisions of section 1086 of the tax law,
26 except that the references to credits of such overpayment against tax
27 liability or estimated tax shall be deemed to be references to tax
28 liability and estimated tax under such article 9-A or 32 of the tax law,
29 as applicable.
30 (c) Mandatory first installments. Every taxpayer which (1) was subject
31 to tax under former section 186 of the tax law for a taxable year ending
32 on December 31, 1999,
33 (2) which had a tax liability under such section for such year in
34 excess of one thousand dollars, and
35 (3) which is subject to tax under article 9-A or 32 of the tax law for
36 a taxable year beginning on January 1, 2000, by reason of this act,
37 shall make a payment to the commissioner of taxation and finance on or
38 before March 15, 2000. Such payment shall be made in an amount equal to
39 25 percent of the taxpayer's liability for tax under former section 186
40 of the tax law for such taxable year ending on December 31, 1999, plus,
41 if the taxpayer is subject to the tax surcharge imposed under section
42 209-b of the tax law for the taxable year beginning on January 1, 2000,
43 25 percent of the taxpayer's liability for tax surcharge under section
44 186-b of the tax law for the taxable year ending on December 31, 1999.
45 Such payment shall be made pursuant to a procedure established by such
46 commissioner. Such commissioner may treat a payment made pursuant to
47 subdivision 1 of section 197-b of the tax law computed based on tax due
48 under former section 186 of the tax law for the taxable year ending on
49 December 31, 1999, as the payment required to be made pursuant to the
50 first sentence of this subdivision. Such payment shall constitute a
51 payment of estimated tax with respect to such taxpayer's liability under
52 such article 9-A or 32 of the tax law for such taxable year, and shall
53 be deemed to constitute a payment made pursuant to subdivision (a) of
54 section 213-b or subsection (a) of section 1461, respectively, of the
55 tax law. In addition, other payments of estimated tax made pursuant to
56 subdivision 2 of section 197-b of the tax law in respect of the tax
S. 6295 25 A. 9295
1 imposed under former section 186 of the tax law or the surcharge imposed
2 under former section 186-b of the tax law, for the taxable year ending
3 December 31, 2000, shall be deemed to constitute payments of estimated
4 tax pursuant to subdivision (b) of section 213-b or subsection (b) of
5 section 1461 of the tax law.
6 (d) Credits. In the case of a taxpayer subject to tax under former
7 section 186 of the tax law, for the taxable year ending on December 31,
8 1999, which by reason of sections one through forty-seven of this act is
9 subject to article 9-A or 32 of the tax law for a taxable year beginning
10 on January 1, 2000, any portion of credit allowed under section 187,
11 187-a or 187-b of the tax law for a taxable year under such former
12 section 186 of the tax law ending before January 1, 2000, which may not
13 be deducted from tax due under such former section 186 for any taxable
14 year under such article ending before January 1, 2000, shall be treated,
15 for purposes of article 9-A or 32 of the tax law, respectively, as an
16 amount of credit allowed under subdivision 17, 23 or 24 of section 210
17 of the tax law or subsection (c) or (f) of section 1456 of the tax law,
18 as applicable, with respect to a taxable year under such article 9-A or
19 32 of the tax law ending before January 1, 2000, but not deductible from
20 tax due under such article 9-A or 32 of the tax law for any such year
21 ending before January 1, 2000.
22 (e) EIC and Economic Development Zone EIC. In the case of a taxpayer
23 subject to tax under former section 186 of the tax law for the taxable
24 year ending December 31, 1999, which by reason of sections one through
25 forty-seven of this act is subject to article 9-A of the tax law for a
26 taxable year beginning on January 1, 2000, and which claims a credit
27 under subdivision 12-C or 12-D of section 210 of the tax law with
28 respect to its taxable year under such article 9-A of the tax law imme-
29 diately succeeding such taxable year under article 9-A of the tax law
30 beginning on January 1, 2000, the phrases "the taxable year immediately
31 preceding the taxable year for which the credit under such subdivision
32 twelve-B is allowed" and "the taxable year immediately preceding the
33 taxable year for which the credit under such subdivision twelve is
34 allowed" shall be deemed to refer to the taxpayer's taxable year under
35 such former section 186 of the tax law which ends on December 31, 1999.
36 (f) General savings provision. Notwithstanding the repeal of sections
37 186 and 186-b of the tax law made by section three of this act, the
38 repeal of sections 189 and 189-a of the tax law made by section seven-a
39 of this act, and the repeal of subdivision 3 of section 192 of the tax
40 law made by section eight of this act, all provisions of the tax law and
41 of any regulations adopted thereunder, with respect to the assessment,
42 payment or payment over, determination, collection and refund of taxes
43 or surcharges, imposed by such sections, and related interest and penal-
44 ties, the filing of forms and reports and the preservation of records
45 for the purpose of the taxes or surcharges imposed by such sections, the
46 civil and criminal penalties applicable to the violation of the
47 provisions of such sections, the secrecy of reports, and the disposition
48 of revenues, shall continue in effect with regard to all liabilities for
49 such taxes or surcharges (including any penalty and interest related
50 thereto) incurred prior to such repeal or prior to the effective date of
51 such amendment, as applicable.
52 § 22. Subdivision (b) of section 1101 of the tax law is amended by
53 adding a new paragraph 22 to read as follows:
54 (22) Gas and electric services. Gas service means "gas and gas
55 service," and electric service means "electricity and electric service,"
56 as such terms have customarily been used, and such gas and electricity
S. 6295 26 A. 9295
1 and such services have customarily been subject to tax, under subdivi-
2 sion (b) of section eleven hundred five of this article, and such terms
3 shall also include, respectively, gas or electricity, itself, as a
4 commodity, or as part of an integrated (bundled) service including
5 delivery to the purchaser and other components of such service, the
6 service of transporting, transmitting, or distributing such gas or elec-
7 tricity by means of conduits, mains, pipes, wires, lines or the like
8 (whether or not such service is provided by the seller of the gas or
9 electricity being transported, transmitted or distributed and whether or
10 not such service is provided by one or more persons), itself, or as part
11 of an integrated (bundled) service including the commodity and other
12 components of such service, and also including any other components of
13 gas or gas service, or of electricity or electric service, which are
14 currently provided or furnished with such service and included in the
15 rates or charges authorized by the New York state public service commis-
16 sion or comparable federal agency, but which may become unbundled and
17 furnished separately (whether or not by the same seller of other compo-
18 nents of such gas, electricity or service), such as metering services or
19 billing or collection services or the services represented by capacity,
20 demand or the like charges. In addition, gas and electric services shall
21 include any ancillary services furnished in conjunction with gas or gas
22 service or electricity or electric service, which ancillary services are
23 currently included in rates or charges or the like authorized by the New
24 York state public service commission or comparable federal agency but
25 which may be separately charged for in the future.
26 § 23. Paragraph 7 of subdivision (b) of section 1101 of the tax law,
27 as amended by chapter 61 of the laws of 1989, is amended to read as
28 follows:
29 (7) Use. The exercise of any right or power over tangible personal
30 property or services, including gas or electric service, by the purchas-
31 er thereof and includes, but is not limited to, the receiving, storage
32 or any keeping or retention for any length of time, withdrawal from
33 storage, any installation, any affixation to real or personal property,
34 or any consumption of such property. Without limiting the foregoing,
35 use also shall include the distribution of only tangible personal prop-
36 erty, such as promotional materials.
37 § 24. Subdivision (b) of section 1105 of the tax law, as amended by
38 chapter 166 of the laws of 1991, is amended to read as follows:
39 (b) The receipts from every sale, other than sales for resale, of
40 [gas, electricity,] refrigeration and steam, and gas, electric, refrig-
41 eration and steam service of whatever nature, and from every sale, other
42 than sales for resale, of telephony and telegraphy and telephone and
43 telegraph service of whatever nature except interstate and international
44 telephony and telegraphy and telephone and telegraph service and from
45 every sale, other than sales for resale, of a telephone answering
46 service.
47 § 25. Subdivisions (b) and (d) of section 1105-A of the tax law,
48 subdivision (b) as amended by chapter 747 of the laws of 1979 and subdi-
49 vision (d) as added by chapter 70 of the laws of 1978, are amended to
50 read as follows:
51 (b) Notwithstanding any other provision of this article, but not for
52 purposes of the taxes imposed by section eleven hundred seven or eleven
53 hundred eight or pursuant to the authority of article twenty-nine of
54 this chapter, for purposes of [clause] clauses (A) and (G) of subdivi-
55 sion (a) of section eleven hundred ten, the compensating use tax imposed
56 by such section on the use of the property and services described in
S. 6295 27 A. 9295
1 [subsection] subdivision (a) of this section shall be at the rate of
2 [three percent for the period commencing January first, nineteen hundred
3 seventy-nine and ending December thirty-first, nineteen hundred seven-
4 ty-nine; at the rate of two and one-half percent for the period commenc-
5 ing January first, nineteen hundred eighty and ending September thirti-
6 eth, nineteen hundred eighty and at the rate of] zero percent [on and
7 after October first, nineteen hundred eighty of the consideration given
8 or contracted to be given for the property or services described in
9 subsection (a) of this section or for use of such property or services,
10 plus the cost of transportation except where such cost is separately
11 stated in the written contract, if any, and on the bill rendered to the
12 purchaser].
13 (d) Where a residence is a part of a multiple dwelling or other prem-
14 ises consisting of residential and non-residential units, or where a
15 portion of a residence is used for non-dwelling purposes including the
16 conduct of a trade or business, the [tax commission] commissioner may
17 establish such rules and regulations as may be necessary in order to
18 allocate to such residence the portion of the sale or use of energy
19 sources or services attributable to the residential portion.
20 § 26. Clause 3 of subdivision (b) of section 1107 of the tax law, as
21 amended by chapter 376 of the laws of 1989, is amended to read as
22 follows:
23 (3) Where a sale of tangible personal property or services, including
24 gas or electric service, including an agreement therefor, is made in a
25 city in which the taxes imposed by subdivision (a) of this section
26 apply, but the property sold [or], the property upon which the services
27 were performed or such service, including gas or electric service is or
28 will be delivered to the purchaser elsewhere, such sale will not be
29 subject to taxes imposed by such subdivision (a). However, if delivery
30 occurs or will occur in any city where the tax imposed by such subdivi-
31 sion (a) applies, a vendor will be required to collect from the purchas-
32 er the sales or compensating use taxes imposed by this section. For the
33 purposes of this section delivery shall be deemed to include transfer of
34 possession to the purchaser and the receiving of the property or of the
35 service, including gas or electric service by the purchaser.
36 § 27. Paragraph 3 of subdivision (b) of section 1108 of the tax law,
37 as added by chapter 168 of the laws of 1975, is amended to read as
38 follows:
39 (3) Where a sale of tangible personal property or services, including
40 gas or electric service, including an agreement therefor, is made in a
41 city in which the taxes imposed by subdivision (a) of this section
42 apply, but the property sold [or], the property upon which the services
43 were performed or such service, including gas or electric service is or
44 will be delivered to the purchaser elsewhere, such sale will not be
45 subject to taxes imposed by such subdivision (a). However, if delivery
46 occurs or will occur in any city where the tax imposed by such subdivi-
47 sion (a) applies, a vendor will be required to collect from the purchas-
48 er[,] the sales or compensating use taxes imposed by this section. For
49 the purposes of this section delivery shall be deemed to include trans-
50 fer of possession to the purchaser and the receiving of the property or
51 of the service, including gas or electric service by the purchaser.
52 § 28. Subdivision (c) of section 1109 of the tax law, as added by
53 chapter 485 of the laws of 1981, is amended to read as follows:
54 (c) Deliveries outside the district; deliveries within the district of
55 property sold or serviced elsewhere. Where a sale of tangible personal
56 property or services, including gas or electric service, including an
S. 6295 28 A. 9295
1 agreement therefor, is made in the district in which the taxes imposed
2 by this section apply, but the property sold [or], the property upon
3 which the services were performed or such service, including gas or
4 electric service is or will be delivered to the purchaser elsewhere,
5 such sale will not be subject to taxes imposed by this section. However,
6 if delivery occurs or will occur in the district where the tax imposed
7 by this section applies, a vendor will be required to collect from the
8 purchaser the sales or compensating use taxes imposed by this section.
9 For the purposes of this section, delivery shall be deemed to include
10 transfer of possession to the purchaser and the receiving of the proper-
11 ty or of the service, including gas or electric service by the purchas-
12 er. The provisions of section twelve hundred fourteen of this chapter
13 shall be applicable to this section, but any reference in that section
14 to a local sales or use tax imposed by a city, county or school district
15 shall mean the additional taxes imposed by this section.
16 § 29. Subdivision (a) of section 1110 of the tax law, as separately
17 amended by sections 19, 158 and 161 of chapter 166 of the laws of 1991,
18 is amended to read as follows:
19 (a) Except to the extent that property or services have already been
20 or will be subject to the sales tax under this article, there is hereby
21 imposed on every person a use tax for the use within this state on and
22 after June first, nineteen hundred seventy-one except as otherwise
23 exempted under this article, (A) of any tangible personal property
24 purchased at retail, (B) of any tangible personal property (other than
25 computer software used by the author or other creator) manufactured,
26 processed or assembled by the user, (i) if items of the same kind of
27 tangible personal property are offered for sale by him in the regular
28 course of business or (ii) if items are used as such or incorporated
29 into a structure, building or real property by a contractor, subcontrac-
30 tor or repairman in erecting structures or buildings, or building on, or
31 otherwise adding to, altering, improving, maintaining, servicing or
32 repairing real property, property or land, as the terms real property,
33 property or land are defined in the real property tax law, if items of
34 the same kind are not offered for sale as such by such contractor,
35 subcontractor or repairman or other user in the regular course of busi-
36 ness, (C) of any of the services described in paragraphs (1), (7) and
37 (8) of subdivision (c) of section eleven hundred five, (D) of any tangi-
38 ble personal property, however acquired, where not acquired for purposes
39 of resale, upon which any of the services described in paragraphs (2),
40 (3) and (7) of subdivision (c) of section eleven hundred five have been
41 performed [and], (E) of any telephone answering service described in
42 subdivision (b) of section eleven hundred five [and], (F) of any comput-
43 er software written or otherwise created by the user if the user offers
44 software of a similar kind for sale as such or as a component part of
45 other property in the regular course of business and (G) of any gas or
46 electric service described in subdivision (b) of section eleven hundred
47 five of this article.
48 § 30. Section 1110 of the tax law is amended by adding a new subdivi-
49 sion (h) to read as follows:
50 (h) For purposes of clause (G) of subdivision (a) of this section, the
51 tax shall be at the rate of four percent of the consideration given or
52 contracted to be given for the gas or electric service, or for the use
53 of such service, including the consideration for any tangible personal
54 property transferred in conjunction with the performance of the service
55 and also including any charges for shipping and delivery of the property
56 so transferred, and also including any charge, whether or not separately
S. 6295 29 A. 9295
1 stated and whether or not made by the vendor or other seller of the gas
2 or electric service, for shipping, delivery, transportation, trans-
3 mission, distribution or the like, and for any unbundled component of
4 such service, as described in paragraph nineteen of subdivision (b) of
5 section eleven hundred one of this article.
6 § 31. Paragraph (ii) of subdivision (b) of section 1115 of the tax
7 law, as added by chapter 575 of the laws of 1965, is amended to read as
8 follows:
9 (ii) [Gas, electricity, refrigeration] Refrigeration and steam, and
10 gas, electric, refrigeration and steam service of whatever nature for
11 use or consumption directly and exclusively in research and development
12 in the experimental or laboratory sense shall be exempt from the tax
13 imposed under subdivision (b) of section eleven hundred five and the
14 compensating use tax imposed under section eleven hundred ten of this
15 article. Such research and development shall not be deemed to include
16 the ordinary testing or inspection of materials or products for quality
17 control, efficiency surveys, management studies, consumer surveys,
18 advertising, promotions or research in connection with literary, histor-
19 ical or similar projects.
20 § 32. Subdivision (c) of section 1115 of the tax law, as added by
21 chapter 93 of the laws of 1965, is amended to read as follows:
22 (c) Fuel, [gas, electricity,] refrigeration and steam, and gas, elec-
23 tric, refrigeration and steam service of whatever nature for use or
24 consumption directly and exclusively in the production of tangible
25 personal property, gas, electricity, refrigeration or steam, for sale,
26 by manufacturing, processing, assembling, generating, refining, mining,
27 extracting, farming, agriculture, horticulture or floriculture, shall be
28 exempt from the taxes imposed under subdivisions (a) and (b) of section
29 eleven hundred five and the compensating use tax imposed under section
30 eleven hundred ten.
31 § 33. Section 1115 of the tax law is amended by adding a new subdivi-
32 sion (w) to read as follows:
33 (w) Receipts from the sale of gas or electric service and consider-
34 ation given or contracted to be given for, or for the use of, gas or
35 electric service purchased for use or consumption directly and exclu-
36 sively to operate a gas pipeline or gas distribution line or an electric
37 transmission or distribution line and to ensure necessary working pres-
38 sure in an underground gas storage facility shall be exempt from sales
39 and compensating use taxes imposed by this article. Such exempt gas or
40 electric service shall include, but shall not be limited to, such
41 service used or consumed directly and exclusively to (1) ensure neces-
42 sary working pressure in a gas pipeline used to transport, transmit or
43 distribute gas service, (2) operate compressors used to transport, tran-
44 smit or distribute gas through such a gas pipeline or distribution line
45 or used to ensure necessary working pressure in such a storage facility,
46 (3) operate heaters to prevent gas in such a pipeline or distribution
47 line from freezing, (4) operate equipment which removes impurities and
48 moisture from gas in such a pipeline or distribution line, (5) operate
49 substations and equipment related to electric transmission and distrib-
50 ution lines such as transformers, capacitors, meters, switches, communi-
51 cation devices and heating and cooling equipment, and (6) ensure the
52 reliability of electric service transmitted or distributed through such
53 lines, for example, by operating reserve capacity machinery and equip-
54 ment.
55 § 34. The opening paragraph, subdivision 2 and paragraph (a) of subdi-
56 vision 7 of section 1118 of the tax law, the opening paragraph and
S. 6295 30 A. 9295
1 subdivision 2 as added by chapter 93 of the laws of 1965 and paragraph
2 (a) of subdivision 7 as amended by chapter 300 of the laws of 1967, are
3 amended to read as follows:
4 The following uses of property and services shall not be subject to
5 the compensating use tax imposed under this article:
6 (2) In respect to the use of property or services, including gas or
7 electric service, purchased by the user while a nonresident of this
8 state, except in the case of tangible personal property or services
9 which the user, in the performance of a contract, incorporates into real
10 property located in the state. A person while engaged in any manner in
11 carrying on in this state any employment, trade, business or profession,
12 shall not be deemed a nonresident with respect to the use in this state
13 of property or services, including gas or electric service, in such
14 employment, trade, business or profession.
15 (a) In respect to the use of property or services, including gas or
16 electric service, to the extent that a retail sales or use tax was
17 legally due and paid thereon, without any right to a refund or credit
18 thereof, to any other state or jurisdiction within any other state but
19 only when it is shown that such other state or jurisdiction allows a
20 corresponding exemption with respect to the sale or use of tangible
21 personal property or services, including gas or electric service, upon
22 which such a sales tax or compensating use tax was paid to this state.
23 To the extent that the tax imposed by this article is at a higher rate
24 than the rate of tax in the first taxing jurisdiction, this exemption
25 shall be inapplicable and the tax imposed by section eleven hundred ten
26 of this chapter shall apply to the extent of the difference in such
27 rates, except as provided in paragraph (b) of this subdivision.
28 § 35. Subdivision 4 of section 1131 of the tax law, as amended by
29 chapter 166 of the laws of 1991, is amended to read as follows:
30 (4) "Property and services the use of which is subject to tax" shall
31 include: (a) all property sold to a person within the state, whether or
32 not the sale is made within the state, the use of which property is
33 subject to tax under section eleven hundred ten or will become subject
34 to tax when such property is received by or comes into the possession or
35 control of such person within the state; (b) all information services,
36 protective and detective services and interior decorating and design
37 services as such services are described in subdivision (c) of section
38 eleven hundred five, rendered to a person within the state, whether or
39 not such services are rendered from or at a location within the state;
40 (c) all services rendered to a person within the state, whether or not
41 such services are performed within the state, upon tangible personal
42 property the use of which is subject to tax under section eleven hundred
43 ten or will become subject to tax when such property is received by or
44 comes into possession or control of such person within the state; (d)
45 all property sold by a person making sales described in clause (F) of
46 subparagraph (i) of paragraph eight of subdivision (b) of section eleven
47 hundred one of this article to a person described in such clause (F) who
48 purchases such property at retail, whether or not the sale is made with-
49 in the state; [and] (e) all telephone answering service rendered to a
50 person within the state, whether or not such services are performed
51 within the state, the use of which is subject to tax under section elev-
52 en hundred ten or will become subject to tax when such service is
53 received by or comes into possession or control of such person within
54 the state; and (f) all gas and electric services sold to a person within
55 the state, whether or not the sale is made within the state, the use of
56 which services are subject to tax under section eleven hundred ten of
S. 6295 31 A. 9295
1 this article or will become subject to tax when such services are
2 received by or come into the possession or control of such person within
3 the state, and whether or not such services are rendered from or at a
4 location within the state.
5 § 36. Subparagraph (i) of paragraph 3 of subdivision (a) of section
6 1210 of the tax law, as amended by chapter 261 of the laws of 1988, is
7 amended to read as follows:
8 (i) Notwithstanding any other provision of law to the contrary but not
9 with respect to cities subject to the provisions of section eleven
10 hundred seven or section eleven hundred eight, any city or county,
11 except a county wholly contained within a city, may provide that the
12 taxes imposed, pursuant to this subdivision, by such city or county on
13 the retail sale or use of fuel oil and coal used for residential
14 purposes, the retail sale or use of wood used for residential heating
15 purposes [and], the sale, other than for resale, of propane (except when
16 sold in containers of less than one hundred pounds), natural gas, elec-
17 tricity, steam and gas, electric and steam services used for residential
18 purposes and the use of gas or electric service used for residential
19 purposes may be imposed at a lower rate than the uniform local rate
20 imposed pursuant to the opening paragraph of this section, as long as
21 such rate is one of the rates authorized by such paragraph or such sale
22 or use may be exempted from such taxes. Provided, however, such lower
23 rate must apply to all such energy sources and services and at the same
24 rate and no such exemption may be enacted unless such exemption applies
25 to all such energy sources and services. The provisions of this subpar-
26 agraph shall not apply to a sale or use of (i) diesel motor fuel which
27 involves a delivery at a filling station or into a repository which is
28 equipped with a hose or other apparatus by which such fuel can be
29 dispensed into the fuel tank of a motor vehicle and (ii) enhanced diesel
30 motor fuel except in the case of a sale or use of such enhanced diesel
31 motor fuel used exclusively for residential purposes which is delivered
32 into a storage tank which is not equipped with a hose or other apparatus
33 by which such fuel can be dispensed into the fuel tank of a motor vehi-
34 cle and such storage tank is attached to the heating unit burning such
35 fuel, provided that each delivery of such fuel of over four thousand
36 five hundred gallons shall be evidenced by a certificate signed by the
37 purchaser stating that the product will be used exclusively for residen-
38 tial purposes.
39 § 37. Paragraphs 1 and 2 and subparagraph (i) of paragraph 3 of subdi-
40 vision (b) and subdivision (c) of section 1210 of the tax law, paragraph
41 1 of subdivision (b) as amended by chapter 166 of the laws of 1991,
42 paragraph 2 and subparagraph (i) of paragraph 3 of subdivision (b) as
43 amended by chapter 746 of the laws of 1979 and subdivision (c) as added
44 by chapter 93 of the laws of 1965, are amended to read as follows:
45 (1) Or, one or more of the taxes described in subdivisions (b), (d),
46 (e) and (f) of section eleven hundred five, at the same uniform rate,
47 including the transitional provisions in section eleven hundred six
48 covering such taxes, but not the taxes described in subdivisions (a) and
49 (c) of section eleven hundred five. Provided, further, that where the
50 tax [on telephone answering service] described in subdivision (b) of
51 section eleven hundred five is imposed, the compensating use [tax] taxes
52 described in [clause] clauses (E) and (G) of subdivision (a) of section
53 eleven hundred ten shall also be imposed.
54 (2) In respect to the taxes described in such subdivisions (b), (d),
55 (e) and (f) of section eleven hundred five and in such clauses (E) and
56 (G) of subdivision (a) of section eleven hundred ten and the transi-
S. 6295 32 A. 9295
1 tional provisions in such section eleven hundred six covering those
2 taxes, all provisions of a local law imposing any such tax, except as to
3 rate and except as otherwise provided herein, shall be identical with
4 the corresponding provisions in such article twenty-eight, including the
5 definition and exemption provisions of such article, so far as the
6 provisions of such article twenty-eight can be made applicable to the
7 taxes imposed by such city or county and with such limitations and
8 special provisions as are set forth in this article; provided, however,
9 that any local law enacted by any city of one million or more, imposing
10 the taxes authorized by this subdivision, shall omit the exemption
11 provided in subdivision (c) of section eleven hundred fifteen and may
12 omit the exception provided in paragraph (1) of subdivision (f) of
13 section eleven hundred five for charges to a patron for admission to, or
14 use of, facilities for sporting activities in which such patron is to be
15 a participant, such as bowling alleys and swimming pools. The transi-
16 tional provisions contained in subdivision (d) of section eleven hundred
17 six shall apply in the same manner and to the same extent to a tax
18 imposed by omitting the exception in paragraph (1) of subdivision (f) of
19 section eleven hundred five, as described in the preceding sentence,
20 except that an equivalent date shall be substituted to accord with the
21 date when the tax so imposed becomes effective. The tax described in any
22 one of such subdivisions (b), (d), (e) and (f) of section eleven hundred
23 five, including the related transitional provisions in such section
24 eleven hundred six, and the taxes described in clauses (E) and (G) of
25 subdivision (a) of section eleven hundred ten where the tax described in
26 such subdivision (b) of section eleven hundred five is imposed, may not
27 be imposed by a city or county unless the local law, ordinance or resol-
28 ution imposes such tax so as to include all portions and all types of
29 receipts, charges or rents, as the case may be, subject to state tax
30 under the applicable subdivision of section eleven hundred five and uses
31 subject to tax under the applicable provisions of section eleven hundred
32 ten where the tax described in subdivision (b) of section eleven hundred
33 five is imposed.
34 (i) Notwithstanding any other provision of law to the contrary but not
35 with respect to cities subject to the provisions of section eleven
36 hundred seven or section eleven hundred eight, any city or county,
37 except a county wholly contained within a city, may provide that the tax
38 imposed, pursuant to this subdivision, by such city or county on the
39 sale, other than for resale, of propane (except when sold in containers
40 of less than one hundred pounds), natural gas, electricity, steam and
41 gas, electric and steam services used for residential purposes and on
42 the use of gas and electric services used for residential purposes may
43 be imposed at a lower rate than the uniform local rate imposed pursuant
44 to the opening paragraph of this section, as long as such rate is one of
45 the rates authorized by such paragraph or such sale or use may be
46 exempted from such taxes. Provided, however, such lower rate must apply
47 to all such energy sources and services and at the same rate and no such
48 exemption may be enacted unless such exemption applies to all such ener-
49 gy sources and services.
50 (c) Notwithstanding the prior provisions of this section, where a city
51 has, pursuant to section twelve hundred twenty-four, pre-empted the
52 right to impose any of the taxes described in subdivisions (b), (d), (e)
53 and (f) of section eleven hundred five by imposing one or more of such
54 taxes, and, if the taxes described in such subdivision (b) of section
55 eleven hundred five are imposed, the compensating use taxes described in
56 clauses (E) and (G) of subdivision (a) of section eleven hundred ten, as
S. 6295 33 A. 9295
1 provided for in subdivision (b) of this section, the county in which
2 such city is located may still impose those taxes authorized under
3 subdivision (a) or (b) of this section not pre-empted by such city.
4 Within areas in such county but outside of such city, the county shall
5 continue to be authorized and empowered to impose the taxes as author-
6 ized in subdivisions (a) and (b) of this section, without any diminution
7 in the county's right to impose such taxes in areas outside such city.
8 § 38. Subdivision (a) of section 1212 of the tax law, as amended by
9 chapter 300 of the laws of 1968, is amended to read as follows:
10 (a) Any school district which is coterminous with, partly within or
11 wholly within a city having a population of less than one hundred twen-
12 ty-five thousand, is hereby authorized and empowered, by majority vote
13 of the whole number of its school authorities, to impose for school
14 district purposes, within the territorial limits of such school district
15 and without discrimination between residents and nonresidents thereof,
16 the tax described in subdivision (b) of section eleven hundred five and
17 the taxes described in clauses (E) and (G) of subdivision (a) of section
18 eleven hundred ten, including the transitional provisions in subdivision
19 (b) of section eleven hundred six, so far as such provisions can be made
20 applicable to the [tax] taxes imposed by such school district and with
21 such limitations and special provisions as are set forth in this arti-
22 cle, such [tax] taxes to be imposed at the rate of one-half, one, one
23 and one-half, two, two and one-half or three percent which rate shall be
24 uniform for all portions and all types of receipts and uses subject to
25 such [tax] taxes. In respect to such [tax] taxes, all provisions of the
26 resolution imposing [it] them, except as to rate and except as otherwise
27 provided herein, shall be identical with the corresponding provisions in
28 such article twenty-eight, including the applicable definition and
29 exemption provisions of such article, so far as the provisions of such
30 article twenty-eight can be made applicable to the [tax] taxes imposed
31 by such school district and with such limitations and special provisions
32 as are set forth in this article. The [tax] taxes described in [such]
33 subdivision (b) of section eleven hundred five and clauses (E) and (G)
34 of subdivision (a) of section eleven hundred ten, including the transi-
35 tional provision in subdivision (b) of such section eleven hundred six,
36 may not be imposed by such school district unless the resolution imposes
37 [the tax described in such subdivision] such taxes so as to include all
38 portions and all types of receipts and uses subject to tax under such
39 subdivision and clauses.
40 § 39. Section 1213 of the tax law, as amended by chapter 575 of the
41 laws of 1965, is amended to read as follows:
42 § 1213. Deliveries outside the jurisdiction where sale is made. Where
43 a sale of tangible personal property or services, including gas, elec-
44 tric and telephone answering services, but not including other [than
45 those] services described in subdivision (b) of section eleven hundred
46 five, including an agreement therefor, is made in any city, county or
47 school district, but the property sold [or], the property upon which the
48 services were performed or the gas, electric, telephone answering or
49 other service is or will be delivered to the purchaser elsewhere, such
50 sale shall not be subject to tax by such city, county or school
51 district. However, if delivery occurs or will occur in a city, county or
52 school district imposing a tax on the sale or use of such property or
53 such gas, electric, telephone answering or other services, the vendor
54 shall be required to collect from the purchaser, as provided in section
55 twelve hundred fifty-four, the aggregate sales or compensating use taxes
56 imposed by the city, if any, county and school district in which deliv-
S. 6295 34 A. 9295
1 ery occurs or will occur, for distribution by the [state tax commission]
2 commissioner to such taxing jurisdiction or jurisdictions. For the
3 purposes of this section delivery shall be deemed to include transfer of
4 possession to the purchaser and the receiving of the property or of the
5 service, including gas, electric or telephone answering service, by the
6 purchaser.
7 § 40. Section 1220 of the tax law, as added by chapter 93 of the laws
8 of 1965, is amended to read as follows:
9 § 1220. Territorial limitations. Any tax imposed under the authority
10 of this article shall apply only within the territorial limits of the
11 city, county or school district imposing the tax, except that where [a
12 tax] the taxes described in subdivision (b) [or (e)] of section eleven
13 hundred five, and clauses (E) and (G) of subdivision (a) of section
14 eleven hundred ten or the tax described in subdivision (e) of section
15 eleven hundred five is imposed by a city, as provided in [sections]
16 section twelve hundred ten or twelve hundred eleven, any establishment
17 located partially within such city and partially within a town or towns
18 and receiving or using any services or utilities provided by the city
19 shall be deemed to be wholly within such city for the purposes of such
20 taxes.
21 § 41. Paragraph 1 of subdivision (b) of section 1224 of the tax law,
22 as amended by chapter 426 of the laws of 1968, is amended to read as
23 follows:
24 (1) any or all of the taxes described in subdivisions (b), (d), (e)
25 and (f) of section eleven hundred five, and, where the tax described in
26 subdivision (b) of section eleven hundred five is imposed, all of the
27 taxes described in clauses (E) and (G) of subdivision (a) of section
28 eleven hundred ten, as authorized by subdivision (b) of section twelve
29 hundred ten.
30 § 42. Paragraph 2 of subdivision (s) of section 1224 of the tax law,
31 as added by chapter 718 of the laws of 1996, is amended to read as
32 follows:
33 (2) any or all of the taxes described in subdivisions (b), (d), (e)
34 and (f) of section eleven hundred five of this chapter, and, where the
35 tax described in such subdivision (b) of section eleven hundred five is
36 imposed, all of the taxes described in clauses (E) and (G) of subdivi-
37 sion (a) of section eleven hundred ten, as authorized by subdivision (b)
38 of section twelve hundred ten of this article.
39 § 43. Movable machinery and equipment other than boilers, ventilating
40 apparatus, elevators, plumbing, heating, lighting and power generating
41 apparatus, shafting other than counter-shafting and equipment for the
42 distribution of heat, light, power, gases and liquids, which was subject
43 to taxation on a final assessment roll completed in 2000, and which
44 would otherwise become wholly exempt from taxation by virtue of para-
45 graph (f) of subdivision 12 of section 102 of the real property tax law
46 due to either a change in ownership or the amendment to article 9 of the
47 tax law effectuated by section four of this act, shall be taxable to the
48 extent provided herein for purposes of the final assessment rolls
49 completed in 2001 through 2010, inclusive, notwithstanding any provision
50 in paragraph (f) of subdivision 12 of section 102 of the real property
51 tax law or in any other law to the contrary.
52 (a) On the final assessment roll completed in 2001, such property
53 shall be fully taxable.
54 (b) On the final assessment roll completed in 2002, 10 percent of the
55 total assessed valuation of such property shall be exempt from taxation.
S. 6295 35 A. 9295
1 (c) On the final assessment roll completed in 2003, 20 percent of the
2 total assessed valuation of such property shall be exempt from taxation.
3 (d) On the final assessment roll completed in 2004, 30 percent of the
4 total assessed valuation of such property shall be exempt from taxation.
5 (e) On the final assessment roll completed in 2005, 40 percent of the
6 total assessed valuation of such property shall be exempt from taxation.
7 (f) On the final assessment roll completed in 2006, 50 percent of the
8 total assessed valuation of such property shall be exempt from taxation.
9 (g) On the final assessment roll completed in 2007, 60 percent of the
10 total assessed valuation of such property shall be exempt from taxation.
11 (h) On the final assessment roll completed in 2008, 70 percent of the
12 total assessed valuation of such property shall be exempt from taxation.
13 (i) On the final assessment roll completed in 2009, 80 percent of the
14 total assessed valuation of such property shall be exempt from taxation.
15 (j) On the final assessment roll completed in 2010, 90 percent of the
16 total assessed valuation of such property shall be exempt from taxation.
17 § 44. Tax Reduction credit under tax law, former section 189. There
18 shall be allowed a credit against the taxes imposed under former section
19 189 of the tax law to account for the rate reduction under tax law,
20 section 186-a for the period October 1, 1998 through December 31, 1999.
21 The appropriate credit shall commence for the taxable month which coin-
22 cides with such October 1, 1998, rate reduction. The former section 189
23 of the tax law credit shall apply as if the rate of tax imposed under
24 former section 189 of the tax law had been reduced by one-quarter of one
25 percent on October 1, 1998 through December 31, 1999. The amount of the
26 credit shall first be offset against any liability owing by the taxpayer
27 under former section 189 or 189-a of the tax law. Such offset shall be
28 made by a public utility required to collect the tax imposed by such
29 sections against any tax liability under such sections collected by such
30 utility from its then current customers on and after the date this act
31 shall have become a law. Such utility shall provide information to each
32 such taxpayer regarding the amount offset with respect to such taxpayer
33 and the amount of the excess credit, if any, due such taxpayer so that
34 each such taxpayer can file a claim for refund with the commissioner of
35 taxation and finance for any such excess credit. Any electric corpo-
36 ration which reimbursed a person pursuant to section 149-b of chapter
37 166 of the laws of 1991 shall be considered the taxpayer with respect to
38 the amount so reimbursed for purposes of the credit allowed by this
39 section. Any credit or excess credit allowed under this section shall be
40 treated as an overpayment by a taxpayer for purposes of administering
41 such credit or excess credit in accordance with article 27 of the tax
42 law and other laws applicable to credits or excess credits allowed under
43 article 9 of the tax law.
44 § 45. Continued application of tax law former section 186. (a) Defi-
45 nitions. (i) For purposes of this section, a "continuing section 186
46 taxpayer" is a taxpayer which (A) is primarily engaged in the business
47 of co-generation with respect to a taxable year ending on December 31,
48 1999 (either directly or by reason of membership in a partnership which
49 is so engaged) determined without regard to the megawatt capacity of any
50 of its facilities, (B) was subject to tax under former section 186 of
51 the tax law, but not under section 186-a of the tax law, with respect to
52 a taxable year ending on December 31, 1999, and (C) as of January 1,
53 2000, was a party to a total output contract or contracts with respect
54 to all electricity produced for sale by such taxpayer and all partner-
55 ships of which it is a member. However, a taxpayer which otherwise qual-
56 ifies as a continuing section 186 taxpayer may make an irrevocable
S. 6295 36 A. 9295
1 election not to be treated as a continuing section 186 taxpayer. Such
2 election shall be made at the time and in the form and manner prescribed
3 by the commissioner of taxation and finance.
4 (ii) For purposes of this section, a "total output contract" is a
5 contract, binding on its parties as of January 1, 2000, which provides
6 for the sale of all electricity produced for sale by the taxpayer or by
7 a partnership of which the taxpayer is a member. A taxpayer shall be
8 deemed to be a party to such a contract if a partnership of which it is
9 a member, and which produces electricity for sale, is a party to such a
10 contract.
11 (iii) For purposes of this section, a "contract termination year" is
12 the calendar year containing the termination date of the taxpayer's
13 total output contract as it was in effect on January 1, 2000, without
14 regard to any extensions thereof agreed to or otherwise created after
15 January 1, 2000. If the taxpayer is, on such date, a party to more than
16 one such total output contract, the reference in the previous sentence
17 to its contract shall be deemed to refer to the last of its such exist-
18 ing contracts to terminate.
19 (iv) For purposes of this section, the term "partnership" shall be
20 deemed to include reference to a limited liability company treated as a
21 partnership for federal income tax purposes.
22 (b) Sections three, eight, nine, ten, twelve, thirteen, fifteen,
23 sixteen, eighteen, nineteen and subdivision (a) of section forty-six of
24 this act notwithstanding, a taxpayer which is a continuing section 186
25 taxpayer shall be subject to the provisions of law amended or repealed
26 by such sections of this act as they were in effect on December 31,
27 1999, and shall remain subject thereto through and including December 31
28 of the contract termination year. References in sections eleven and
29 twenty-one of this act to 1999 and 2000 shall be deemed, in the case of
30 a continuing section 186 taxpayer, to refer to the contract termination
31 year, and to the year immediately following, respectively.
32 (c) Any provision of this act to the contrary notwithstanding, in the
33 case of a continuing section 186 taxpayer, in the application of section
34 forty-three and subdivision (f) of section forty-six of this act, refer-
35 ences to 1999 shall be deemed to be references to the contract termi-
36 nation year, and references in such sections to years subsequent to 1999
37 shall be deemed increased by the number of years by which the contract
38 termination year follows 1999.
39 § 46. This act shall take effect immediately; provided that:
40 (a) Sections one, two, three, four, six and eight through twenty of
41 this act shall apply to taxable years ending after January 1, 2000.
42 (b) Section five of this act shall take effect January 1, 2005, and
43 shall apply to taxable years beginning on or after such date, provided,
44 however, that the amendment to subdivision 10 of section 186-a of the
45 tax law made by section five of this act shall not affect the reversion
46 of such subdivision pursuant to section 9 of chapter 316 of the laws of
47 1997.
48 (c) Section seven-a of this act shall take effect January 1, 2005, and
49 shall apply to taxable months beginning on and after such date.
50 (d) Sections twenty-two through twenty-eight and thirty-one through
51 forty-two of this act shall take effect April 1, 2000, and shall apply
52 to property or services sold on or after such date although made under a
53 prior contract. Where property or service is sold on a monthly, quarter-
54 ly or other term basis and the bills for such property or service are
55 based on meter readings, the amount received on each bill for such prop-
56 erty or service for a month or other term shall be a receipt subject to
S. 6295 37 A. 9295
1 the tax, but such sections shall be applicable to all bills based on
2 meters read on or after April 1, 2000, only where more than one-half of
3 the number of days included in the month or other period billed are days
4 subsequent to March 31, 2000, provided, however, any provisions of such
5 sections relating to the compensating use tax imposed by section twen-
6 ty-nine of this act shall take effect at the same time as such section
7 takes effect.
8 (e) Sections twenty-nine and thirty of this act shall take effect
9 April 1, 2000, and shall apply to property or services sold on or after
10 such date although made under a prior contract. Where property or
11 service is sold on a monthly, quarterly or other term basis and the
12 bills for such property or service are based on meter readings, the
13 amount received on each bill for such property or service for a month or
14 other term shall be a receipt or consideration subject to the tax, but
15 such sections shall be applicable to all bills based on meters read on
16 or after April 1, 2000, only where more than one-half of the number of
17 days included in the month or other period billed are days subsequent to
18 March 31, 2000.
19 (f) Section forty-three of this act shall apply and be in full force
20 and effect with respect to final assessment rolls completed between
21 January 1, 2000 and December 31, 2009, inclusive, and shall expire and
22 be deemed repealed December 31, 2009.
23 PART B
24 Section 1. The ninth undesignated paragraph of section 1005 of the
25 public authorities law, as amended by chapter 316 of the laws of 1997,
26 and paragraph b as amended by chapter 386 of the laws of 1998, is
27 amended to read as follows:
28 a. Notwithstanding any inconsistent provision of this title, the
29 authority shall make available all economic development power for allo-
30 cation to or for businesses and whose allocation of such power is recom-
31 mended by the New York state economic development power allocation board
32 pursuant to section one hundred eighty-seven of the economic development
33 law. "Economic development power" shall mean any power from the Fitzpa-
34 trick nuclear project that is voluntarily relinquished by businesses,
35 except that it shall not include any power under the power for jobs
36 program and the upstate economic revitalization power program which may
37 be voluntarily relinquished by businesses, small businesses and not-for-
38 profit corporations.
39 b. Notwithstanding any inconsistent provision of this title, the
40 authority shall make available all power under the power for jobs
41 program for allocation to or for businesses, small businesses and not-
42 for-profit corporations and all power under the upstate economic revi-
43 talization power program to or for businesses and small businesses and
44 whose allocation of such power [is] are recommended by such board pursu-
45 ant to [section] sections one hundred eighty-nine and one hundred eight-
46 y-nine-a of the economic development law. Power under the power for
47 jobs program shall mean four hundred fifty megawatts of power and power
48 under the upstate economic revitalization power program shall mean two
49 hundred megawatts of power, consisting of power from the Fitzpatrick
50 nuclear project and not less than two hundred twenty-five megawatts of
51 power acquired through a competitive procurement process established by
52 the economic development power allocation board, in consultation with
53 the department of public service, and implemented by the authority;
54 provided, however that the power available through the competitive
S. 6295 38 A. 9295
1 procurement process would be acquired and transmitted to the local
2 distributor of electric service at a price not in excess of the price
3 that power from the Fitzpatrick nuclear project would be transmitted to
4 such distributor.
5 c. If the authority declines to make power available to or for a
6 business whose allocation has been so recommended, the authority shall
7 decline within the period specified by the board in its recommendation
8 and shall issue in writing a statement of reasons for such denial.
9 d. The authority shall report quarterly to the New York state econom-
10 ic development power allocation board on the anticipated availability of
11 economic development power [and], power under the power for jobs
12 program, and power under the upstate economic revitalization power
13 program for the subsequent twelve-month period.
14 e. When the authority determines that economic development power
15 [or], power under the power for jobs program or power under the upstate
16 economic revitalization power program is available, the authority shall
17 notify the New York state economic development power allocation board.
18 f. The authority shall provide for the sale of power generated at the
19 Fitzpatrick nuclear project to its industrial, business, and economic
20 development power customers at a uniform non-discriminatory rate. The
21 authority shall provide for the sale of power from the Fitzpatrick
22 nuclear project and of power acquired through a competitive procurement
23 process established by the New York state economic development power
24 allocation board to local distributors of electric service for busi-
25 nesses and not-for-profit corporations receiving allocations of power
26 under the power for jobs program and the upstate economic revitalization
27 power program at a rate that shall combine the rate set for power from
28 the Fitzpatrick nuclear project and the actual cost of power obtained
29 through the competitive procurement process, with no mark-up; provided
30 however, that prior to the time when power is available through the
31 competitive bidding process, the authority shall provide power under the
32 power for jobs program at the rate set for power from the Fitzpatrick
33 nuclear project.
34 g. The authority is authorized, as deemed feasible and advisable by
35 the trustees, to use revenues from the sale of power from the Fitzpa-
36 trick nuclear project under the power for jobs program and the upstate
37 economic revitalization power program, to the extent such revenues
38 exceed revenues from the sale of such power in the calendar year prior
39 to the effective date of this paragraph [g], to make a voluntary
40 contribution no later than sixty days after the end of the state fiscal
41 year into the state treasury to the credit of the general fund. Other
42 power authority customers shall not incur any costs in the implementa-
43 tion of the power for jobs program and the upstate economic revitaliza-
44 tion power program.
45 § 2. Subdivision 14 of section 1005 of the public authorities law, as
46 amended by chapter 316 of the laws of 1997, is amended to read as
47 follows:
48 14. To provide to the governor, to the speaker of the assembly, and
49 to the temporary president of the senate, on or before April first of
50 each year, an economic development report including projections for the
51 next succeeding twelve months of the amount of economic development
52 power [and], power under the power for jobs program, and power under the
53 upstate economic revitalization power program which will be or is
54 expected to be available with a listing of the current recipients of
55 economic development power and of power under the power for jobs program
56 and under the upstate economic revitalization power program, and data on
S. 6295 39 A. 9295
1 the number and types of jobs resulting from allocation of economic
2 development power and of power under the power for jobs program and
3 under the upstate economic revitalization power program. Such report
4 shall also include the amount of revenues collected and used in the
5 previous calendar year pursuant to the eighth unnumbered paragraph of
6 this section. Prior to the dates of expiration of the initial contracts
7 executed pursuant to the power for jobs program and pursuant to the
8 upstate economic revitalization power program, such report shall also
9 include an evaluation with regard to the need for continuation of
10 economic development programs, including the power for jobs program and
11 the upstate economic revitalization power program.
12 § 3. Subdivisions (b), (d) and (g) of section 183 of the economic
13 development law, as amended by chapter 316 of the laws of 1997, are
14 amended to read as follows:
15 (b) To evaluate applications for allocations of economic development
16 power [and], of power under the power for jobs program, and of power
17 under the upstate economic revitalization power program and to make
18 recommendations with respect to such proposed allocations.
19 (d) To provide advice and assistance when appropriate to applicants on
20 state economic development programs and services in addition to the
21 economic development power [and], power under the power for jobs program
22 [and], power under the upstate economic revitalization power program and
23 industrial incentive awards specifically provided for in this section.
24 (g) The board shall solicit applications for economic development
25 power and for power under the power for jobs program, and for power
26 under the upstate economic revitalization power program by public
27 notice. Such notice shall be in the form of newspaper advertisements,
28 press releases, and by such other means as the board finds appropriate.
29 Solicitations of preliminary applications for power under the power for
30 jobs program shall begin promptly after the effective date of the chap-
31 ter of the laws of nineteen hundred ninety-seven establishing such
32 program. Solicitations of preliminary applications for power under the
33 upstate economic revitalization power program shall begin promptly after
34 the effective date of the chapter of the laws of two thousand establish-
35 ing such program.
36 § 4. The section heading and subdivision (f) of section 187 of the
37 economic development law, as amended by chapter 316 of the laws of 1997,
38 are amended to read as follows:
39 [Economic] Allocations of economic development power [and], power for
40 jobs [allocations] power, and upstate economic revitalization power.
41 (f) Upon approval or denial of any application for economic develop-
42 ment power [or], power under the power for jobs program, or power under
43 the upstate economic revitalization power program, the board shall issue
44 in writing a statement of its findings and conclusions with respect to
45 such application and the reasons for its approval or denial.
46 § 5. The economic development law is amended by adding a new section
47 189-a to read as follows:
48 § 189-a. Upstate economic revitalization power program. (a) Defi-
49 nitions. For the purposes of this section, the following terms shall
50 have the following meanings:
51 1. "Local distributor of electric service" shall mean an electric
52 corporation as defined in subdivision thirteen of section two of the
53 public service law that was a member of the New York power pool on Janu-
54 ary first, nineteen hundred ninety-five, or its successor in interest.
55 2. "Small business" shall include a corporation, partnership, limited
56 liability company, sole proprietorship or individual that normally
S. 6295 40 A. 9295
1 utilizes a minimum peak electric demand of four hundred kilowatts or
2 less.
3 3. "Upstate applications" shall mean applications submitted by appli-
4 cants, including businesses and small businesses, located within coun-
5 ties in the state, other than New York, Bronx, Kings, Queens, Richmond,
6 Dutchess, Nassau, Orange, Putnam, Rockland, Suffolk and Westchester.
7 (b) Source of power. Power under the upstate economic revitalization
8 program shall be in addition to economic development power and power for
9 jobs power and shall mean two hundred megawatts of power, consisting of
10 power from the Fitzpatrick nuclear project and power acquired by the
11 power authority of the state of New York through the competitive
12 procurement process established by the board; provided, however, that
13 power available through the competitive procurement process shall be
14 acquired and transmitted to the local distributor of electric service at
15 a price not in excess of the price that power from the Fitzpatrick
16 nuclear project would be transmitted to such distributor.
17 (c) Criteria. The board may recommend an upstate application for an
18 allocation of power under the upstate economic revitalization program
19 for a business or small business for the purpose of job retention and/or
20 job creation under criteria established in sections one hundred eighty-
21 four and subdivision (d) of section one hundred eighty-nine of this
22 article. In recommending an allocation under the upstate economic revi-
23 talization program, the board shall consider whether the locality in
24 which the business is or plans to locate has offered to provide economic
25 incentives to the business to supplement the incentive provided under
26 such program.
27 (d) Timing of allocations and classification into blocks. 1. The board
28 shall recommend upstate applications for allocations of two hundred
29 megawatts of power under the upstate economic revitalization power
30 program and the power authority of the state of New York shall approve
31 such applications on or before December thirty-first, two thousand.
32 2. For the purpose of determining the timing of the tax credits avail-
33 able under paragraph (b) of subdivision nine of section one hundred
34 eighty-six-a of the tax law, the power delivered pursuant to all allo-
35 cations of power during the two years of the program shall be assigned
36 to particular blocks: block I shall consist of seventy-four megawatts of
37 power; block II shall consist of one hundred forty-four megawatts of
38 power; block III shall consist of one hundred twenty-six megawatts of
39 power; and block IV shall consist of fifty-six megawatts of power. Each
40 utility delivering power under the program shall be assigned a propor-
41 tion of the total megawatts in each block. The power delivered by each
42 utility participating in the program shall be proportionately divided
43 among each of the four blocks according to the ratio between the amount
44 of power delivered by such utility at the time of credit calculation and
45 the total of all power delivered by all utilities under the program at
46 such time.
47 (e) Eligibility. The board shall recommend upstate applications for
48 allocations of power under the upstate economic revitalization program
49 to or for businesses which normally utilize a minimum peak electric
50 demand in excess of four hundred kilowatts; provided, however, that up
51 to fifty megawatts of power under this program may be recommended for
52 allocations to small businesses. The board may require small businesses
53 that normally utilize a minimum peak electric demand of less than one
54 hundred kilowatts to aggregate their electric demand for the purposes of
55 applying to the board for an allocation of power.
S. 6295 41 A. 9295
1 (f) Upstate applications. Upstate applications of power under the
2 upstate economic revitalization program shall be in the form and contain
3 such information, exhibits and supporting data as the board may
4 prescribe. Each member of the board shall be provided a copy of each
5 upstate application submitted for such power. Subject to confidentiality
6 requirements, a copy of each upstate application shall be sent promptly
7 to the governor, the speaker of the assembly, the minority leader of the
8 assembly, the chairman of the assembly ways and means committee, the
9 temporary president of the senate, the minority leader of the senate,
10 the chairman of the senate finance committee and to each member of the
11 state legislature in whose district any portion of the facility owned or
12 operated by the applicant is located. Any official entitled to receive a
13 copy of each upstate application shall also receive five days notice of
14 the board's intent to evaluate and make a decision on such application
15 and the date of the meeting at which such evaluation and decision making
16 is scheduled to take place.
17 (g) Terms of contracts. The board shall recommend allocations of power
18 under this program under contracts with an effective term not in excess
19 of two years with such terms and conditions as it deems appropriate.
20 Such terms and conditions shall include reasonable provisions providing
21 for the partial or complete withdrawal of the power under the program in
22 the event that the recipient fails to maintain mutually agreed upon
23 levels of employment and power utilization.
24 (h) Contracts. Recommendation for an allocation of power under the
25 upstate economic revitalization program shall qualify an applicant that
26 submits an upstate application to enter into a contract for purchase of
27 power from the power authority of the state of New York pursuant to the
28 terms and conditions of the recommendation. Such contracts and allo-
29 cations shall provide that the local distributor of electric service
30 shall purchase the power and deliver it at the then-current delivery
31 rate or service charge for economic development power or, if none
32 exists, at a delivery rate set by the appropriate jurisdictional regula-
33 tory body.
34 (i) Delivery of power. If a local distributor of electric service
35 declines to purchase power offered under the upstate economic revitali-
36 zation program, it shall nonetheless deliver the power to the customers
37 selected by the board at the current delivery rate for economic develop-
38 ment power or, if none exists, at a delivery rate set by the appropriate
39 jurisdictional regulatory body. Revenue losses relating to such trans-
40 actions shall not give rise to the tax credits available under the
41 program when a utility has declined to purchase power allocated for sale
42 under such program.
43 § 6. Subdivision 9 of section 186-a of the tax law, as added by chap-
44 ter 316 of the laws of 1997, is amended to read as follows:
45 9. (a) Power for jobs credit. Notwithstanding any other provision of
46 this chapter or any other law to the contrary, for taxable periods nine-
47 teen hundred ninety-seven through and including two thousand three, any
48 utility which delivers power under the power for jobs program, as estab-
49 lished by section one hundred eighty-nine of the economic development
50 law, shall be allowed a credit, subject to the limitations thereon
51 contained in this [subdivision] paragraph, against the tax imposed under
52 this section equal to net lost revenues from the delivery of power under
53 such power for jobs program. Net lost revenues means the "net receipts"
54 less "net utility revenue" from such delivery of power. For purposes of
55 this subdivision, "net receipts" shall mean the amount that the utility
56 would have otherwise received from customers receiving power pursuant to
S. 6295 42 A. 9295
1 allocations by the New York state economic development power allocation
2 board in accordance with section one hundred eighty-nine of the economic
3 development law, pursuant to its tariff supervised by the public service
4 commission for substantially comparable service otherwise applicable to
5 such customers in the absence of such designation, less the utility's
6 annual average incremental short-term variable and capacity costs of
7 providing such power in the absence of such purchase. For the purposes
8 of this subdivision, "net utility revenue" shall mean the revenues the
9 utility actually receives in accordance with such section one hundred
10 eighty-nine from such customers so designated by the New York state
11 economic development power allocation board, less the utility's cost of
12 such power under such program. Provided, however, that any credit under
13 this [section] paragraph shall be used only with respect to the same
14 taxable year during which such credit arose and shall not be capable of
15 being carried forward or backward to any other taxable period.
16 Provided, further, no credit shall be allowed in the case of power
17 furnished to a customer of a utility which was not a customer of such
18 utility on the effective date of this [subdivision] paragraph. Nor
19 shall any credit be allowed to any utility for the total amount of
20 power, expressed in kilowatt hours, purchased by the customers of such
21 utility under such program during the taxable period that exceeds the
22 prorated "baseline energy use" by all customers of that utility purchas-
23 ing power under such program during the taxable period. "Baseline ener-
24 gy use" with respect to each customer shall mean the largest amount of
25 kilowatt hours of energy used by such customer during any twelve consec-
26 utive month period occurring during the preceding thirty months imme-
27 diately preceding the New York state economic development power allo-
28 cation board's recommendation of such customer's application, prorated
29 to reflect the length of time of the customer's participation in such
30 program during the taxable period. Provided further, however, that in
31 accordance with subdivision (k) of section one hundred eighty-nine of
32 the economic development law no tax credit shall be available for any
33 revenue losses when a utility has declined to purchase power allocated
34 for sale under such program. No electric corporation shall be allowed
35 the tax credit authorized by this subdivision until it shall file a
36 certificate from the department of public service for the period covered
37 by the return verifying that the calculation of such tax credit complies
38 with this subdivision and the department of public service has approved
39 such certificate and forwarded a copy of such approved certificate to
40 the commissioner or any amended certificate resulting from the need for
41 correction. Provided, further, no credit shall be allowed under para-
42 graph (b) of this subdivision without a certification setting forth the
43 particular block designation (I, II, III, IV) assigned to the power
44 delivered under the upstate economic revitalization program. The credit
45 allowed by this subdivision shall not be applicable in calculating any
46 other tax imposed or authorized to be imposed by this chapter or any
47 other law, and the amount of the tax surcharge imposed under section one
48 hundred eighty-six-c of this article shall be calculated and payable as
49 if the credit provided for by this subdivision were not allowed.
50 (b) Upstate economic revitalization power credit. (i) Notwithstanding
51 any provision of this chapter or any other law to the contrary, for the
52 taxable periods two thousand one through two thousand four any utility
53 which delivers power under the upstate economic revitalization power
54 program, blocks I, II, III and IV (as such program is described in
55 section one hundred eighty-nine-a of the economic development law and as
56 such blocks are described in subdivision (d) of such section) shall be
S. 6295 43 A. 9295
1 allowed a credit, subject to the limitations contained in this para-
2 graph, against the tax imposed by this section equal to one-half of the
3 net lost revenues from the delivery of power under such upstate economic
4 revitalization power allocation, blocks I, II, III and IV through Decem-
5 ber thirty-first, two thousand two. The credit shall be taken in accord-
6 ance with the following eligibility schedule: (A) for the taxable period
7 two thousand one, power assigned to block I of such upstate economic
8 revitalization power program shall be eligible for the credit; (B) for
9 the taxable period two thousand two, power assigned to block II of such
10 upstate economic revitalization power program shall be eligible for the
11 credit; (C) for the period two thousand three, power assigned to block
12 III of such upstate economic revitalization program shall be eligible
13 for the credit; (D) for the taxable period two thousand four, power
14 assigned to block IV of such upstate economic revitalization power
15 program shall be eligible for the credit.
16 (ii) The term "net lost revenues" shall have the same meaning and
17 shall be calculated in the same manner as that set forth in paragraph
18 (a) of this subdivision.
19 (iii) Provided, however, that any credit under this paragraph shall be
20 used only with respect to the taxable year for which it is allowed in
21 accordance with the foregoing schedule and shall not be capable of being
22 carried forward or backward to any other taxable period. No tax credit
23 shall be available for any revenue losses when a utility has declined to
24 purchase power allocated for sale under such program.
25 § 7. This act shall take effect immediately and shall remain in effect
26 through December 31, 2004, after such date this act shall expire and be
27 deemed repealed; provided, however, notwithstanding the expiration set
28 forth in section 9 of chapter 316 of the laws of 1997, the provisions of
29 this act relating to the assessment, payment, determination, and refund
30 of the tax imposed under tax law, section 186-a of the tax law, and the
31 audit and refund of the upstate economic revitalization power credit
32 against such tax, as added by this act, shall continue in effect with
33 respect to taxable years under such section 186-a of the tax law to
34 which such credit was applicable.
35 PART C
36 Section 1. The tax law is amended by adding a new section 16 to read
37 as follows:
38 § 16. QNTC credit for research activities in upstate high technology
39 enterprise zones. (a) Allowance of credit. A taxpayer which is a quali-
40 fied new technology company (QNTC) and which is subject to tax under
41 article nine-A or twenty-two of this chapter shall be allowed a credit
42 against such tax, pursuant to the provisions referenced in subdivision
43 (c) of this section. The credit shall be equal to twenty percent of the
44 taxpayer's in-house research expenses paid or incurred during the taxa-
45 ble year with respect to services performed and supplies used in an
46 upstate high technology enterprise zone.
47 (b) Definitions. (1) The term "qualified new technology company" means
48 a company: (A) which is primarily engaged during the taxable year in any
49 of the activities referenced in subparagraph one, two, three or four of
50 paragraph (b) of subdivision one of section three thousand one hundred
51 two-e of the public authorities law; (B) which during the taxable year
52 has gross sales less than one hundred million dollars; and (C) which
53 during the taxable year has a ratio of research and development funds to
54 net sales which equals or exceeds six percent.
S. 6295 44 A. 9295
1 (2) An "upstate high technology enterprise zone" means a county
2 outside the metropolitan commuter transportation district designated by
3 the commissioner of economic development, pursuant to an evaluation of
4 economic criteria, including, but not limited to, the relative employ-
5 ment performance of the county when compared to the state.
6 (3) The term "in-house research expenses" shall have the meaning
7 ascribed thereto by section 41(b)(2)(A)(i) and (ii) of the internal
8 revenue code (relating to wages and supplies used in connection with
9 research activities).
10 (c) Cross-references. For application of the credit provided for in
11 this section, see the following provisions of this chapter:
12 (1) Article 9-A: Section 210, subdivision (28),
13 (2) Article 22: Section 606, subsections (i) and (v).
14 § 2. Section 210 of the tax law is amended by adding a new subdivision
15 28 to read as follows:
16 28. QNTC credit for research activities in upstate high technology
17 enterprise zones. (a) Allowance of credit. A taxpayer which is a quali-
18 fied new technology company (QNTC) shall be allowed a credit for
19 research activities in upstate high technology enterprise zones, to be
20 computed as provided in section sixteen of this chapter, against the tax
21 imposed by this article.
22 (b) Application of credit. The credit allowed under this subdivision
23 for any taxable year shall not reduce the tax due for such year to less
24 than the higher of the amounts prescribed in paragraphs (c) and (d) of
25 subdivision one of this section. However, if the amount of credit
26 allowed under this subdivision for any taxable year reduces the tax to
27 such amount, any amount of credit thus not deductible in such taxable
28 year shall be treated as an overpayment of tax to be credited or
29 refunded in accordance with the provisions of section ten hundred eight-
30 y-six of this chapter. Provided, however, the provisions of subsection
31 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
32 no interest shall be paid thereon.
33 § 3. Paragraph 1 of subsection (i) of section 606 of the tax law, as
34 amended by section 2 of part J of chapter 407 of the laws of 1999, is
35 amended to read as follows:
36 (1) For purposes of determining the application under this section of
37 the credit provisions enumerated in the following table, a shareholder
38 of a New York S corporation:
39 (A) shall be treated as the taxpayer with respect to his or her pro
40 rata share of the corresponding credit base of such corporation, deter-
41 mined for the corporation's taxable year ending with or within the
42 shareholder's taxable year and
43 (B) shall be treated as the owner of a new business with respect to
44 such share if the corporation qualifies as a new business pursuant to
45 paragraph (j) of subdivision twelve of section two hundred ten of this
46 chapter, unless the shareholder has previously received a refund by
47 reason of the application of this subparagraph, or this subsection as it
48 was in effect for taxable years beginning before nineteen hundred nine-
49 ty-four.
50 With respect to the The corporation's
51 following credit credit base under
52 under this section: section two hundred ten
53 or section fourteen
54 hundred fifty-six of this
55 chapter is:
S. 6295 45 A. 9295
1 Investment tax credit Investment credit base
2 under subsection (a) or qualified
3 rehabilitation
4 expenditures under
5 subdivision twelve of
6 section two hundred ten
7 Economic development Cost or other basis
8 zone investment tax credit under subdivision
9 under subsection (j) twelve-B
10 of section two hundred
11 ten
12 Economic development Eligible wages under
13 zone wage tax credit subdivision nineteen of
14 under subsection (k) section two hundred ten
15 or subsection (e) of
16 section fourteen hundred
17 fifty-six
18 Economic development zone Qualified investments
19 capital tax credit and contributions under
20 under subsection (1) subdivision twenty of
21 section two hundred ten
22 or subsection (d) of
23 section fourteen hundred
24 fifty-six
25 Agricultural property tax Allowable school
26 credit under subsection (n) district property taxes under
27 subdivision twenty-two of
28 section two hundred ten
29 Credit for employment Qualified first-year wages or
30 of persons with dis- qualified second-year wages
31 abilities under under subdivision
32 subsection (o) twenty-three of section
33 two hundred ten
34 or subsection (f)
35 of section fourteen
36 hundred fifty-six
37 Employment incentive Applicable investment credit
38 credit under subsec- base under subdivision
39 tion (a-1) twelve-D
40 Economic develop- Applicable investment
41 ment zone employment credit under sub-
42 incentive credit under division twelve-C
43 subsection (j-1)
44 Alternative fuels credit Cost under subdivision
45 under subsection (p) twenty-four
46 Qualified emerging Applicable credit base
47 technology company under subdivision twelve-E
S. 6295 46 A. 9295
1 employment credit of section two hundred ten
2 under subsection (q)
3 Qualified emerging Qualified investments under
4 technology subdivision twelve-F of
5 capital tax credit section two hundred ten
6 under subsection (r)
7 Credit for purchase of an Cost of an automated
8 automated external defibrillator external defibrillator under
9 under subsection (s) subdivision twenty-five of
10 section two hundred ten
11 or subsection (j) of section
12 fourteen hundred fifty-six
13 QNTC credit for research Amount of credit under
14 activities in upstate high subdivision twenty-eight of
15 technology enterprise zones section two hundred ten
16 under subsection (v)
17 § 4. Section 606 of the tax law is amended by adding a new subsection
18 (v) to read as follows:
19 (v) QNTC credit for research activities in upstate high technology
20 enterprise zones. (1) Allowance of credit. A taxpayer which is a quali-
21 fied new technology company (QNTC) shall be allowed a credit for
22 research activities in upstate high technology enterprise zones, to be
23 computed as provided in section sixteen of this chapter, against the tax
24 imposed by this article.
25 (2) Application of credit. If the amount of the credit allowed under
26 this subsection for any taxable year shall exceed the taxpayer's tax for
27 such year, the excess shall be treated as an overpayment of tax to be
28 credited or refunded in accordance with the provisions of section six
29 hundred eighty-six of this article, provided, however, that no interest
30 shall be paid thereon.
31 § 5. This act shall take effect immediately and shall apply to taxable
32 years beginning on or after January 1, 2002 and before January 1, 2012.
33 PART D
34 Section 1. Subdivision 12-E of section 210 of the tax law, as added by
35 section 32 of part A of chapter 56 of the laws of 1998, is amended to
36 read as follows:
37 12-E. [Qualified emerging technology] Technology company employment
38 [credit] credits. (a) General. A taxpayer which is a qualified emerging
39 technology company or a qualified new technology company and which meets
40 the employment test specified in paragraph (c) of this subdivision shall
41 be allowed a credit, to be computed as hereinafter provided, against the
42 tax imposed by this article[, provided: (1) the taxpayer is a].
43 (b) Definitions. (1) The term "qualified emerging technology company"
44 (QETC) shall have the meaning ascribed thereto by [pursuant to the
45 provisions of] section thirty-one hundred two-e of the public authori-
46 ties law[; and].
47 (2) The terms "qualified new technology company" (QNTC) and "upstate
48 high technology enterprise zone" (zone) shall have the meanings ascribed
49 thereto in section sixteen of this chapter.
50 (3) The term "small QNTC" shall mean a QNTC which during the taxable
51 year has gross sales of less than ten million dollars.
S. 6295 47 A. 9295
1 (4) The term "large QNTC" shall mean a QNTC which during the taxable
2 year has gross sales of at least ten million but not more than one
3 hundred million dollars.
4 (c) Employment test. (1) In the case of a QETC, the average number of
5 individuals employed full time by the taxpayer in New York state during
6 the taxable year is at least one hundred one percent of the taxpayer's
7 base [year] period employment.
8 (2) In the case of a small QNTC, (A) the average number of individuals
9 employed full-time by the taxpayer in upstate high technology enterprise
10 zones during the taxable year is greater than such number determined for
11 the base period,
12 (B) the increase described in clause (A) of this subparagraph is equal
13 to or greater than one percent of the taxpayer's base period employment,
14 and
15 (C) the average number of individuals employed full-time in the state
16 during the taxable year exceeds the base period employment by an amount
17 which equals or exceeds the increase described in clause (A) of this
18 subparagraph.
19 (3) In the case of a large QNTC, (A) the average number of individuals
20 employed full-time by the taxpayer in upstate high technology enterprise
21 zones during the taxable year is greater than such number determined for
22 the base period,
23 (B) the increase described in clause (A) of this subparagraph is equal
24 to or greater than ten percent of the taxpayer's base period employment,
25 and
26 (C) the average number of individuals employed full-time in the state
27 during the taxable year exceeds the base period employment by an amount
28 which equals or exceeds the increase described in clause (A) of this
29 subparagraph.
30 (d) Base period; base period employment. For [the] purposes of this
31 subdivision, (1) the term "base period" means the three taxable years
32 immediately preceding the first taxable year in which the credit is
33 claimed, and
34 (2) the term "base [year] period employment" means the average number
35 of individuals employed full-time by the taxpayer in the state during
36 the [three taxable years immediately preceding the first taxable year in
37 which the credit is claimed] base period.
38 (3) short years. Where the taxpayer provided full-time employment
39 within the state (in the case of a QETC), or within any zones (in the
40 case of a QNTC), during only a portion of such three-year period, then
41 [the first effective date for the company to take advantage of this
42 credit shall be the next year following the first full taxable year that
43 the company had full-time employment in New York state. For the] for
44 purposes of this [paragraph] subdivision the term "three years" shall be
45 deemed to refer instead to [the prior year's full-time employment after
46 the first year and the average of the first eight quarters of employment
47 after the first two taxable years in New York state] such portion,
48 provided, however, the first taxable year for which the credit may be
49 taken with respect to such company shall be the taxable year next
50 following the first full taxable year during which such company had
51 full-time employment in New York state (in the case of a QETC) or in any
52 zone (in the case of a QNTC).
53 [(b)] (e) Allowance of credit. The credit under this subdivision shall
54 be allowed only in the first taxable year in which the credit is claimed
55 and in each of the next two taxable years, provided that the conditions
56 of paragraph (a) of this subdivision are satisfied in each taxable year.
S. 6295 48 A. 9295
1 [(c)] (f) Employee counts. For the purposes of this subdivision, aver-
2 age number of individuals employed full-time shall be computed by adding
3 the number of such individuals employed by the taxpayer at the end of
4 each quarter during each taxable year or other applicable period and
5 dividing the sum so obtained by the number of such quarters occurring
6 within such taxable year or other applicable period; provided however,
7 except that in computing base [year] period employment, there shall be
8 excluded therefrom any employee with respect to whom a credit provided
9 for under subdivision nineteen of this section is claimed for the taxa-
10 ble year.
11 [(d) The] (g) Amount of credit. (1) In the case of a QETC, the amount
12 of the credit shall equal the product of one thousand dollars [times]
13 and the number of individuals employed full-time by the taxpayer in the
14 taxable year [that are] which is in excess of [one hundred percent of]
15 the taxpayer's base [year] period employment.
16 (2) In the case of a QNTC, the amount of the credit shall equal the
17 product of two thousand dollars and the number of individuals employed
18 full-time by the taxpayer within upstate high technology enterprise
19 zones during the taxable year which is in excess of the taxpayer's
20 employment within any such zones during the taxpayer's base period.
21 [(e) The] (h) Application of credit. (1) QETC. In the case of a QETC,
22 the credit herein provided for and any carryover of such credit shall
23 not be allowed in an amount which will reduce the tax payable to less
24 than the higher of the amounts prescribed in paragraphs (c) and (d) of
25 subdivision one of this section. Provided, however, that if the amount
26 of credit allowable under this subdivision for any taxable year reduces
27 the tax to such amount, any amount of credit not deductible in such
28 taxable year may be carried over to the following year or years and may
29 be deducted from the taxpayer's tax for such year or years. In lieu of
30 such carryover, [any such taxpayer] a QETC which: [(1)] (A) qualifies as
31 a new business under [subparagraphs one and two of] paragraph (j) of
32 subdivision twelve of this section without regard to subparagraph three
33 of such paragraph (j); and [(2)] (B) has not been subject to tax under
34 this article for more than six taxable years (excluding short taxable
35 years) prior to the taxable year during which the taxpayer first becomes
36 eligible for the credit herein provided for, or for more than eight
37 taxable years if such taxpayer's primary business or product requires
38 federal regulatory approval or involves the discovery and sale of
39 substances requiring clinical trials as part of the federal drug admin-
40 istration's required approval process for the use of such substances by
41 humans; may elect, on its report for its taxable year with respect to
42 which such credit is allowed, to treat the amount of such carryover as
43 an overpayment of tax to be credited or refunded in accordance with the
44 provisions of section one thousand eighty-six of this chapter. Provided,
45 however, the provisions of subsection (c) of section one thousand eight-
46 y-eight of this chapter notwithstanding, no interest shall be paid ther-
47 eon.
48 (2) QNTC. In the case of a QNTC, the credit allowed under this subdi-
49 vision for any taxable year shall not reduce the tax due for such year
50 to less than the higher of the amounts prescribed in paragraphs (c) and
51 (d) of subdivision one of this section. However, if the amount of credit
52 allowed under this subdivision for any taxable year reduces the tax to
53 such amount, any amount of credit thus not deductible in such taxable
54 year shall be treated as an overpayment of tax to be credited or
55 refunded in accordance with the provisions of section one thousand
56 eighty-six of this chapter. Provided, however, the provisions of
S. 6295 49 A. 9295
1 subsection (c) of section one thousand eighty-eight of this chapter
2 notwithstanding, no interest shall be paid thereon.
3 § 2. Subdivision 12-F of section 210 of the tax law, as added by
4 section 32 of part A of chapter 56 of the laws of 1998, is amended to
5 read as follows:
6 12-F. [Qualified emerging technology] Technology company capital tax
7 [credit] credits. (a) Allowance of credit. A taxpayer shall be allowed
8 a credit against the tax imposed by this article for investment in a
9 qualified emerging technology company (QETC) or a small qualified emerg-
10 ing technology company (QNTC). The amount of the credit shall be equal
11 to [one of the following percentages, per] the allowable percentage of
12 each qualified investment made during the taxable year in a [qualified
13 emerging technology company as defined in section thirty-one hundred
14 two-e of the public authorities law, made during the taxable year, and
15 certified by the commissioner, either:
16 (1)] QETC, or a small QNTC which has a location in an upstate high
17 technology enterprise zone, provided, however, no credit shall be
18 allowed under this subdivision with respect to such a company unless
19 such company is certified by the commissioner as a QETC, or as a small
20 QNTC which has a location in an upstate high technology enterprise zone.
21 (b) Definitions. (1) The term "qualified emerging technology company"
22 shall have the meaning ascribed thereto in section thirty-one hundred
23 two-e of the public authorities law.
24 (2) The term "qualified new technology company" and "upstate high
25 technology enterprise zone" shall have the meaning ascribed thereto in
26 section sixteen of this chapter.
27 (3) The term "small QNTC" shall have the meaning ascribed thereto in
28 subdivision twelve-E of this section.
29 (4) The term "allowable percentage" means: (A) in the case of invest-
30 ment in a QETC, (i) ten percent of qualified investments [in qualified
31 emerging technology companies, except for investments made by or on
32 behalf of an owner of the business, including, but not limited to, a
33 stockholder, partner or sole proprietor, or any related person, as
34 defined in subparagraph (C) of paragraph three of subsection (b) of
35 section four hundred sixty-five of the internal revenue code, and
36 provided, however, that] if the taxpayer certifies to the commissioner
37 that the qualified investment will not be sold, transferred, traded, or
38 disposed of during the four years following the year in which the credit
39 is first claimed; or
40 [(2)] (ii) twenty percent of qualified investments [in qualified
41 emerging technology companies, except for investments made by or on
42 behalf of an owner of the business, including, but not limited to, a
43 stockholder, partner or sole proprietor, or any related person, as
44 defined in subparagraph (C) of paragraph three of subsection (b) of
45 section four hundred sixty-five of the internal revenue code, and
46 provided, however, that] if the taxpayer certifies to the commissioner
47 that the qualified investment will not be sold, transferred, traded, or
48 disposed of during the nine years following the year in which the credit
49 is first claimed.
50 (B) in the case of investment in a small ONTC, (i) twenty percent of
51 qualified investments if the taxpayer certifies to the commissioner that
52 the qualified investment will not be sold, transferred, traded, or
53 disposed of during the four years following the year in which the credit
54 is first claimed; or
55 (ii) forty percent of qualified investments if the taxpayer certifies
56 to the commissioner that the qualified investment will not be sold,
S. 6295 50 A. 9295
1 transferred, traded, or disposed of during the nine years following the
2 year in which the credit is first claimed.
3 (5) "Qualified investment" means the contribution of property to a
4 corporation in exchange for original issue capital stock or other owner-
5 ship interest, the contribution of property to a partnership in exchange
6 for an interest in the partnership, and similar contributions in the
7 case of a business entity not in corporate or partnership form in
8 exchange for an ownership interest in such entity. Provided, however, a
9 qualified investment shall not include an investment made by or on
10 behalf of an owner of the business, including, but not limited to, a
11 stockholder, partner or sole proprietor, or any related person, as
12 defined in subparagraph (C) of paragraph three of subsection (b) of
13 section four hundred sixty-five of the internal revenue code.
14 (c) Aggregate credit limitation. The total amount of credit allowable
15 to a taxpayer under this [provision] subdivision for all years, taken in
16 the aggregate, shall not exceed:
17 (1) in the case of qualified investments in QETCs, (A) one hundred
18 fifty thousand dollars in the case of investments [made pursuant to
19 subparagraph one of this paragraph and shall not exceed] where the
20 allowable percentage is ten percent, and
21 (B) three hundred thousand dollars in the case of investments [made
22 pursuant to subparagraph two of this paragraph.
23 (b) In no event shall the credit and] where the allowable percentage
24 is twenty percent, and
25 (2) in the case of qualified investments in small QNTCs, (A) three
26 hundred thousand dollars in the case of investments where the allowable
27 percentage is twenty percent, and
28 (B) six hundred thousand dollars in the case of investments where the
29 allowable percentage is forty percent.
30 (d) Application of credit. (1) QETC. In the case of investments in
31 QETCs, the credit herein provided for and any carryover of such credit
32 shall not be allowed [under this subdivision for any taxable year, in
33 the aggregate,] in an amount which will reduce the tax [due for such
34 year] payable to less than the higher of the amounts prescribed in para-
35 graphs (c) and (d) of subdivision one of this section. However, if the
36 amount of credit or carryovers of such credit, or both, allowed under
37 this subdivision for any taxable year reduces the tax to such amount, or
38 if any part of the credit or carryovers of such credit may not be
39 deducted from the tax otherwise due by reason of the final sentence of
40 this paragraph, any amount of credit or carryovers of such credit thus
41 not deductible in such taxable year may be carried over to the following
42 year or years and may be deducted from the tax for such year or years.
43 In addition, the amount of such credit, and carryovers of such credit to
44 the taxable year, deducted from the tax otherwise due may not, in the
45 aggregate, exceed fifty percent of the tax imposed under section two
46 hundred nine of this article computed without regard to any credit
47 provided for by this section.
48 [(c)] (2) QNTC. In the case of investments in small QNTCs, the credit
49 herein provided for and any carryover of such credit shall not be
50 allowed in an amount which will reduce the tax payable to less than the
51 higher of the amounts prescribed in paragraphs (c) and (d) of subdivi-
52 sion one of this section. However, if the amount of credit allowed under
53 this subdivision for any taxable year reduces the tax to such amount,
54 any amount of credit thus not deductible in such taxable year shall be
55 treated as an overpayment of tax to be credited or refunded in accord-
56 ance with the provisions of section one thousand eighty-six of this
S. 6295 51 A. 9295
1 chapter. Provided, however, the provisions of subsection (c) of section
2 one thousand eighty-eight of this chapter notwithstanding, no interest
3 shall be paid thereon.
4 (e) Credit recapture. (1) Where a taxpayer sells, transfers or other-
5 wise disposes of corporate stock, a partnership interest or other owner-
6 ship interest arising from the making of a qualified investment which
7 was the basis, in whole or in part, for the allowance under this subdi-
8 vision of [the credit provided for under subparagraph one of paragraph
9 (a) of this subdivision] a ten percent credit in the case of a QETC
10 investment or a twenty percent credit in the case of a QNTC investment,
11 or where an investment which was the basis for such allowance is, in
12 whole or in part, recovered by such taxpayer, and such disposition or
13 recovery occurs during the taxable year or within forty-eight months
14 from the close of the taxable year with respect to which such credit is
15 allowed, the taxpayer shall add back, with respect to the taxable year
16 in which the disposition or recovery described above occurred, the
17 required portion of the credit originally allowed.
18 (2) Where a taxpayer sells, transfers or otherwise disposes of corpo-
19 rate stock, a partnership interest or other ownership interest arising
20 from the making of a qualified investment which was the basis, in whole
21 or in part, for the allowance under this subdivision of [the credit
22 provided for under subparagraph two of paragraph (a) of this subdivi-
23 sion] a twenty percent credit in the case of a QETC or a forty percent
24 credit in the case of a QNTC, or where an investment which was the basis
25 for such allowance is in any manner, in whole or in part, recovered by
26 such taxpayer, and such disposition or recovery occurs during the taxa-
27 ble year or within one hundred eight months from the close of the taxa-
28 ble year with respect to which such credit is allowed, the taxpayer
29 shall add back, with respect to the taxable year in which the disposi-
30 tion or recovery described [in subparagraph one of this paragraph] above
31 occurred, the required portion of the credit originally allowed.
32 (3) The required portion of the credit originally allowed shall be the
33 product of (A) the portion of such credit attributable to the property
34 disposed of and (B) the applicable percentage.
35 (4) The applicable percentage shall be:
36 (A) [for credits allowed pursuant to subparagraph one of paragraph (a)
37 of this subdivision] in the case of a ten percent credit on QETC invest-
38 ment or a twenty percent credit on a QNTC investment:
39 (i) one hundred percent, if the disposition or recovery occurs within
40 the taxable year with respect to which the credit is allowed or within
41 twelve months of the end of such taxable year,
42 (ii) seventy-five percent, if the disposition or recovery occurs more
43 than twelve but not more than twenty-four months after the end of the
44 taxable year with respect to which the credit is allowed,
45 (iii) fifty percent, if the disposition or recovery occurs more than
46 twenty-four months but not more than thirty-six months after the end of
47 the taxable year with respect to which the credit is allowed, or
48 (iv) twenty-five percent, if the disposition or recovery occurs more
49 than thirty-six months but not more than forty-eight months after the
50 end of the taxable year with respect to which the credit is allowed; or
51 (B) [for credits allowed pursuant to subparagraph two of paragraph (a)
52 of this subdivision] in the case of a twenty percent credit on a QETC
53 investment or a forty percent credit on a QNTC investment:
54 (i) one hundred percent, if the disposition or recovery occurs within
55 the taxable year with respect to which the credit is allowed or within
56 twelve months of the end of such taxable year,
S. 6295 52 A. 9295
1 (ii) eighty percent, if the disposition or recovery occurs more than
2 twelve but not more than forty-eight months after the end of the taxable
3 year with respect to which the credit is allowed,
4 (iii) sixty percent, if the disposition or recovery occurs more than
5 forty-eight months but not more than seventy-two months after the end of
6 the taxable year with respect to which the credit is allowed,
7 (iv) forty percent, if the disposition or recovery occurs more than
8 seventy-two months but not more than ninety-six months after the end of
9 the taxable year with respect to which the credit is allowed, or
10 (v) twenty percent, if the disposition or recovery occurs more than
11 ninety-six months but not more than one hundred eight months after the
12 end of the taxable year with respect to which the credit is allowed.
13 § 3. Paragraph 1 of subsection (i) of section 606 of the tax law, as
14 amended by section 2 of part J of chapter 407 of the laws of 1999, is
15 amended to read as follows:
16 (1) For purposes of determining the application under this section of
17 the credit provisions enumerated in the following table, a shareholder
18 of a New York S corporation:
19 (A) shall be treated as the taxpayer with respect to his or her pro
20 rata share of the corresponding credit base of such corporation, deter-
21 mined for the corporation's taxable year ending with or within the
22 shareholder's taxable year and
23 (B) shall be treated as the owner of a new business with respect to
24 such share if the corporation qualifies as a new business pursuant to
25 paragraph (j) of subdivision twelve of section two hundred ten of this
26 chapter, unless the shareholder has previously received a refund by
27 reason of the application of this subparagraph, or this subsection as it
28 was in effect for taxable years beginning before nineteen hundred nine-
29 ty-four.
30 The corporation's
31 With respect to the credit base under
32 following credit section two hundred ten
33 under this section: or section fourteen
34 hundred fifty-six of this
35 chapter is:
36 Investment tax credit Investment credit base
37 under subsection (a) or qualified
38 rehabilitation
39 expenditures under
40 subdivision twelve of
41 section two hundred ten
42 Economic development Cost or other basis
43 zone investment tax credit under subdivision
44 under subsection (j) twelve-B
45 of section two hundred
46 ten
47 Economic development Eligible wages under
48 zone wage tax credit subdivision nineteen of
49 under subsection (k) section two hundred ten
50 or subsection (e) of
51 section fourteen hundred
52 fifty-six
S. 6295 53 A. 9295
1 Economic development zone Qualified investments
2 capital tax credit and contributions under
3 under subsection (1) subdivision twenty of
4 section two hundred ten
5 or subsection (d) of
6 section fourteen hundred
7 fifty-six
8 Agricultural property tax Allowable school
9 credit under subsection (n) district property taxes under
10 subdivision twenty-two of
11 section two hundred ten
12 Credit for employment Qualified first-year wages or
13 of persons with dis- qualified second-year wages
14 abilities under under subdivision
15 subsection (o) twenty-three of section
16 two hundred ten
17 or subsection (f)
18 of section fourteen
19 hundred fifty-six
20 Employment incentive Applicable investment credit
21 credit under subsec- base under subdivision
22 tion (a-1) twelve-D
23 Economic develop- Applicable investment
24 ment zone employment credit under sub-
25 incentive credit under division twelve-C
26 subsection (j-1)
27 Alternative fuels credit Cost under subdivision
28 under subsection (p) twenty-four
29 [Qualified emerging Applicable credit base
30 technology] Technology company under subdivision twelve-E
31 employment [credit] credits of section two hundred ten
32 under subsection (q)
33 [Qualified emerging Qualified investments under
34 technology] Technology company subdivision twelve-F of
35 capital tax [credit] credits section two hundred ten
36 under subsection (r)
37 Credit for purchase of an Cost of an automated
38 automated external defibrillator external defibrillator under
39 under subsection (s) subdivision twenty-five of
40 section two hundred ten
41 or subsection (j) of section
42 fourteen hundred fifty-six
43 § 4. Subsection (q) of section 606 of the tax law, as added by section
44 2 of part I of chapter 407 of the laws of 1999, is amended to read as
45 follows:
46 (q) [Qualified emerging technology] Technology company employment
47 [credit] credits. (1) General. A taxpayer which is a sole proprietor of
48 a qualified emerging technology company (QETC) or a qualified new tech-
S. 6295 54 A. 9295
1 nology company (QNTC), a member of a partnership which is a QETC or a
2 QNTC, or a shareholder of a New York S corporation which is a QETC or a
3 QNTC and which meets the employment test specified in paragraph three of
4 this subsection shall be allowed a credit, to be computed as hereinafter
5 provided, against the tax imposed by this article[, provided:
6 (A) the taxpayer is a sole proprietor of a].
7 (2) Definitions. (A) The term "qualified emerging technology company"
8 shall have the meaning ascribed thereto by[, a member of a partnership
9 which is a qualified emerging technology company, or a shareholder of a
10 New York S corporation which is a qualified emerging technology company,
11 as defined in] section thirty-one hundred two-e of the public authori-
12 ties law[; and].
13 (B) The terms "qualified new technology company" and "upstate high
14 technology enterprise zone" (zone) shall have the meanings ascribed
15 thereto in section sixteen of this chapter.
16 (C) The term "small QNTC" shall mean a QNTC which during the taxable
17 year has gross sales of less than ten million dollars.
18 (D) The term "large QNTC" shall mean a QNTC which during the taxable
19 year has gross sales of at least ten million but not more than one
20 hundred million dollars.
21 (3) Employment test. (A) In the case of a QETC, the average number of
22 individuals employed full-time by such company in New York state during
23 the taxable year is at least one hundred one percent of such company's
24 base [year] period employment.
25 (B) In the case of a small QNTC, (i) the average number of individuals
26 employed full-time by such company in upstate high technology enterprise
27 zones during the taxable year is greater than such number determined for
28 the base period,
29 (ii) the increase described in clause (i) of this subparagraph is
30 equal to or greater than one percent of such company's base period
31 employment, and
32 (iii) the average number of individuals employed full-time in the
33 state during the taxable year exceeds the base period employment by an
34 amount which equals or exceeds the increase described in clause (i) of
35 this subparagraph.
36 (C) In the case of a large QNTC, (i) the average number of individuals
37 employed full-time by such company in upstate high technology enterprise
38 zones during the taxable year is greater than such number determined for
39 the base period,
40 (ii) the increase described in clause (i) of this subparagraph is
41 equal to or greater than ten percent of such company's base period
42 employment, and
43 (iii) the average number of individuals employed full-time in the
44 state during the taxable year exceeds the base period employment by an
45 amount which equals or exceeds the increase described in clause (i) of
46 this subparagraph.
47 (4) Base period; base period employment. For [the] purposes of this
48 subsection, (A) the term "base period" means the three taxable years
49 immediately preceding the first taxable year in which the credit is
50 claimed and
51 (B) the term "base [year] period employment" means the average number
52 of individuals employed full-time by such company in the state during
53 the [three taxable years immediately preceding the first taxable year in
54 which the credit is claimed] base period.
55 (C) Short years. Where such company provided full-time employment
56 within the state (in the case of a QETC), or within any zones (in the
S. 6295 55 A. 9295
1 case of a QNTC), during only a portion of such three-year period, then
2 for purposes of this subsection, the term "three years" shall be deemed
3 to refer instead to such portion, provided, however, the first taxable
4 year for which this credit may be taken with respect to such company
5 shall be the [next] taxable year next following the first full taxable
6 year [that] during which such company had full-time employment in New
7 York state (in the case of a QETC) or in any zone (in the case of a
8 QNTC).
9 [(2)] (5) Allowance of credit. The credit under this subsection shall
10 be allowed only in the first taxable year in which the credit is claimed
11 and in each of the next two taxable years, provided that the conditions
12 of paragraph one of this subsection are satisfied in each taxable year.
13 [(3)] (6) Employee counts. For the purposes of this subsection, aver-
14 age number of individuals employed full-time shall be computed by adding
15 the number of such individuals employed by such company at the end of
16 each quarter during each taxable year or other applicable period and
17 dividing the sum so obtained by the number of such quarters occurring
18 within such taxable year or other applicable period; provided, however,
19 that in computing base [year] period employment there shall be excluded
20 therefrom any employee with respect to whom a credit provided for under
21 subsection (k) of this section is claimed for the taxable year.
22 [(4) The] (7) Amount of credit. (A) In the case of a QETC, the amount
23 of the credit shall equal the product of one thousand dollars [multi-
24 plied by] and the number of individuals employed full-time by such
25 company in the taxable year [that are] which is in excess of [one
26 hundred percent of] such company's base [year] period employment.
27 (B) In the case of a QNTC, the amount of the credit shall equal the
28 product of two thousand dollars and the number of individuals employed
29 full-time by such company within upstate high technology enterprise
30 zones during the taxable year which is in excess of such company's
31 employment within any such zones during the company's base period.
32 [(5) If] (8) Application of credit. (A) QETC. In the case of a QETC,
33 if the amount of the credit and carryovers of such credit allowed under
34 this subsection for any taxable year shall exceed the taxpayer's tax for
35 such year, the excess, as well as any part of the credit or carryovers
36 of such credit, or both, may be carried over to the following year or
37 years and may be deducted from the taxpayer's tax for such year or
38 years. In lieu of carrying over any such excess, a taxpayer who [(A)]
39 (i) qualifies as an owner of a new business (in the case of such [quali-
40 fied emerging technology company] QETC) under paragraph ten of
41 subsection (a) of this section without regard to subparagraph (C) of
42 such paragraph, and [(B) the taxpayer] (ii) who has not operated such
43 new business entity, in the case of a sole proprietorship, or where such
44 new business entity is a partnership or a New York S corporation, such
45 entity has not operated, for more than six taxable years (excluding
46 short taxable years) prior to the taxable year with respect to which the
47 taxpayer first becomes eligible for the credit herein provided for with
48 respect to such company, or for more than eight taxable years if such
49 new business entity's primary business or product requires federal regu-
50 latory approval or involves the discovery and sale of substances requir-
51 ing clinical trials as part of the federal drug administration's
52 required approval process for the use of such substances by humans, may,
53 at his or her option, receive such excess as a refund. Any refund paid
54 pursuant to this paragraph shall be deemed to be a refund of an overpay-
55 ment of tax as provided in section six hundred eighty-six of this arti-
56 cle, provided, however, that no interest shall be paid thereon.
S. 6295 56 A. 9295
1 (B) QNTC. In the case of a QNTC, if the amount of the credit allowed
2 under this subsection for any taxable year shall exceed the taxpayer's
3 tax for such year, the excess shall be treated as an overpayment of tax
4 to be credited or refunded in accordance with the provisions of section
5 six hundred eighty-six of this article, provided, however, that no
6 interest shall be paid thereon.
7 § 5. Subsection (r) of section 606 of the tax law, as added by section
8 2 of part I of chapter 407 of the laws of 1999, is amended to read as
9 follows:
10 (r) [Qualified emerging technology] Technology company capital tax
11 [credit] credits. (1) Allowance of credit. A taxpayer shall be allowed
12 a credit against the tax imposed by this article for investment in a
13 qualified emerging technology company (QETC) or a small qualified new
14 technology company (QNTC). The amount of the credit shall be equal to
15 [one of the following percentages, per] the allowable percentage of each
16 qualified investment made during the taxable year in a [qualified emerg-
17 ing technology company as defined in section thirty-one hundred two-e of
18 the public authorities law, made during the taxable year, and certified
19 by the commissioner, either: (A)] QETC, or a small QNTC which has a
20 location in an upstate high technology enterprise zone, provided, howev-
21 er, no credit shall be allowed under this subsection with respect to
22 such company unless such company is certified by the commissioner as a
23 QETC, or a small QNTC which has a location in an upstate high technology
24 enterprise zone.
25 (2) Definitions. (A) The term "qualified emerging technology company"
26 shall have the meaning ascribed thereto in section thirty-one hundred
27 two-e of the public authorities law.
28 (B) The term "qualified new technology company" and "upstate high
29 technology enterprise zone" shall have the meaning ascribed thereto in
30 section sixteen of this chapter.
31 (C) The term "small QNTC" shall have the meaning ascribed thereto in
32 subsection (q) of this section.
33 (D) The term "allowable percentage" means: (i) in the case of invest-
34 ment in a QETC,
35 (I) ten percent of qualified investments [in qualified emerging tech-
36 nology companies, except for investments made by or on behalf of an
37 owner of the business, including, but not limited to, a stockholder,
38 partner or sole proprietor, or any related person, as defined in subpar-
39 agraph (C) of paragraph three of subsection (b) of section four hundred
40 sixty-five of the internal revenue code, and provided, however, that] if
41 the taxpayer certifies to the commissioner that the qualified investment
42 will not be sold, transferred, traded, or disposed of during the four
43 years following the year in which the credit is first claimed; or
44 [(B)] (II) twenty percent of qualified investments [in qualified
45 emerging technology companies, except for investments made by or on
46 behalf of an owner of the business, including, but not limited to, a
47 stockholder, partner or sole proprietor, or any related person, as
48 defined in subparagraph (C) of paragraph three of subsection (b) of
49 section four hundred sixty-five of the internal revenue code, and
50 provided, however, that] if the taxpayer certifies to the commissioner
51 that the qualified investment will not be sold, transferred, traded, or
52 disposed of during the nine years following the year in which the credit
53 is first claimed.
54 [(C)] (ii) in the case of investment in a small QNTC, (I) twenty
55 percent of qualified investments if the taxpayer certifies to the
56 commissioner that the qualified investment will not be sold, trans-
S. 6295 57 A. 9295
1 ferred, traded, or disposed of during the four years following the year
2 in which the credit is first claimed; or
3 (II) forty percent of qualified investments if the taxpayer certifies
4 to the commissioner that the qualified investment will not be sold,
5 transferred, traded, or disposed of during the nine years following the
6 year in which the credit is first claimed.
7 (E) "Qualified investment" means the contribution of property to a
8 corporation in exchange for original issue capital stock or other owner-
9 ship interest, the contribution of property to a partnership in exchange
10 for an interest in the partnership, and similar contributions in the
11 case of a business entity not in corporate or partnership form in
12 exchange for an ownership interest in such entity. Provided, however, a
13 qualified investment shall not include an investment made by or on
14 behalf of an owner of the business, including, but not limited to, a
15 stockholder, partner or sole proprietor, or any related person, as
16 defined in subparagraph (C) of paragraph three of subsection (b) of
17 section four hundred sixty-five of the internal revenue code.
18 (3) Aggregate credit limitation. The total amount of credit allowable
19 to a taxpayer under this [provision] subsection for all years, taken in
20 the aggregate, shall not exceed:
21 (A) in the case of qualified investments in QETCs, (i) one hundred
22 fifty thousand dollars in the case of investments [made pursuant to
23 subparagraph (A) of this paragraph and shall not exceed] where the
24 allowable percentage is ten percent, and
25 (ii) three hundred thousand dollars in the case of investments [made
26 pursuant to subparagraph (B) of this paragraph] where the allowable
27 percentage is twenty percent.
28 (B) in the case of qualified investments in small QNTCs, (i) three
29 hundred thousand dollars in the case of investments where the allowable
30 percentage is twenty percent, and
31 (ii) six hundred thousand dollars in the case of investments where the
32 allowable percentage is forty percent.
33 (C) In the case of a husband or wife who is required to file a sepa-
34 rate return, the credit limitation amounts under this paragraph shall be
35 one-half of the amounts set forth in subparagraphs (A) and (B) of this
36 paragraph, unless the spouse of the taxpayer has no credit allowable
37 under this subsection for the taxable year of such spouse which ends
38 within or with the taxpayer's taxable year.
39 (D) In the case of an estate or trust, the credit limitation amounts
40 under this paragraph shall be apportioned among the estate or trust and
41 the beneficiaries in the same manner as the income of the estate or
42 trust is apportioned.
43 (4) Application of credit. (A) QETC. In the case of investments in
44 QETCs, [(2) (A) If] if the amount of the credit and carryovers of such
45 credit allowed under this subsection for any taxable year shall exceed
46 the taxpayer's tax for such year, any amount of credit or carryovers of
47 such credit thus not deductible in such taxable year may be carried over
48 to the following year or years and may be deducted from the tax for such
49 year or years. In addition, the amount of such credit, and carryovers of
50 such credit to the taxable year, deducted from the tax otherwise due may
51 not, in the aggregate, exceed fifty percent of the tax imposed under
52 section six hundred one computed without regard to any credit provided
53 for by this section.
54 [(B) In the case of a husband or wife who is required to file a sepa-
55 rate return, the limitations provided for in subparagraph (c) of para-
56 graph one of this subsection shall be seventy-five thousand dollars in
S. 6295 58 A. 9295
1 lieu of one hundred fifty thousand dollars, and one hundred fifty thou-
2 sand dollars in lieu of three hundred thousand dollars, unless the
3 spouse of the taxpayer has no credit allowable under this subsection for
4 the taxable year of such spouse which ends within or with the taxpayer's
5 taxable year.
6 (C) In the case of an estate or trust, the limitations provided for in
7 paragraph one of this subsection shall be reduced to an amount which
8 bears the same ratio to one hundred fifty thousand dollars and an amount
9 which bears the same ratio to three hundred thousand dollars as the
10 portion of the income of the estate or trust which is not allocated to
11 beneficiaries bears to the total income of the estate or trust.]
12 (B) QNTC. In the case of investments in small QNTCs, if the amount of
13 the credit allowed under this subsection for any taxable year shall
14 exceed the taxpayer's tax for such year, the excess shall be treated as
15 an overpayment of tax to be credited or refunded in accordance with the
16 provisions of section six hundred eighty-six of this article, provided,
17 however, that no interest shall be paid thereon.
18 [(3)] (5) Credit recapture. (A) Where a taxpayer sells, transfers or
19 otherwise disposes of corporate stock, a partnership interest or other
20 ownership interest arising from the making of a qualified investment
21 which was the basis, in whole or in part, for the allowance under this
22 subsection of [the credit provided for under subparagraph (A) of para-
23 graph one of this subsection] a ten percent credit in the case of a QETC
24 investment or a twenty percent credit in the case of a QNTC investment,
25 or where an investment which was the basis for such allowance is, in
26 whole or in part, recovered by such taxpayer, and such disposition or
27 recovery occurs during the taxable year or within forty-eight months
28 from the close of the taxable year with respect to which such credit is
29 allowed, the taxpayer shall add back, with respect to the taxable year
30 in which the disposition or recovery described above occurred, the
31 required portion of the credit originally allowed.
32 (B) Where a taxpayer sells, transfers or otherwise disposes of corpo-
33 rate stock, a partnership interest or other ownership interest arising
34 from the making of a qualified investment which was the basis, in whole
35 or in part, for the allowance under this subsection of [the credit
36 provided for under subparagraph (B) of paragraph one of this subsection]
37 a twenty percent credit in the case of a QETC or a forty percent credit
38 in the case of a QNTC, or where an investment which was the basis for
39 such allowance is in any manner, in whole or in part, recovered by such
40 taxpayer, and such disposition or recovery occurs during the taxable
41 year or within one hundred eight months from the close of the taxable
42 year with respect to which such credit is allowed, the taxpayer shall
43 add back, with respect to the taxable year in which the disposition or
44 recovery described [in subparagraph one of this paragraph] above
45 occurred, the required portion of the credit originally allowed.
46 (C) The required portion of the credit originally allowed shall be the
47 product of (i) the portion of such credit attributable to the property
48 disposed of and (ii) the applicable percentage.
49 (D) The applicable percentage shall be:
50 (i) [for credits allowed pursuant to subparagraph (A) of paragraph one
51 of this subsection] in the case of a ten percent credit on a QETC
52 investment or a twenty percent credit on a QNTC investment:
53 (I) one hundred percent, if the disposition or recovery occurs within
54 the taxable year with respect to which the credit is allowed or within
55 twelve months of the end of such taxable year,
S. 6295 59 A. 9295
1 (II) seventy-five percent, if the disposition or recovery occurs more
2 than twelve but not more than twenty-four months after the end of the
3 taxable year with respect to which the credit is allowed,
4 (III) fifty percent, if the disposition or recovery occurs more than
5 twenty-four months but not more than thirty-six months after the end of
6 the taxable year with respect to which the credit is allowed, or
7 (IV) twenty-five percent, if the disposition or recovery occurs more
8 than thirty-six months but not more than forty-eight months after the
9 end of the taxable year with respect to which the credit is allowed; or
10 (ii) [for credits allowed pursuant to subparagraph (B) of paragraph
11 one of this subsection] in the case of a twenty percent credit on a QETC
12 investment or a forty percent credit on a QNTC investment:
13 (I) one hundred percent, if the disposition or recovery occurs within
14 the taxable year with respect to which the credit is allowed or within
15 twelve months of the end of such taxable year,
16 (II) eighty percent, if the disposition or recovery occurs more than
17 twelve but not more than forty-eight months after the end of the taxable
18 year with respect to which the credit is allowed,
19 (III) sixty percent, if the disposition or recovery occurs more than
20 forty-eight months but not more than seventy-two months after the end of
21 the taxable year with respect to which the credit is allowed,
22 (IV) forty percent, if the disposition or recovery occurs more than
23 seventy-two months but not more than ninety-six months after the end of
24 the taxable year with respect to which the credit is allowed, or
25 (V) twenty percent, if the disposition or recovery occurs more than
26 ninety-six months but not more than one hundred eight months after the
27 end of the taxable year with respect to which the credit is allowed.
28 § 6. This act shall take effect immediately and shall apply to taxable
29 years beginning on or after January 1, 2002 and before January 1, 2012.
30 PART E
31 Section 1. The tax law is amended by adding a new section 15 to read
32 as follows:
33 § 15. QNTC credit for acquisition interest for upstate high technology
34 enterprise zone property. (a) Allowance of credit. A taxpayer which is a
35 qualified new technology company (QNTC) and which is subject to tax
36 under article nine-A or twenty-two of this chapter shall be allowed a
37 credit against such tax, pursuant to the provisions referenced in subdi-
38 vision (c) of this section. Such credit shall be equal to the amount of
39 allowable interest paid or incurred during the taxable year with respect
40 to qualified property.
41 (b) Definitions. (1) The terms "qualified new technology company" and
42 "upstate high technology enterprise zone" shall have the meanings
43 ascribed thereto in section sixteen of this article.
44 (2) The term "allowable interest" means interest on debt incurred for
45 the purchase or construction of qualified property, where such debt is
46 secured by such qualified property and such interest is paid or incurred
47 during the allowable period.
48 (3) The term "qualified property" means real and tangible personal
49 property which is depreciable pursuant to section 167 of the internal
50 revenue code, has a useful life of four years or more, is acquired by
51 purchase as defined in section 179(d) of such code and is used in the
52 taxpayer's trade or business in an upstate high technology enterprise
53 zone.
S. 6295 60 A. 9295
1 (4) The term "allowable period" means the five taxable years beginning
2 with the taxable year during which the qualified property is placed in
3 service in an upstate high technology enterprise zone.
4 (c) Cross-references. For application of the credit provided for in
5 this section, see the following provisions of this chapter:
6 (1) Article 9-A: Section 210, subdivision (27),
7 (2) Article 22: Section 606, subsections (i) and (u).
8 § 2. Section 210 of the tax law is amended by adding a new subdivi-
9 sion 27 to read as follows:
10 27. QNTC credit for acquisition interest for upstate high technology
11 enterprise zone property. (a) Allowance of credit. A taxpayer which is a
12 qualified new technology company (QNTC) shall be allowed a credit for
13 acquisition interest for upstate high technology enterprise zone proper-
14 ty, to be computed as provided in section fifteen of this chapter,
15 against the tax imposed by this article.
16 (b) Application of credit. The credit allowed under this subdivision
17 for any taxable year shall not reduce the tax due for such year to less
18 than the higher of the amounts prescribed in paragraphs (c) and (d) of
19 subdivision one of this section. However, if the amount of credit
20 allowed under this subdivision for any taxable year reduces the tax to
21 such amount, any amount of credit thus not deductible in such taxable
22 year shall be treated as an overpayment of tax to be credited or
23 refunded in accordance with the provisions of section ten hundred eight-
24 y-six of this chapter. Provided, however, the provisions of subsection
25 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
26 no interest shall be paid thereon.
27 § 3. Paragraph 1 of subsection (i) of section 606 of the tax law, as
28 amended by section 2 of part J of chapter 407 of the laws of 1999, is
29 amended to read as follows:
30 (1) For purposes of determining the application under this section of
31 the credit provisions enumerated in the following table, a shareholder
32 of a New York S corporation:
33 (A) shall be treated as the taxpayer with respect to his or her pro
34 rata share of the corresponding credit base of such corporation, deter-
35 mined for the corporation's taxable year ending with or within the
36 shareholder's taxable year and
37 (B) shall be treated as the owner of a new business with respect to
38 such share if the corporation qualifies as a new business pursuant to
39 paragraph (j) of subdivision twelve of section two hundred ten of this
40 chapter, unless the shareholder has previously received a refund by
41 reason of the application of this subparagraph, or this subsection as it
42 was in effect for taxable years beginning before nineteen hundred nine-
43 ty-four.
44 With respect to the The corporation's
45 following credit credit base under
46 under this section: section two hundred ten
47 or section fourteen
48 hundred fifty-six of this
49 chapter is:
50 Investment tax credit Investment credit base
51 under subsection (a) or qualified
52 rehabilitation
53 expenditures under
54 subdivision twelve of
S. 6295 61 A. 9295
1 section two hundred ten
2 Economic development Cost or other basis
3 zone investment tax credit under subdivision
4 under subsection (j) twelve-B
5 of section two hundred
6 ten
7 Economic development Eligible wages under
8 zone wage tax credit subdivision nineteen of
9 under subsection (k) section two hundred ten
10 or subsection (e) of
11 section fourteen hundred
12 fifty-six
13 Economic development zone Qualified investments
14 capital tax credit and contributions under
15 under subsection (1) subdivision twenty of
16 section two hundred ten
17 or subsection (d) of
18 section fourteen hundred
19 fifty-six
20 Agricultural property tax Allowable school
21 credit under subsection (n) district property taxes under
22 subdivision twenty-two of
23 section two hundred ten
24 Credit for employment Qualified first-year wages or
25 of persons with dis- qualified second-year wages
26 abilities under under subdivision
27 subsection (o) twenty-three of section
28 two hundred ten
29 or subsection (f)
30 of section fourteen
31 hundred fifty-six
32 Employment incentive Applicable investment credit
33 credit under subsec- base under subdivision
34 tion (a-1) twelve-D
35 Economic develop- Applicable investment
36 ment zone employment credit under sub-
37 incentive credit under division twelve-C
38 subsection (j-1)
39 Alternative fuels credit Cost under subdivision
40 under subsection (p) twenty-four
41 Qualified emerging Applicable credit base
42 technology company under subdivision twelve-E
43 employment credit of section two hundred ten
44 under subsection (q)
45 Qualified emerging Qualified investments under
46 technology company subdivision twelve-F of
S. 6295 62 A. 9295
1 capital tax credit section two hundred ten
2 under subsection (r)
3 Credit for purchase of an Cost of an automated
4 automated external defibrillator external defibrillator under
5 under subsection (s) subdivision twenty-five of
6 section two hundred ten
7 or subsection (j) of section
8 fourteen hundred fifty-six
9 QNTC credit for acquisition Amount of credit under
10 interest for upstate high subdivision twenty-seven of
11 technology zone property under section two hundred ten
12 subsection (u)
13 § 4. Section 606 of the tax law is amended by adding a new subsection
14 (u) to read as follows:
15 (u) QNTC credit for acquisition interest for upstate high technology
16 enterprise zone property. (1) Allowance of credit. A taxpayer which is a
17 qualified new technology company (QNTC) shall be allowed a credit for
18 acquisition interest for upstate high technology enterprise zone proper-
19 ty, to be computed as provided in section fifteen of this chapter,
20 against the tax imposed by this article.
21 (2) Application of credit. If the amount of the credit allowed under
22 this subsection for any taxable year shall exceed the taxpayer's tax for
23 such year, the excess shall be treated as an overpayment of tax to be
24 credited or refunded in accordance with the provisions of section six
25 hundred eighty-six of this article, provided, however, that no interest
26 shall be paid thereon.
27 § 5. This act shall take effect immediately and shall apply to taxable
28 years beginning on or after January 1, 2002 and before January 1, 2012.
29 PART F
30 Section 1. The article heading of article 1 of the tax law, as amended
31 by chapter 960 of the laws of 1958, is amended to read as follows:
32 SHORT TITLE; DEFINITIONS; CREDITS; MISCELLANEOUS
33 § 2. The tax law is amended by adding a new section 14 to read as
34 follows:
35 § 14. QNTC credit for energy taxes paid in upstate high technology
36 enterprise zones. (a) Allowance of credit. A taxpayer which is a quali-
37 fied new technology company (QNTC) and which is subject to tax under
38 article nine-A or twenty-two of this chapter shall be allowed a credit
39 against such tax, pursuant to the provisions referenced in subdivision
40 (d) of this section. Such credit shall be equal to the sum of the taxes
41 imposed under sections one hundred eighty-six-a and one hundred eighty-
42 nine of this chapter which during the taxable year were either paid by
43 the taxpayer or passed through to the taxpayer but only with regard to
44 gas, electricity, steam, water or refrigeration, or gas, electric,
45 steam, water or refrigeration services, consumed by the taxpayer in an
46 upstate high technology enterprise zone.
47 (b) Definitions. The terms "qualified new technology company" and
48 "upstate high technology enterprise zone" shall have the meanings
49 ascribed thereto in section sixteen of this article.
50 (c) Any person who collects from, or passes through to, the taxpayer,
51 any tax as described in subdivision (a) of this section, shall provide
S. 6295 63 A. 9295
1 the taxpayer with the information with respect to such tax collected or
2 passed through which may be required to enable the taxpayer to correctly
3 compute the credit provided for in this section.
4 (d) Cross-references. For application of the credit provided for in
5 this section, see the following provisions of this chapter:
6 (1) Article 9-A: Section 210, subdivision (26),
7 (2) Article 22: Section 606, subsections (i) and (t).
8 § 3. Subdivision 26 of section 210 of the tax law, as renumbered by
9 section 1 of part J of chapter 407 of the laws of 1999, is renumbered
10 subdivision 34 and a new subdivision 26 is added to read as follows:
11 26. QNTC credit for energy taxes paid in upstate high technology
12 enterprise zones. (a) Allowance of credit. A taxpayer which is a quali-
13 fied new technology company (QNTC) shall be allowed a credit for energy
14 taxes paid in upstate high technology enterprise zones, to be computed
15 as provided in section fourteen of this chapter, against the tax imposed
16 by this article.
17 (b) Application of credit. The credit allowed under this subdivision
18 for any taxable year shall not reduce the tax due for such year to less
19 than the higher of the amounts prescribed in paragraphs (c) and (d) of
20 subdivision one of this section. However, if the amount of credit
21 allowed under this subdivision for any taxable year reduces the tax to
22 such amount, any amount of credit thus not deductible in such taxable
23 year shall be treated as an overpayment of tax to be credited or
24 refunded in accordance with the provisions of section ten hundred eight-
25 y-six of this chapter. Provided, however, the provisions of subsection
26 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
27 no interest shall be paid thereon.
28 § 4. Paragraph 1 of subsection (i) of section 606 of the tax law, as
29 amended by section 2 of part J of chapter 407 of the laws of 1999, is
30 amended to read as follows:
31 (1) For purposes of determining the application under this section of
32 the credit provisions enumerated in the following table, a shareholder
33 of a New York S corporation:
34 (A) shall be treated as the taxpayer with respect to his or her pro
35 rata share of the corresponding credit base of such corporation, deter-
36 mined for the corporation's taxable year ending with or within the
37 shareholder's taxable year and
38 (B) shall be treated as the owner of a new business with respect to
39 such share if the corporation qualifies as a new business pursuant to
40 paragraph (j) of subdivision twelve of section two hundred ten of this
41 chapter, unless the shareholder has previously received a refund by
42 reason of the application of this subparagraph, or this subsection as it
43 was in effect for taxable years beginning before nineteen hundred nine-
44 ty-four.
45 The corporation's
46 With respect to the credit base under
47 following credit section two hundred ten
48 under this section: or section fourteen
49 hundred fifty-six of this
50 chapter is:
51 Investment tax credit Investment credit base
52 under subsection (a) or qualified
53 rehabilitation
54 expenditures under
S. 6295 64 A. 9295
1 subdivision twelve of
2 section two hundred ten
3 Economic development Cost or other basis
4 zone investment tax credit under subdivision
5 under subsection (j) twelve-B
6 of section two hundred
7 ten
8 Economic development Eligible wages under
9 zone wage tax credit subdivision nineteen of
10 under subsection (k) section two hundred ten
11 or subsection (e) of
12 section fourteen hundred
13 fifty-six
14 Economic development zone Qualified investments
15 capital tax credit and contributions under
16 under subsection (1) subdivision twenty of
17 section two hundred ten
18 or subsection (d) of
19 section fourteen hundred
20 fifty-six
21 Agricultural property tax Allowable school
22 credit under subsection (n) district property taxes under
23 subdivision twenty-two of
24 section two hundred ten
25 Credit for employment Qualified first-year wages or
26 of persons with dis- qualified second-year wages
27 abilities under under subdivision
28 subsection (o) twenty-three of section
29 two hundred ten
30 or subsection (f)
31 of section fourteen
32 hundred fifty-six
33 Employment incentive Applicable investment credit
34 credit under subsec- base under subdivision
35 tion (a-1) twelve-D
36 Economic develop- Applicable investment
37 ment zone employment credit under sub-
38 incentive credit under division twelve-C
39 subsection (j-1)
40 Alternative fuels credit Cost under subdivision
41 under subsection (p) twenty-four
42 Qualified emerging Applicable credit base
43 technology company under subdivision twelve-E
44 employment credit of section two hundred ten
45 under subsection (q)
S. 6295 65 A. 9295
1 Qualified emerging Qualified investments under
2 technology company subdivision twelve-F of
3 capital tax credit section two hundred ten
4 under subsection (r)
5 Credit for purchase of an Cost of an automated
6 automated external defibrillator external defibrillator under
7 under subsection (s) subdivision twenty-five of
8 section two hundred ten
9 or subsection (j) of section
10 fourteen hundred fifty-six
11 QNTC credit for energy taxes Amount of credit under
12 paid in upstate high subdivision twenty-six of
13 technology enterprise zones under section two hundred ten
14 subsection (t)
15 § 5. Subsections (t) and (u) of section 606 of the tax law, as relet-
16 tered by section 2 of part I of chapter 407 of the laws of 1999, are
17 relettered subsections (bb) and (cc) and a new subsection (t) is added
18 to read as follows:
19 (t) QNTC credit for energy taxes paid in upstate high technology
20 enterprise zones. (1) Allowance of credit. A taxpayer which is a quali-
21 fied new technology company (QNTC) shall be allowed a credit for energy
22 taxes paid in upstate high technology enterprise zones, to be computed
23 as provided in section fourteen of this chapter, against the tax imposed
24 by this article.
25 (2) Application of credit. If the amount of the credit allowed under
26 this subsection for any taxable year shall exceed the taxpayer's tax for
27 such year, the excess shall be treated as an overpayment of tax to be
28 credited or refunded in accordance with the provisions of section six
29 hundred eighty-six of this article, provided, however, that no interest
30 shall be paid thereon.
31 § 6. This act shall take effect immediately and shall apply to taxable
32 years beginning on or after January 1, 2002 and before January 1, 2012.
33 PART G
34 Section 1. Paragraph (a) of subdivision 1 of section 210 of the tax
35 law, as amended by section 9 of part A of chapter 56 of the laws of
36 1998, is amended to read as follows:
37 (a) Entire net income base. For taxable years beginning before July
38 first, nineteen hundred ninety-nine, the amount prescribed by this para-
39 graph shall be computed at the rate of nine percent of the taxpayer's
40 entire net income base. For taxable years beginning after June thirti-
41 eth, nineteen hundred ninety-nine and before July first, two thousand,
42 the amount prescribed by this paragraph shall be computed at the rate of
43 eight and one-half percent of the taxpayer's entire net income base.
44 For taxable years beginning after June thirtieth, two thousand and
45 before July first, two thousand one, the amount prescribed by this para-
46 graph shall be computed at the rate of eight percent of the taxpayer's
47 entire net income base. For taxable years beginning after June thirti-
48 eth, two thousand one, the amount prescribed by this paragraph shall be
49 computed at the rate of seven and one-half percent of the taxpayer's
50 entire net income base. The taxpayer's entire net income base shall
51 mean the portion of the taxpayer's entire net income allocated within
52 the state as hereinafter provided, subject to any modification required
S. 6295 66 A. 9295
1 by paragraphs (d) and (e) of subdivision three of this section. However,
2 in the case of a small business taxpayer, as defined in paragraph (f) of
3 this subdivision, the amount prescribed by this paragraph shall be
4 computed as follows:
5 (i) if the entire net income base is not more than two hundred thou-
6 sand dollars, (1) for taxable years beginning before July first, nine-
7 teen hundred ninety-nine, the amount shall be eight percent of the
8 entire net income base; [and] (2) for taxable years beginning after June
9 thirtieth, nineteen hundred ninety-nine and before July first, two thou-
10 sand three, the amount shall be seven and one-half percent of the entire
11 net income base; and (3) for taxable years beginning after June thirti-
12 eth, two thousand three, the amount shall be 6.85 percent of the entire
13 net income base;
14 (ii) if the entire net income base is more than two hundred thousand
15 dollars but not over two hundred ninety thousand dollars, (1) for taxa-
16 ble years beginning before July first, nineteen hundred ninety-nine, the
17 amount shall be the sum of (a) sixteen thousand dollars, (b) nine
18 percent of the excess of the entire net income base over two hundred
19 thousand dollars and (c) five percent of the excess of the entire net
20 income base over two hundred fifty thousand dollars; (2) for taxable
21 years beginning after June thirtieth, nineteen hundred ninety-nine and
22 before July first, two thousand, the amount shall be the sum of (a)
23 fifteen thousand dollars, (b) eight and one-half percent of the excess
24 of the entire net income base over two hundred thousand dollars and (c)
25 five percent of the excess of the entire net income base over two
26 hundred fifty thousand dollars; (3) for taxable years beginning after
27 June thirtieth, two thousand and before July first, two thousand one,
28 the amount shall be the sum of (a) fifteen thousand dollars, (b) eight
29 percent of the excess of the entire net income base over two hundred
30 thousand dollars and (c) two and one-half percent of the excess of the
31 entire net income base over two hundred fifty thousand dollars; [and]
32 (4) for taxable years beginning after June thirtieth, two thousand one
33 and before July first, two thousand three, the amount shall be seven and
34 one-half percent of the entire net income base; and (5) for taxable
35 years beginning after June thirtieth, two thousand three, the amount
36 shall be the sum of (a) thirteen thousand seven hundred dollars, (b) 7.5
37 percent of the excess of the entire net income base over two hundred
38 thousand dollars and (c) 3.25 percent of the excess of the entire net
39 income base over two hundred fifty thousand dollars;
40 (iii) if the taxable period to which subparagraphs (i) and (ii) of
41 this paragraph apply is less than twelve months, the amount prescribed
42 by this paragraph shall be computed as follows:
43 (A) Multiply the entire net income base for such taxpayer by twelve;
44 (B) Divide the result obtained in (A) by the number of months in the
45 taxable year;
46 (C) Compute an amount pursuant to subparagraphs (i) and (ii) as if the
47 result obtained in (B) were the taxpayer's entire net income base;
48 (D) Multiply the result obtained in (C) by the number of months in the
49 taxpayer's taxable year;
50 (E) Divide the result obtained in (D) by twelve.
51 § 2. Paragraph (g) of subdivision 1 of section 210 of the tax law, as
52 added by chapter 190 of the laws of 1990, subparagraphs 1 and 2 as
53 amended by sections 12-a and 13 of part A of chapter 56 of the laws of
54 1998, is amended to read as follows:
55 (g) New York S corporations. (1) Taxable years beginning before July
56 1, 2002. (A) General. [The] For taxable years beginning before July
S. 6295 67 A. 9295
1 first, two thousand two, the amount prescribed by this paragraph shall
2 be, in the case of each New York S corporation, (i) the higher of the
3 amounts prescribed in paragraphs (a) and (d) of this subdivision (other
4 than the amount prescribed in the final clause of subparagraph one of
5 such paragraph (d)) (ii) reduced by the article twenty-two tax equiv-
6 alent, provided, however, that the amount thus determined shall not be
7 less than the lowest of the amounts prescribed in subparagraph one of
8 such paragraph (d) (with regard to the provisions of subparagraph three
9 of such paragraph).
10 [(2)] (B) Article twenty-two tax equivalent. For taxable years begin-
11 ning before July first, nineteen hundred ninety-nine, the article twen-
12 ty-two tax equivalent is the amount computed under paragraph (a) of this
13 subdivision by substituting for the rate therein the rate of 7.875
14 percent. For taxable years beginning after June thirtieth, nineteen
15 hundred ninety-nine and before July first, two thousand, the article
16 twenty-two tax equivalent is the amount computed under paragraph (a) of
17 this subdivision by substituting for the rate therein the rate of 7.525
18 percent. For taxable years beginning after June thirtieth, two thousand
19 and before July first, two thousand [one] two, the article twenty-two
20 tax equivalent is the amount computed under paragraph (a) of this subdi-
21 vision by substituting for the rate therein the rate of 7.175 percent.
22 [For taxable years beginning after June thirtieth, two thousand one, the
23 article twenty-two tax equivalent is the amount computed under paragraph
24 (a) of this subdivision by substituting for the rate therein the rate of
25 6.85 percent. However,]
26 (C) Small business taxpayers. Notwithstanding the provisions of
27 clauses (A) and (B) of this subparagraph, in the case of a New York S
28 corporation which is a small business taxpayer, as defined in paragraph
29 (f) of this subdivision, [for] the following provisions shall apply:
30 (i) For taxable years beginning before July first, nineteen hundred
31 ninety-nine, the article twenty-two tax equivalent is the amount
32 computed under paragraph (a) of this subdivision by substituting for the
33 rate therein the rate of 7.875 percent[, and for].
34 (ii) For taxable years beginning after June thirtieth, nineteen
35 hundred ninety-nine and before July first, two thousand one, the amount
36 computed under paragraph (a) of this subdivision, as referred to in
37 [subparagraph one] clause (A) of this [paragraph] subparagraph, shall be
38 computed by substituting for the rate therein the rate of 7.5 percent,
39 and the article twenty-two tax equivalent under paragraph (a) of this
40 subdivision shall be computed as follows:
41 [(i)] (I) if the entire net income base is not more than two hundred
42 thousand dollars, the article twenty-two tax equivalent is the amount
43 computed under paragraph (a) of this subdivision by substituting for the
44 rate therein the rate of 7.45 percent;
45 [(ii)] (II) if the entire net income base is more than two hundred
46 thousand dollars but not over two hundred ninety thousand dollars the
47 article twenty-two tax equivalent shall be computed as the sum of [(A)]
48 (a) fourteen thousand nine hundred dollars, [(B)] (b) six and eighty-
49 five hundredths percent of the first fifty thousand dollars in excess of
50 the entire net income base over two hundred thousand dollars, and [(C)]
51 (c) three and eighty-five hundredths percent of the excess, if any, of
52 the entire net income base over two hundred fifty thousand dollars.
53 (iii) For taxable years beginning after June thirtieth, two thousand
54 one and before July first, two thousand two, the amount computed under
55 paragraph (a) of this subdivision, as referred to in clause (A) of this
56 subparagraph, shall be computed by substituting for the rate therein the
S. 6295 68 A. 9295
1 rate of 7.5 percent, and the article twenty-two tax equivalent under
2 paragraph (a) of this subdivision shall be computed as follows:
3 (I) if the entire net income base is not more than two hundred thou-
4 sand dollars, the article twenty-two tax equivalent is the amount
5 computed under paragraph (a) of this subdivision by substituting for the
6 rate therein the rate of 7.475 percent;
7 (II) if the entire net income base is more than two hundred thousand
8 dollars but not over two hundred ninety thousand dollars the article
9 twenty-two tax equivalent shall be computed as the sum of (a) fourteen
10 thousand nine hundred fifty dollars, (b) 7.175 percent of the first
11 fifty thousand dollars in excess of the entire net income base over two
12 hundred thousand dollars, and (c) 5.675 percent of the excess, if any,
13 of the entire net income base over two hundred fifty thousand dollars.
14 [(3)] (D) Termination year. In the case of a termination year, the tax
15 for the S short year shall be computed under this subparagraph [one of
16 this paragraph] without regard to the fixed dollar minimum tax
17 prescribed in paragraph (d) of this subdivision, and the tax for the C
18 short year shall be computed under the opening paragraph of this subdi-
19 vision without regard to the fixed dollar minimum tax prescribed under
20 such paragraph (d), but in no event shall the sum of the tax for the S
21 short year and the tax for the C short year be less than the fixed
22 dollar minimum tax under paragraph (d) of this subdivision computed as
23 if the corporation were a New York C corporation for the entire taxable
24 year.
25 (2) Taxable years beginning after June thirtieth, two thousand two.
26 (A) General. For taxable years beginning after June thirtieth, two thou-
27 sand two, the amount prescribed by this paragraph shall be, in the case
28 of each New York S corporation, the corporation's fixed dollar minimum
29 tax prescribed in paragraph (d) of this subdivision (without regard to
30 the fixed dollar minimum prescribed in the final clause of subparagraph
31 one of such paragraph).
32 (B) Termination year. In the case of a termination year, the tax for
33 the S short year under clause (A) of this subparagraph shall be zero,
34 and the tax for the C short year shall be computed under the opening
35 paragraph of this subdivision, provided, however, the fixed dollar mini-
36 mum tax under paragraph (d) of this subdivision shall be computed as if
37 the corporation were a New York C corporation for the entire taxable
38 year.
39 § 3. This act shall take effect immediately.
40 PART H
41 Section 1. The tax law is amended by adding a new section 17 to read
42 as follows:
43 § 17. Credit for increased urban employment outside of the metropol-
44 itan commuter transportation district. (a) Allowance of credit. A
45 taxpayer subject to tax under article nine, nine-A, twenty-two, thirty-
46 two or thirty-three of this chapter shall be allowed a credit against
47 such tax, pursuant to the provisions referenced in subdivision (g) of
48 this section, based on an increase in urban employment in this state
49 outside of the metropolitan commuter transportation district.
50 (b) Pre-requisite for credit. The job growth credit component provided
51 for in this section shall be allowed only where the average number of
52 individuals, excluding general executive officers (in the case of a
53 corporation), employed full-time by the taxpayer during the taxable year
54 in (A) the state and (B) the cities of this state outside of the metro-
S. 6295 69 A. 9295
1 politan commuter transportation district, exceeds by more than twenty-
2 five the average number of such individuals employed full-time by the
3 taxpayer in (i) the state and (ii) such cities, respectively, during the
4 immediately preceding taxable year (whether under article nine, nine-A,
5 twenty-two, thirty-two or thirty-three of this chapter). If the taxpayer
6 had no such immediately preceding taxable year, such numbers with
7 respect to such immediately preceding taxable year shall be deemed to be
8 zero.
9 (c) Number of employees. The average number of individuals, excluding
10 general executive officers (in the case of a corporation), employed
11 full-time shall be computed by determining the number of such individ-
12 uals employed by the taxpayer on the thirty-first day of March, the
13 thirtieth day of June, the thirtieth day of September and the thirty-
14 first day of December during the applicable taxable year, adding togeth-
15 er the number of such individuals determined to be so employed on each
16 of such dates and dividing the sum so obtained by the number of such
17 dates occurring within such applicable taxable year.
18 (d) Amount of credit. (1) The amount of the credit for a taxable year
19 shall be the sum of the job growth credit component and the job mainte-
20 nance credit component allowable with respect to the taxable year.
21 (2) Job growth credit component. The amount of the job growth credit
22 component shall be the product of (A) the applicable credit factor set
23 forth in paragraph (e) of this subdivision and (B) the excess of the
24 average number of full-time employees, excluding general executive offi-
25 cers (in the case of a corporation), employed in the cities of this
26 state outside of the metropolitan commuter transportation district by
27 the taxpayer during the taxable year over the sum of (i) twenty-five and
28 (ii) the average number of such employees so employed during the imme-
29 diately preceding taxable year (whether under article nine, nine-A,
30 twenty-two, thirty-two or thirty-three of this chapter). If the taxpayer
31 had no such immediately preceding taxable year, such number with respect
32 to such immediately preceding taxable year shall be deemed to be zero.
33 (3) Job maintenance credit component. The amount of the job mainte-
34 nance credit component shall be an amount equal to the amount of the job
35 growth credit component, if any, allowed for the immediately preceding
36 taxable year (whether under article nine, nine-A, twenty-two, thirty-two
37 or thirty-three of this chapter), and shall be allowed only if the aver-
38 age number of full-time employees, excluding general executive officers
39 (in the case of a corporation), employed in the state and the cities of
40 this state outside of the metropolitan commuter transportation district
41 by the taxpayer during the taxable year is at least equal to the average
42 number of such employees so employed in such immediately preceding taxa-
43 ble year (whether under article nine, nine-A, twenty-two, thirty-two or
44 thirty-three of this chapter).
45 (e) Applicable credit factor. The applicable credit factor shall be
46 five hundred dollars if the average hourly rate of compensation of all
47 of the taxpayer's full-time employees, excluding general executive offi-
48 cers (in the case of a corporation), employed in the cities of this
49 state outside of the metropolitan commuter transportation district
50 during the taxable year was in excess of eight dollars. If such average
51 hourly rate of compensation was not in excess of eight dollars, then the
52 applicable credit factor shall be two hundred fifty dollars.
53 (f) Anti-abuse provision. (1) In the case of a corporate taxpayer,
54 where the composition of the taxpayer is the result of a merger, consol-
55 idation or other reorganization, or of the incorporation of an unincor-
56 porated business, the employment figures for the taxpayer shall be
S. 6295 70 A. 9295
1 computed as if the employment figures for the businesses or entities
2 merged or consolidated into, or otherwise incorporated into, the taxpay-
3 er were those of the taxpayer, for both the taxable year and any rele-
4 vant prior taxable year, to the extent necessary to effectuate the
5 intent and purposes of this section.
6 (2) In the case of a taxpayer subject to tax under article twenty-two
7 of this chapter, where the taxpayer is a sole proprietor or a member of
8 a partnership, and where the composition of such business is the result
9 of an amalgamation of the operations of other businesses or entities, or
10 of the liquidation of a corporation, the employment figures for the
11 business of which the taxpayer is the owner or partner shall be computed
12 as if the employment figures for the entities or businesses so amalga-
13 mated, or the corporation so liquidated, were those of the business of
14 which the taxpayer is the owner or partner, to the extent necessary to
15 effectuate the intent and purposes of this subdivision.
16 (g) Cross-references. For application of the credit provided for in
17 this section, see the following provisions of this chapter:
18 (1) Article 9: Section 187-c,
19 (2) Article 9-A: Section 210: subdivision 29,
20 (3) Article 22: Sections 606: subsections (i) and (w),
21 (4) Article 32: Section 1456: subsection (k),
22 (5) Article 33: Section 1511: subdivision (m).
23 § 2. The tax law is amended by adding a new section 187-c to read as
24 follows:
25 § 187-c. Credit for increased urban employment outside of the metro-
26 politan commuter transportation district. 1. Allowance of credit. A
27 taxpayer shall be allowed a credit, to be computed as provided in
28 section seventeen of this chapter, against the taxes imposed by sections
29 one hundred eighty-three, one hundred eighty-four, one hundred eighty-
30 five and one hundred eighty-six of this article. Provided, however, that
31 the amount of such credit allowable against the tax imposed by section
32 one hundred eighty-four of this article shall be the excess of the
33 amount of such credit over the amount of any credit allowed by this
34 section against the tax imposed by section one hundred eighty-three of
35 this article.
36 2. Application of credit. In no event shall the credit under this
37 section be allowed in an amount which will reduce the tax payable to
38 less than the applicable minimum tax fixed by section one hundred eight-
39 y-three, one hundred eighty-five or one hundred eighty-six of this arti-
40 cle. If, however, the amount of credit allowable under this section for
41 any taxable year reduces the tax to such amount, any amount of credit
42 not deductible in such taxable year may be carried over to the ten taxa-
43 ble years next following such taxable year and may be deducted from the
44 taxpayer's tax for such year or years.
45 § 3. Section 210 of the tax law is amended by adding new subdivision
46 29 to read as follows:
47 29. Credit for increased urban employment outside of the metropolitan
48 commuter transportation district. (a) Allowance of credit. A taxpayer
49 shall be allowed a credit, to be computed as provided in section seven-
50 teen of this chapter, against the tax imposed by this article.
51 (b) Application of credit. The credit and carryovers of such credit
52 allowed under this subdivision for any taxable year shall not, in the
53 aggregate, reduce the tax due for such year to less than the higher of
54 the amounts prescribed in paragraphs (c) and (d) of subdivision one of
55 this section. However, if the amount of credit or carryovers of such
56 credit, or both, allowed under this subdivision for any taxable year
S. 6295 71 A. 9295
1 reduces the tax to such amount, any amount of credit or carryovers of
2 such credit thus not deductible in such taxable year may be carried over
3 to the ten taxable years next following such taxable year and may be
4 deducted from the taxpayer's tax for such year or years.
5 § 4. Paragraph 1 of subsection (i) of section 606 of the tax law, as
6 amended by section 2 of part J of chapter 407 of the laws of 1999, is
7 amended to read as follows:
8 (1) For purposes of determining the application under this section of
9 the credit provisions enumerated in the following table, a shareholder
10 of a New York S corporation:
11 (A) shall be treated as the taxpayer with respect to his or her pro
12 rata share of the corresponding credit base of such corporation, deter-
13 mined for the corporation's taxable year ending with or within the
14 shareholder's taxable year and
15 (B) shall be treated as the owner of a new business with respect to
16 such share if the corporation qualifies as a new business pursuant to
17 paragraph (j) of subdivision twelve of section two hundred ten of this
18 chapter, unless the shareholder has previously received a refund by
19 reason of the application of this subparagraph, or this subsection as it
20 was in effect for taxable years beginning before nineteen hundred nine-
21 ty-four.
22 The corporation's
23 With respect to the credit base under
24 following credit section two hundred ten
25 under this section: or section fourteen
26 hundred fifty-six of this
27 chapter is:
28 Investment tax credit Investment credit base
29 under subsection (a) or qualified
30 rehabilitation
31 expenditures under
32 subdivision twelve of
33 section two hundred ten
34 Economic development Cost or other basis
35 zone investment tax credit under subdivision
36 under subsection (j) twelve-B
37 of section two hundred
38 ten
39 Economic development Eligible wages under
40 zone wage tax credit subdivision nineteen of
41 under subsection (k) section two hundred ten
42 or subsection (e) of
43 section fourteen hundred
44 fifty-six
45 Economic development zone Qualified investments
46 capital tax credit and contributions under
47 under subsection (1) subdivision twenty of
48 section two hundred ten
49 or subsection (d) of
50 section fourteen hundred
51 fifty-six
S. 6295 72 A. 9295
1 Agricultural property tax Allowable school
2 credit under subsection (n) district property taxes under
3 subdivision twenty-two of
4 section two hundred ten
5 Credit for employment Qualified first-year wages or
6 of persons with dis- qualified second-year wages
7 abilities under under subdivision
8 subsection (o) twenty-three of section
9 two hundred ten
10 or subsection (f)
11 of section fourteen
12 hundred fifty-six
13 Employment incentive Applicable investment credit
14 credit under subsec- base under subdivision
15 tion (a-1) twelve-D
16 Economic develop- Applicable investment
17 ment zone employment credit under sub-
18 incentive credit under division twelve-C
19 subsection (j-1)
20 Alternative fuels credit Cost under subdivision
21 under subsection (p) twenty-four
22 Qualified emerging Applicable credit base
23 technology company under subdivision twelve-E
24 employment credit of section two hundred ten
25 under subsection (q)
26 Qualified emerging Qualified investments under
27 technology company subdivision twelve-F of
28 capital tax credit section two hundred ten
29 under subsection (r)
30 Credit for purchase of an Cost of an automated
31 automated external defibrillator external defibrillator under
32 under subsection (s) subdivision twenty-five of
33 section two hundred ten
34 or subsection (j) of section
35 fourteen hundred fifty-six
36 Credit for increased Amount of credit under
37 urban employment outside subdivision twenty-nine
38 of the metropolitan of section two hundred ten
39 commuter transportation or subsection (k) of section fourteen
40 district under subsection (w) hundred fifty-six
41 § 5. Section 606 of the tax law is amended by adding a new subsection
42 (w) to read as follows:
43 (w) Credit for increased urban employment outside of the metropolitan
44 commuter transportation district. (1) Allowance of credit. A taxpayer
45 shall be allowed a credit, to be computed as provided in section seven-
46 teen of this chapter, against the tax imposed by this article.
S. 6295 73 A. 9295
1 (2) Application of credit. If the amount of the credit and carryovers
2 of such credit allowed under this subsection for any taxable year shall
3 exceed the taxpayer's tax for such year, the excess, as well as any part
4 of the credit or carryovers of such credit, or both, may be carried over
5 to the ten taxable years next following such taxable year and may be
6 deducted from the taxpayer's tax for such year or years.
7 § 6. Section 1456 of the tax law is amended by adding a new subsection
8 (k) to read as follows:
9 (k) Credit for increased urban employment outside of the metropolitan
10 commuter transportation district. (1) Allowance of credit. A taxpayer
11 shall be allowed a credit, to be computed as provided in section seven-
12 teen of this chapter, against the tax imposed by this article.
13 (2) Application of credit. The credit and carryovers of such credit
14 allowed under this subsection for any taxable year shall not, in the
15 aggregate, reduce the tax due for such year to less than the minimum tax
16 fixed by subsection (b) of section fourteen hundred fifty-five of this
17 article. However, if the amount of credit or carryovers of such credit,
18 or both, allowed under this subsection for any taxable year reduces the
19 tax to such amount, then any amount of credit or carryovers of such
20 credit thus not deductible in such taxable year may be carried over to
21 the ten taxable years next following such taxable year and may be
22 deducted from the taxpayer's tax for such year or years.
23 § 7. Subdivision (m) of section 1511 of the tax law, as relettered by
24 section 5 of part J of chapter 407 of the laws of 1999, is relettered
25 subdivision (r) and a new subdivision (m) is added to read as follows:
26 (m) Credit for increased urban employment outside of the metropolitan
27 commuter transportation district. (1) Allowance of credit. A taxpayer
28 shall be allowed a credit, to be computed as provided in section seven-
29 teen of this chapter, against the taxes imposed by this article.
30 (2) Application of credit. The credit and carryovers of such credit
31 allowed under this subdivision for any taxable year shall not, in the
32 aggregate, reduce the tax due for such year to less than the minimum tax
33 fixed by paragraph four of subdivision (a) of section fifteen hundred
34 two of this article. However, if the amount of credit or carryovers of
35 such credit, or both, allowed under this subdivision for any taxable
36 year reduces the tax to such amount, then any amount of credit or carry-
37 overs of such credit thus not deductible in such taxable year may be
38 carried over to the ten taxable years next following such taxable year
39 and may be deducted from the taxpayer's tax for such year or years.
40 § 8. This act shall take effect immediately and shall apply to taxable
41 years beginning on or after January 1, 2002.
42 PART I
43 Section 1. Section 3 of part X of chapter 407 of the laws of 1999
44 amending the tax law and other laws relating to tax reductions and other
45 provisions to implement the 1999-2000 state fiscal plan, is amended to
46 read as follows:
47 § 3. This act shall take effect [March 1, 2001] January 1, 2000.
48 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
49 sion, section or part of this act shall be adjudged by any court of
50 competent jurisdiction to be invalid, such judgment shall not affect,
51 impair or invalidate the remainder thereof, but shall be confined in its
52 operation to the clause, sentence, paragraph, subdivision, section or
53 part thereof directly involved in the controversy in which such judgment
54 shall have been rendered. Provided, more specifically, if the exemption
S. 6295 74 A. 9295
1 from tax contained in subdivision 6 of section 424 of the tax law, as
2 the effective date of the 1999 amendment thereof is amended by section
3 one of this act, shall be declared unconstitutional, such judgment of
4 invalidity shall not result in the extension of the exemption to anyone,
5 including out-of-state distributors who are brewers, but shall, as of
6 the date such judicial decision becomes final and no longer subject to
7 judicial review, result only in the denial of such exemption to all
8 distributors who are brewers.
9 § 3. This act shall take effect immediately.
10 PART J
11 Section 1. Subdivision (a) of section 1115 of the tax law is amended
12 by adding a new paragraph 37 to read as follows:
13 (37) (i) Machinery, equipment and other tangible personal property
14 specified herein, sold to a person operating an internet data center
15 located in this state for use in such a center, where such property: (A)
16 will be located or installed in a facility or structure which is an
17 internet data center and (B) is necessary for and directly related to
18 the provision of internet website services for sale by the operator of
19 the center. Such property shall include computer system hardware includ-
20 ing servers and routers, computer software, storage racks and cages for
21 computer equipment, interior fiber optic and copper cables, property
22 necessary to maintain the appropriate climate controlled environment for
23 the property in the internet data center such as air filtration and air
24 conditioning equipment and vapor barriers, property related to fire
25 control such as fire suppression equipment and alarms, power generators,
26 power conditioners, property related to providing a secure environment
27 such as protective barriers, property which when installed in such
28 facility or structure will constitute raised flooring and other similar
29 property. For purposes of this paragraph the operator of an internet
30 data center is a person (A) operating a facility which consists of a
31 data center specifically designed and constructed to provide a high
32 security environment for the location of servers and similar equipment
33 on which reside internet websites; and (B) providing at such facility
34 the internet website services of: (I) uninterrupted internet access to
35 its customers' web pages in a secure environment and (II) continuous
36 internet traffic management for its customers' web pages.
37 (ii) For purposes of this paragraph, an operator of an internet data
38 center, primarily engaged in the sale from such center of internet
39 access services exempt from tax under subdivision (v) of this section,
40 is not providing internet website services for sale. Primarily engaged
41 shall mean that more than fifty percent of the use of all the machinery,
42 equipment and other specified property in any such center, which would
43 otherwise be exempt under this paragraph, is for the rendition of such
44 internet access services.
45 (iii) Receipts from the retail sale of the tangible personal property
46 exempt pursuant to subparagraph (i) of this paragraph if purchased by an
47 operator of an internet data center, shall be exempt when purchased by a
48 contractor, subcontractor or repairman for use as described in such
49 subparagraph (i), where such property is to become a capital improvement
50 to real property.
51 (iv) In order to receive the exemption provided for under this para-
52 graph or subdivision (y) of this section, the operator of the internet
53 data center or the contractor, subcontractor or repairman shall furnish
54 to the vendor of the exempt property or services a certificate in such
S. 6295 75 A. 9295
1 form and containing such information as may be prescribed by the commis-
2 sioner.
3 § 2. Section 1115 of the tax law is amended by adding a new subdivi-
4 sion (y) to read as follows:
5 (y) Services otherwise taxable under paragraph three, five or eight of
6 subdivision (c) of section eleven hundred five or under section eleven
7 hundred ten of this article shall be exempt from any tax imposed pursu-
8 ant to such provisions where such services are rendered directly to or
9 in relation to the property exempt from tax pursuant to paragraph thir-
10 ty-seven of subdivision (a) of this section, provided however where any
11 such services are rendered to property or in relation to property which
12 was in part not exempt under such paragraph thirty-seven, the commis-
13 sioner shall provide for a method of allocation to exempt a portion of
14 such services.
15 § 3. This act shall take effect March 1, 2001 and shall apply to sales
16 made and uses occurring on and after such date, although made or occur-
17 ring under a prior contract.
18 PART K
19 Section 1. The public housing law is amended by adding a new article
20 2-A to read as follows:
21 ARTICLE 2-A
22 NEW YORK STATE LOW INCOME HOUSING TAX CREDIT PROGRAM
23 Section 21. Definitions.
24 22. Allowance of credit, amount and limitations.
25 23. Project monitoring.
26 24. Credit recapture.
27 25. Regulations, coordination with federal low-income housing
28 credit provisions.
29 § 21. Definitions. 1. (a) "Applicable percentage" means the appropri-
30 ate percentage (depending on whether a building is new, existing, or
31 federally subsidized) prescribed by the secretary of the treasury for
32 purposes of section 42 of the internal revenue code for the month which
33 is the earlier of
34 (i) the month in which the eligible low-income building is placed in
35 service, or
36 (ii) at the election of the taxpayer,
37 (A) the month in which the taxpayer and the commissioner enter into an
38 agreement with respect to such building (which is binding on the commis-
39 sioner, the taxpayer, and all successors in interest) as to the housing
40 credit dollar amount to be allocated to such building, or
41 (B) in the case of any building to which subsection (h)(4)(B) of such
42 section 42 applies, the month in which the tax-exempt obligations are
43 issued.
44 (b) A month may be elected under subparagraph (ii) of paragraph (a) of
45 this subdivision only if the election is made not later than the fifth
46 day after the close of such month. Such election, once made, shall be
47 irrevocable.
48 (c) If, as of the close of any taxable year in the credit period, the
49 qualified basis of an eligible low-income building exceeds such basis as
50 of the close of the first year of the credit period, the applicable
51 percentage which shall apply to such excess shall be two-thirds of the
52 applicable percentage originally ascribed to such building.
S. 6295 76 A. 9295
1 2. "Compliance period" means, with respect to any building, the period
2 of fifteen taxable years beginning with the first taxable year of the
3 credit period with respect to such building.
4 3. "Credit period" means, with respect to any eligible low-income
5 building, the period of ten taxable years beginning with
6 (a) the taxable year in which the building is placed in service, or
7 (b) at the election of the taxpayer, the succeeding taxable year,
8 but only if the building is an eligible low-income building as of the
9 close of the first year of such period. The election under paragraph (b)
10 of this subdivision, once made, shall be irrevocable.
11 4. "Eligibility statement" means a statement issued by the commission-
12 er certifying that a building is an eligible low-income building. Such
13 statement shall set forth the taxable year in which such building is
14 placed in service, the dollar amount of low-income housing credit allo-
15 cated by the commissioner to such building as provided in subdivision
16 five of section twenty-two of this article, the applicable percentage
17 and maximum qualified basis with respect to such building taken into
18 account in determining such dollar amount, sufficient information to
19 identify each such building and the taxpayer or taxpayers with respect
20 to each such building, and such other information as the commissioner,
21 in consultation with the commissioner of taxation and finance, shall
22 prescribe. Such statement shall be first issued following the close of
23 the first taxable year in the credit period, and thereafter, to the
24 extent required by the commissioner of taxation and finance, following
25 the close of each taxable year of the compliance period.
26 5. "Eligible low-income building" means a building located in this
27 state which either
28 (a) is a qualified low-income building as defined in section 42(c) of
29 the internal revenue code, or
30 (b) would be a qualified low-income building under such section if the
31 40-60 test specified in subsection (g)(1) of such section were disre-
32 garded and the 20-50 test specified in such subsection (requiring that
33 at least twenty percent of residential units be both rent-restricted and
34 occupied by individuals whose income is fifty percent or less of area
35 median gross income) were a 20-90 test.
36 6. "Qualified basis" of an eligible low-income building means the
37 qualified basis of such building determined under section 42(c) of the
38 internal revenue code, or which would be determined under such section
39 if the 20-90 test specified in paragraph (b) of subdivision five of this
40 section applied under such section 42 to determine if such building were
41 part of a qualified low-income housing project.
42 7. References in this article to section 42 of the internal revenue
43 code shall mean such section as amended from time to time.
44 § 22. Allowance of credit, amount and limitations. 1. A taxpayer
45 subject to tax under article nine-A, twenty-two, thirty-two or thirty-
46 three of the tax law which owns an interest in one or more eligible
47 low-income buildings shall be allowed a credit against such tax for the
48 amount of low-income housing credit allocated by the commissioner to
49 each such building. Except as provided in subdivision two of this
50 section, the credit amount so allocated shall be allowed as a credit
51 against the tax for the ten taxable years in the credit period.
52 2. Adjustment of first-year credit allowed in eleventh year. The cred-
53 it allowable for the first taxable year of the credit period with
54 respect to any building shall be adjusted using the rules of section
55 42(f)(2) of the internal revenue code (relating to first-year adjustment
56 of qualified basis by the weighted average of low-income to total resi-
S. 6295 77 A. 9295
1 dential units), and any reduction in first-year credit by reason of such
2 adjustment shall be allowable for the first taxable year following the
3 credit period.
4 3. Amount of credit. Except as provided in subdivisions four and five
5 of this section, the amount of low-income housing credit shall be the
6 applicable percentage of the qualified basis of each eligible low-income
7 building.
8 4. Statewide limitation. The aggregate dollar amount of credit which
9 the commissioner may allocate to eligible low-income buildings under
10 this article shall be two million dollars. The limitation provided by
11 this subdivision applies only to allocation of the aggregate dollar
12 amount of credit by the commissioner, and does not apply to allowance to
13 a taxpayer of the credit with respect to an eligible low-income building
14 for each year of the credit period.
15 5. Building limitation. The dollar amount of credit allocated to any
16 building shall not exceed the amount the commissioner determines is
17 necessary for the financial feasibility of the project and the viability
18 of the building as an eligible low-income building throughout the credit
19 period. In allocating a dollar amount of credit to any building, the
20 commissioner shall specify the applicable percentage and the maximum
21 qualified basis which may be taken into account under this article with
22 respect to such building. The applicable percentage and the maximum
23 qualified basis with respect to a building shall not exceed the amounts
24 determined in subdivisions one and six, respectively, of section twen-
25 ty-one of this article.
26 6. Long-term commitment to low-income housing required. No credit
27 shall be allowed under this article with respect to a building for the
28 taxable year unless an extended low-income housing commitment is in
29 effect as of the end of such taxable year. For purposes of this subdivi-
30 sion, the term "extended low-income housing commitment" means an agree-
31 ment between the taxpayer and the commissioner substantially similar to
32 the agreement specified in section 42(h)(6)(B) of the internal revenue
33 code.
34 7. Credit to successor owner. If a credit is allowed under subdivision
35 one of this section with respect to an eligible low-income building and
36 such building (or an interest therein) is sold during the credit period,
37 the credit for the period after the sale which would have been allowable
38 under such subdivision one to the prior owner had the building not been
39 sold shall be allowable to the new owner. Credit for the year of sale
40 shall be allocated between the parties on the basis of the number of
41 days during such year that the building or interest was held by each.
42 § 23. Project monitoring. The commissioner shall establish such proce-
43 dures as he deems necessary for monitoring compliance of an eligible
44 low-income building with the provisions of this article, and for notify-
45 ing the commissioner of taxation and finance of any such noncompliance
46 of which he becomes aware.
47 § 24. Credit recapture. If, as of the close of any taxable year in the
48 compliance period, the amount of the qualified basis of any building
49 with respect to the taxpayer is less than the amount of such basis as of
50 the close of the preceding taxable year, the credit under this article
51 may be recaptured as provided in section eighteen of the tax law.
52 § 25. Regulations, coordination with federal low-income housing credit
53 provisions. 1. The commissioner shall promulgate rules and regulations
54 necessary to administer the provisions of this act.
55 2. The provisions of section 42 of the internal revenue code shall
56 apply to the credit under this article, provided however, to the extent
S. 6295 78 A. 9295
1 such provisions are inconsistent with this article, the provisions of
2 this article shall control.
3 § 2. The tax law is amended by adding a new section 18 to read as
4 follows:
5 § 18. Low-income housing credit. (a) Allowance of credit. A taxpayer
6 subject to tax under article nine-A, twenty-two, thirty-two or thirty-
7 three of this chapter shall be allowed a credit against such tax, pursu-
8 ant to the provisions referenced in subdivision (d) of this section,
9 with respect to the ownership of eligible low-income buildings for which
10 an eligibility statement has been issued by the commissioner of housing
11 and community renewal. The amount of the credit shall be the credit
12 amount for each such building allocated by such commissioner as provided
13 in article two-A of the public housing law. The credit amount shall be
14 allowed for each of the ten taxable years in the credit period, and any
15 reduction in first-year credit as provided in subdivision two of section
16 twenty-two of such law shall be allowed in the eleventh taxable year.
17 (b) Credit recapture. (1) General. If,
18 (A) as of the close of any taxable year in the compliance period, the
19 amount of the qualified basis of any building with respect to the
20 taxpayer is less than
21 (B) the amount of such basis as of the close of the preceding taxable
22 year,
23 (C) then the credit recapture amount must be added back for the taxa-
24 ble year.
25 (2) Credit recapture amount. The credit recapture amount is an amount
26 equal to the sum of
27 (A) the aggregate decrease in the credits allowed to the taxpayer
28 under this section for all prior taxable years which would have resulted
29 if the accelerated portion of the credit allowable by reason of this
30 section were not allowed for all prior taxable years with respect to the
31 excess of the amount described in subparagraph (B) of paragraph (1) of
32 this subdivision over the amount described in subparagraph (A) of such
33 paragraph, plus
34 (B) interest at the overpayment rate established under section one
35 thousand ninety-six of this chapter on the amount determined under
36 subparagraph (A) of this paragraph for each prior taxable year for the
37 period beginning on the due date for filing the report for the prior
38 taxable year involved.
39 (3) Accelerated portion of credit. For purposes of paragraph two of
40 this subdivision, the accelerated portion of the credit for the prior
41 taxable years with respect to any amount of basis is the excess of
42 (A) the aggregate credit allowed by reason of this section (without
43 regard to this subdivision) for such years with respect to such basis,
44 over
45 (B) the aggregate credit which would be allowable by reason of this
46 section for such years with respect to such basis if the aggregate cred-
47 it which would (but for this subdivision) have been allowed for the
48 entire compliance period were allowable ratably over fifteen years.
49 (4) Special rules. For purposes of this subdivision, the rules of
50 section 42 (j)(4)(B) and (C) of the internal revenue code shall apply in
51 determining the credit recapture amount.
52 (5) Exceptions to recapture. Recapture under this subdivision shall
53 not apply to a reduction in qualified basis
54 (A) by reason of a casualty loss, if the commissioner, in consultation
55 with the commissioner of housing and community renewal, determines that
S. 6295 79 A. 9295
1 such loss is restored by reconstruction or replacement within a reason-
2 able period, or
3 (B) by reason of a change in floor space devoted to low-income units
4 in a building, if such building remains an eligible low-income building
5 after such change, and if the commissioner, in consultation with the
6 commissioner of housing and community renewal, determines that such
7 change is de minimis, or
8 (C) by reason of error in complying with low-income eligibility tests
9 referred to in subdivision five of section twenty-one of the public
10 housing law, if the commissioner, in consultation with the commissioner
11 of housing and community renewal, determines that such error is de
12 minimis.
13 (6) Recapture by partners of a partnership. In the case of ownership
14 of a building or interest therein by a partnership which has thirty-five
15 or more partners, the provisions of section 42(j)(5) of the internal
16 revenue code shall apply to any recapture under this subdivision unless
17 the partnership elects not to have such provisions apply.
18 (7) Bond in lieu of recapture. In the case of a disposition of a
19 building or an interest therein, the taxpayer shall be discharged from
20 liability for any recapture under this subdivision by reason of such
21 disposition if the taxpayer furnishes to the commissioner a bond or
22 other security acceptable to the commissioner in an amount satisfactory
23 to the commissioner and for the period required by the commissioner, and
24 it is reasonably expected that such building will continue to be oper-
25 ated as an eligible low-income building for the remaining compliance
26 period with respect to such building.
27 (c) Construction with public housing law; definitions. The provisions
28 of this section shall be construed in conjunction with the provisions of
29 article two-A of the public housing law. For definitions relating to the
30 low-income housing credit, see section twenty-one of such law.
31 (d) Cross-references. For application of the credit provided for in
32 this section, see the following provisions of this chapter:
33 (1) Article 9-A: Section 210: subdivision 30,
34 (2) Article 22: Section 606: subsections (i) and (x),
35 (3) Article 32: Section 1456: subsection (l),
36 (4) Article 33: Section 1511: subdivision (n).
37 § 3. Section 210 of the tax law is amended by adding a new subdivi-
38 sion 30 to read as follows:
39 30. Low-income housing credit. (a) Allowance of credit. A taxpayer
40 shall be allowed a credit against the tax imposed by this article with
41 respect to the ownership of eligible low-income buildings, computed as
42 provided in section eighteen of this chapter.
43 (b) Application of credit. The credit and carryovers of such credit
44 allowed under this subdivision for any taxable year shall not, in the
45 aggregate, reduce the tax due for such year to less than the higher of
46 the amounts prescribed in paragraphs (c) and (d) of subdivision one of
47 this section. However, if the amount of credit or carryovers or such
48 credit, or both, allowed under this subdivision for any taxable year
49 reduces the tax to such amount, any amount of credit or carryovers of
50 such credit thus not deductible in such taxable year may be carried over
51 to the following year or years and may be deducted from the tax for such
52 year or years.
53 (c) Credit recapture. For provisions requiring recapture of credit,
54 see subdivision (b) of section eighteen of this chapter.
S. 6295 80 A. 9295
1 § 4. Paragraph 1 of subsection (i) of section 606 of the tax law, as
2 amended by section 2 of part J of chapter 407 of the laws of 1999, is
3 amended to read as follows:
4 (1) For purposes of determining the application under this section of
5 the credit provisions enumerated in the following table, a shareholder
6 of a New York S corporation:
7 (A) shall be treated as the taxpayer with respect to his or her pro
8 rata share of the corresponding credit base of such corporation, deter-
9 mined for the corporation's taxable year ending with or within the
10 shareholder's taxable year and
11 (B) shall be treated as the owner of a new business with respect to
12 such share if the corporation qualifies as a new business pursuant to
13 paragraph (j) of subdivision twelve of section two hundred ten of this
14 chapter, unless the shareholder has previously received a refund by
15 reason of the application of this subparagraph, or this subsection as it
16 was in effect for taxable years beginning before nineteen hundred nine-
17 ty-four.
18 The corporation's
19 With respect to the credit base under
20 following credit section two hundred ten
21 under this section: or section fourteen
22 hundred fifty-six of this
23 chapter is:
24 Investment tax credit Investment credit base
25 under subsection (a) or qualified
26 rehabilitation
27 expenditures under
28 subdivision twelve of
29 section two hundred ten
30 Economic development Cost or other basis
31 zone investment tax credit under subdivision
32 under subsection (j) twelve-B
33 of section two hundred
34 ten
35 Economic development Eligible wages under
36 zone wage tax credit subdivision nineteen of
37 under subsection (k) section two hundred ten
38 or subsection (e) of
39 section fourteen hundred
40 fifty-six
41 Economic development zone Qualified investments
42 capital tax credit and contributions under
43 under subsection (1) subdivision twenty of
44 section two hundred ten
45 or subsection (d) of
46 section fourteen hundred
47 fifty-six
48 Agricultural property tax Allowable school
49 credit under subsection (n) district property taxes under
50 subdivision twenty-two of
S. 6295 81 A. 9295
1 section two hundred ten
2 Credit for employment Qualified first-year wages or
3 of persons with dis- qualified second-year wages
4 abilities under under subdivision twenty-three
5 subsection (o) of section two hundred ten or
6 subsection (f) of section
7 fourteen hundred fifty-six
8 Employment incentive Applicable investment credit
9 credit under subsection base under subdivision
10 (a-1) twelve-D
11 Economic development Applicable investment
12 zone employment incentive credit under subdivision
13 credit under subsection (j-1) twelve-C
14 Alternative fuels credit Cost under subdivision
15 under subsection (p) twenty-four
16 Qualified emerging technology Applicable credit base under
17 company employment credit subdivision twelve-E of
18 subsection (q) section two hundred ten
19 Qualified emerging technology company Qualified investments under
20 capital tax credit under subdivision twelve-F of
21 subsection (r) section two hundred ten
22 Credit for purchase of an Cost of an automated external
23 automated external defibrillator under
24 defibrillator under subdivision twenty-five of
25 subsection (s) section two hundred ten or
26 subsection (j) of section
27 fourteen hundred fifty-six
28 Low-income housing Credit amount under
29 credit under subsection (x) subdivision thirty
30 of section two hundred ten or
31 subsection (l) of section
32 fourteen hundred fifty-six
33 § 5. Section 606 of the tax law is amended by adding a new subsection
34 (x) to read as follows:
35 (x) Low-income housing credit. (1) Allowance of credit. A taxpayer
36 shall be allowed a credit against the tax imposed by this article with
37 respect to the ownership of eligible low-income buildings, computed as
38 provided in section eighteen of this chapter.
39 (2) Application of credit. If the amount of credit allowable under
40 this subsection for any taxable year shall exceed the taxpayer's tax for
41 such year, the excess may be carried over to the following year or
42 years, and may be deducted from the taxpayer's tax for such year or
43 years.
44 (3) Credit recapture. For provisions requiring recapture of credit,
45 see subdivision (b) of section eighteen of this chapter.
46 § 6. Section 1456 of the tax law is amended by adding a new subsection
47 (l) to read as follows:
S. 6295 82 A. 9295
1 (l) Low-income housing credit. (1) Allowance of credit. A taxpayer
2 shall be allowed a credit against the tax imposed by this article with
3 respect to the ownership of eligible low-income buildings, computed as
4 provided in section eighteen of this chapter.
5 (2) Application of credit. The credit and carryovers of such credit
6 allowed under this subsection for any taxable year shall not, in the
7 aggregate, reduce the tax due for such year to less than the minimum tax
8 fixed by subsection (b) of section fourteen hundred fifty-five of this
9 article. However, if the amount of credit or carryovers of such credit,
10 or both, allowed under this subsection for any taxable year reduces the
11 tax to such amount, then any amount of credit or carryovers of such
12 credit thus not deductible in such taxable year may be carried over to
13 the following year or years and may be deducted from the taxpayer's tax
14 for such year or years.
15 (3) Credit recapture. For provisions requiring recapture of credit,
16 see subdivision (b) of section eighteen of this chapter.
17 § 7. Section 1511 of the tax law is amended by adding a new subdivi-
18 sion (n) to read as follows:
19 (n) Low-income housing credit. (1) Allowance of credit. A taxpayer
20 shall be allowed a credit against the tax imposed by this article with
21 respect to the ownership of eligible low-income buildings, computed as
22 provided in section eighteen of this chapter.
23 (2) Application of credit. The credit and carryovers of such credit
24 allowed under this subdivision for any taxable year shall not, in the
25 aggregate, reduce the tax due for such year to less than the minimum tax
26 fixed by paragraph four of subdivision (a) of section fifteen hundred
27 two of this article. However, if the amount of credit or carryovers of
28 such credit, or both, allowed under this subdivision for any taxable
29 year reduces the tax to such amount, then any amount of credit or carry-
30 overs of such credit thus not deductible in such taxable year may be
31 carried over to the following year or years and may be deducted from the
32 taxpayer's tax for such year or years.
33 (3) Credit recapture. For provisions requiring recapture of credit,
34 see subdivision (b) of section eighteen of this chapter.
35 § 8. This act shall take effect immediately.
36 PART L
37 Section 1. Paragraph (e) of subdivision 12 of section 210 of the tax
38 law, as amended by section 9 of part M of chapter 407 of the laws of
39 1999, is amended to read as follows:
40 (e) (1) Except as otherwise provided in this paragraph, the credit
41 allowed under this subdivision for any taxable year shall not reduce the
42 tax due for such year to less than the higher of the amounts prescribed
43 in paragraphs (c) and (d) of subdivision one of this section. However,
44 if the amount of credit allowable under this subdivision for any taxable
45 year reduces the tax to such amount, any amount of credit allowed for a
46 taxable year commencing prior to January first, nineteen hundred eight-
47 y-seven and not deductible in such taxable year may be carried over to
48 the following year or years and may be deducted from the taxpayer's tax
49 for such year or years but in no event shall such credit be carried over
50 to taxable years commencing on or after January first, two thousand two,
51 and any amount of credit allowed for a taxable year commencing on or
52 after January first, nineteen hundred eighty-seven and not deductible in
53 such year may be carried over to the fifteen taxable years next follow-
54 ing such taxable year and may be deducted from the taxpayer's tax for
S. 6295 83 A. 9295
1 such year or years. In lieu of such carryover, any such taxpayer which
2 qualifies as a new business under paragraph (j) of this subdivision may
3 elect to treat the amount of such carryover as an overpayment of tax to
4 be credited or refunded in accordance with the provisions of section ten
5 hundred eighty-six of this chapter, provided, however, the provisions of
6 subsection (c) of section ten hundred eighty-eight of this chapter
7 notwithstanding, no interest shall be paid thereon.
8 (2)(i) Notwithstanding the provisions of subparagraph one of this
9 paragraph, a biotechnology company, as such term is defined in clause
10 (ii) of this subparagraph, which does not qualify as a new business
11 under paragraph (j) of this subdivision, may elect to treat the amount
12 of such carryover referred to in subparagraph one of this paragraph as
13 an overpayment of tax to be credited or refunded in accordance with the
14 provisions of section ten hundred eighty-six of this chapter. Provided,
15 however, no interest shall be paid on such refund, notwithstanding the
16 provisions of subsection (c) of section ten hundred eighty-eight of this
17 chapter.
18 (ii) For purposes of this subparagraph, the term "biotechnology compa-
19 ny" means a taxpayer satisfying the requirements set forth in items (A),
20 (B) and (C) of this clause.
21 (A) Such taxpayer is primarily engaged in the business of applying
22 technologies, such as recombinant DNA techniques, biochemistry, molecu-
23 lar and cellular biology, genetics and genetic engineering, biological
24 cell fusion techniques, and new bioprocesses, using living organisms, or
25 parts of organisms, to produce or modify products, to improve plants or
26 animals, to develop microorganisms for specific uses, to identify
27 targets for pharmaceutical development, or to transform biological
28 systems into useful processes and products or to develop microorganisms
29 for specific uses.
30 (B) Over fifty percent of the voting stock of such taxpayer is not
31 owned or controlled, directly or indirectly, by a single corporation, a
32 single partnership or a single limited liability company. For purposes
33 of this item, voting stock means shares of stock entitling the holders
34 thereof to vote for the election of directors or trustees.
35 (C) The average number of employees within the state, except general
36 executive officers, of such taxpayer during the taxable year for which
37 such refund or credit of such carryover is claimed is one hundred or
38 fewer. For purposes of this item, such average shall be computed by
39 ascertaining the number of employees within the state, except general
40 executive officers, employed by the taxpayer on the thirty-first day of
41 March, the thirtieth day of June, the thirtieth day of September and the
42 thirty-first day of December in such taxable year, by adding together
43 the number of employees ascertained on each of such dates and dividing
44 the sum so obtained by the number of such abovementioned dates occurring
45 within such taxable year. For purposes of this item, the term "employees
46 within the state, except general executive officers" shall have the same
47 meaning as it has in subparagraph three of paragraph (a) of subdivision
48 three of this section.
49 § 2. This act shall take effect immediately and apply to taxable years
50 beginning on or after January 1, 2001.
51 PART M
52 Section 1. Declaration of policy and statement of purposes. It is the
53 policy of New York state to encourage the construction, rehabilitation
54 and maintenance of buildings in this state in such a manner as to:
S. 6295 84 A. 9295
1 1. promote better environmental standards for the construction, reha-
2 bilitation and maintenance of buildings in the state;
3 2. improve energy efficiency and increase generation of energy through
4 renewable and clean energy technologies;
5 3. increase the demand for environmentally preferable building materi-
6 als, finishes and furnishings;
7 4. improve the environment by decreasing the discharge of pollutants
8 from buildings;
9 5. create industry and public awareness of new technologies that can
10 improve the quality of life for building occupants; and
11 6. improve the health and productivity of building occupants.
12 In order to facilitate the foregoing policies, the legislature hereby
13 creates a franchise and income tax credit to promote the construction,
14 rehabilitation and maintenance of buildings that meet the criteria set
15 forth in this act.
16 § 2. The tax law is amended by adding a new section 19 to read as
17 follows:
18 § 19. Green building credit. (a) Allowance of credit. (1) General.
19 (A) Green building credit. A taxpayer subject to tax under article nine,
20 nine-A, twenty-two, thirty-two or thirty-three of this chapter shall be
21 allowed a green building credit against such tax, pursuant to the
22 provisions referenced in subdivision (f) of this section. Provided,
23 however, no credit shall be allowed under this section unless the
24 taxpayer has complied with the applicable requirements of paragraph two
25 of subdivision (d) of this section (relating to reports to DEC). The
26 amount of the credit shall be the sum of the credit components specified
27 in paragraphs two through seven of this subdivision. Provided, however,
28 the amount of each such credit component shall not exceed the limit set
29 forth in the initial credit component certificate obtained pursuant to
30 subdivision (c) of this section. In the determination of such credit
31 components, no cost paid or incurred by the taxpayer shall be the basis
32 for more than one such component.
33 (B) Credit to successor owner. If a credit is allowed to a building
34 owner pursuant to this subdivision with respect to property, and such
35 property (or an interest therein) is sold, the credit for the period
36 after the sale which would have been allowable under this subdivision to
37 the prior owner had the property not been sold shall be allowable to the
38 new owner. Credit for the year of sale shall be allocated between the
39 parties on the basis of the number of days during such year that the
40 property or interest was held by each.
41 (C) Credit to successor tenant. If a credit is allowed to a tenant
42 pursuant to this subdivision with respect to property, and if such
43 tenancy is terminated but such property remains in use in the building
44 by a successor tenant, the credit for the period after such termination
45 which would have been allowable under this subdivision to the prior
46 tenant had the tenancy not been terminated shall be allowable to the
47 successor tenant. Credit for the year of termination shall be allocated
48 between the parties on the basis of the number of days during such year
49 that the property was used by each.
50 (D) Notwithstanding any other provision of law to the contrary, in the
51 case of allowance of credit under this section to a successor owner or
52 tenant, as provided in subparagraph (B) or (C) of this paragraph, the
53 commissioner shall have the authority to reveal to the successor owner
54 or tenant any information, with respect to the credit of the prior owner
55 or tenant, which is the basis for the denial in whole or in part of the
56 credit claimed by such successor owner or tenant.
S. 6295 85 A. 9295
1 (2) Green whole-building credit component. The green whole-building
2 credit component shall be equal to the applicable percentage of the
3 allowable costs paid or incurred by the taxpayer (whether owner or
4 tenant), for either the construction of a green building or the rehabil-
5 itation of a building which is not a green building to be a green build-
6 ing. Provided, however, the credit component shall not exceed the maxi-
7 mum amount specified in the initial credit component certificate. The
8 applicable percentage shall be 1.4 percent, except that if the building
9 is located in an economic development area, the applicable percentage
10 shall be 1.6 percent. The credit component amount so determined shall be
11 allowed for the credit allowance year, but only if (A) the taxpayer has
12 obtained and filed both an initial credit component certificate and an
13 eligibility certificate issued pursuant to subdivision (c) of this
14 section, (B) a certificate of occupancy for the building has been issued
15 and (C) where the credit allowance year is a year described in subpara-
16 graph (B) of paragraph two-a of subdivision (b) of this section, the
17 green building or rehabilitation remains in service during such year.
18 Such credit component amount shall be allowed also for each of the next
19 four succeeding taxable years with respect to which the taxpayer has
20 obtained and filed an eligibility certificate pursuant to subdivision
21 (c) of this section. Provided, further, the allowable costs may not
22 exceed, in the aggregate, one hundred fifty dollars per square foot with
23 respect to the portion of the building which comprises the base building
24 and seventy-five dollars per square foot with respect to the portion of
25 the building which comprises the tenant space.
26 (3) Green base building credit component. The green base building
27 credit component shall be equal to the applicable percentage of the
28 allowable costs paid or incurred by the taxpayer, if the owner, for
29 either the construction of a green base building or for the rehabili-
30 tation of a base building which is not a green base building to be a
31 green base building. Provided, however, the credit component shall not
32 exceed the maximum amount specified in the initial credit component
33 certificate. The applicable percentage shall be one percent, except
34 that if the building is located in an economic development area, the
35 applicable percentage shall be 1.2 percent. The credit component amount
36 so determined shall be allowed for the credit allowance year, but only
37 if (A) the taxpayer has obtained and filed both an initial credit compo-
38 nent certificate and an eligibility certificate issued pursuant to
39 subdivision (c) of this section, (B) a certificate of occupancy for the
40 building has been issued and (C) where the credit allowance year is a
41 year described in subparagraph (B) of paragraph two-a of subdivision (b)
42 of this section, the green base building or rehabilitation of a base
43 building remains in service during such year. Such credit component
44 amount shall be allowed also for each of the next four succeeding taxa-
45 ble years with respect to which the taxpayer has obtained and filed an
46 eligibility certificate pursuant to subdivision (c) of this section.
47 Provided, further, the allowable costs for the base building may not
48 exceed, in the aggregate, one hundred fifty dollars per square foot.
49 (4) Green tenant space credit component. The green tenant space credit
50 component shall be equal to the applicable percentage of allowable costs
51 for tenant improvements paid or incurred by the taxpayer (whether owner
52 or tenant) in constructing (including completing) tenant space, or reha-
53 bilitating tenant space which is not green tenant space to be green
54 tenant space. Provided, however, the credit component shall not exceed
55 the maximum amount specified in the initial credit component certif-
56 icate. The applicable percentage shall be one percent, except that if
S. 6295 86 A. 9295
1 the building is located in an economic development area the applicable
2 percentage shall be 1.2 percent. Provided, however, that the owner, or a
3 tenant who occupies fewer than ten thousand square feet, shall qualify
4 for such green tenant space credit component only in the event that the
5 base building is a green base building. The credit component amount so
6 determined shall be allowed for the credit allowance year, but only if
7 (A) the taxpayer has obtained and filed an initial credit component
8 certificate and an eligibility certificate issued pursuant to subdivi-
9 sion (c) of this section and (B) where the credit allowance year is a
10 year described in subparagraph (B) of paragraph two-a of subdivision (b)
11 of this section, the construction, completion or rehabilitation remains
12 in service during such year. Such credit component amount shall be
13 allowed also for each of the next four succeeding taxable years with
14 respect to which the taxpayer has obtained and filed an eligibility
15 certificate pursuant to subdivision (c) of this section. Provided,
16 however, the allowable costs for tenant space shall not exceed, in the
17 aggregate, seventy-five dollars per square foot. In the event that both
18 an owner and tenant incur such costs for tenant space with respect to
19 the same tenant space and such costs in the aggregate exceed seventy-
20 five dollars per square foot, the owner shall have priority as to costs
21 constituting the basis for the green tenant space credit component.
22 (5) Fuel cell credit component. A fuel cell credit component shall be
23 allowed for the installation of a fuel cell which is a qualifying alter-
24 nate energy source, installed to serve a green building, green base
25 building or green tenant space. The amount of the credit component shall
26 be six percent of the sum of the capitalized costs paid or incurred by
27 the taxpayer with respect to each fuel cell installed to serve such
28 building or space, including the cost of the foundation or platform and
29 the labor cost associated with installation, such capitalized costs not
30 to exceed one thousand dollars per kilowatt of installed DC rated capac-
31 ity. Provided, however, the credit component shall not exceed the maxi-
32 mum amount specified in the initial credit component certificate. The
33 fuel cell credit component amount so determined shall be allowed for the
34 credit allowance year, but only if (A) the taxpayer has obtained and
35 filed an initial credit component certificate and an eligibility certif-
36 icate issued pursuant to subdivision (c) of this section and (B) where
37 the credit allowance year is a year described in subparagraph (B) of
38 paragraph two-a of subdivision (b) of this section, the fuel cell
39 remains in service during such year. Such credit component amount shall
40 be allowed also with respect to each of the four taxable years next
41 following during which the fuel cell remains in service. Provided,
42 however, that the amount of any federal, state or local grant received
43 by the taxpayer and used for the purchase and/or installation of such
44 fuel cell and which was not included in the federal gross income of the
45 taxpayer shall be subtracted from the amount of such cost.
46 (6) Photovoltaic module credit component. A photovoltaic module credit
47 component shall be allowed for the installation of photovoltaic modules
48 which constitute a qualifying alternate energy source installed to serve
49 a green building, green base building or green tenant space. The amount
50 of the credit component shall be twenty percent of the incremental cost
51 paid or incurred by the taxpayer for building-integrated photovoltaic
52 modules and five percent of the cost of non-building-integrated photo-
53 voltaic modules, in either case such cost not to exceed the product of
54 (i) three dollars and (ii) the number of watts included in the DC rated
55 capacity of the photovoltaic modules. Provided, however, the credit
56 component shall not exceed the maximum amount specified in the initial
S. 6295 87 A. 9295
1 credit component certificate. The credit component amount so determined
2 shall be allowed for the credit allowance year, but only if (A) the
3 taxpayer has obtained and filed an initial credit component certificate
4 and an eligibility certificate issued pursuant to subdivision (c) of
5 this section and (B) where the credit allowance year is a year described
6 in subparagraph (B) of paragraph two-a of subdivision (b) of this
7 section, the modules remain in service during such year. Such credit
8 amount shall be allowed also for the four taxable years next following
9 during which the modules remain in service. Provided, however, that the
10 amount of any federal, state or local grant received by the taxpayer and
11 used for the purchase and/or installation of such photovoltaic equipment
12 and which was not included in the federal gross income of the taxpayer
13 shall be subtracted from the amount of such cost.
14 (7) Non-ozone depleting refrigerant component. A non-ozone depleting
15 refrigerant component shall be allowed for new air conditioning equip-
16 ment (including chillers and absorption chillers, water or air cooled
17 unitary equipment, water-cooled heat pumps, packaged terminal heat
18 pumps, air conditioners, and other similar air conditioning equipment)
19 that uses an EPA-approved non-ozone depleting refrigerant installed to
20 serve a green building, green base building or green tenant space. The
21 amount of the credit component shall be two percent of the cost of such
22 air conditioning equipment. Provided, however, the credit component
23 shall not exceed the maximum amount specified in the initial credit
24 component certificate. The non-ozone depleting refrigerant component
25 amount so determined shall be allowed for the credit allowance year,
26 but only if (A) the taxpayer has obtained and filed an initial credit
27 component certificate and an eligibility certificate issued pursuant to
28 subdivision (c) of this section, and (B) where the credit allowance year
29 is a year described in subparagraph (B) of paragraph two-a of subdivi-
30 sion (b) of this section, the air conditioning equipment remains in
31 service. Such credit component amount shall be allowed also with respect
32 to each of the four taxable years next following during which the air
33 conditioning equipment remains in service.
34 (b) Definitions. As used in this section, the following terms shall
35 have the following meanings:
36 (1) "Allowable costs" means amounts properly chargeable to capital
37 account (other than for land), which are paid or incurred on or after
38 June first, nineteen hundred ninety-nine, for: construction or rehabil-
39 itation; commissioning costs; interest paid or incurred during the
40 construction or rehabilitation period; legal, architectural, engineering
41 and other professional fees allocable to construction or rehabilitation;
42 closing costs for construction, rehabilitation or mortgage loans;
43 recording taxes and filing fees incurred with respect to construction or
44 rehabilitation; site costs (such as temporary electric wiring, scaffold-
45 ing, demolition costs, and fencing and security facilities); and costs
46 of furniture, carpeting, partitions, walls and wall coverings, ceilings,
47 drapes, blinds, lighting, plumbing, electrical wiring and ventilation;
48 provided that such costs shall not include the cost of telephone systems
49 and computers (other than electrical wiring costs) and shall not include
50 the cost of fuel cells or photovoltaic modules (including installation)
51 or the cost of new air conditioning equipment using an EPA-approved
52 non-ozone depleting refrigerant (excluding installation).
53 (2) "Base building" means all areas of a building not intended for
54 occupancy by a tenant or owner, including but not limited to the struc-
55 tural components of the building, exterior walls, floors, windows,
56 roofs, foundations, chimneys and stacks, parking areas, mechanical rooms
S. 6295 88 A. 9295
1 and mechanical systems, and owner-controlled and/or operated service
2 spaces, sidewalks, main lobby, shafts and vertical transportation mech-
3 anisms, stairways and corridors.
4 (2-a) "Credit allowance year" means the later of (A) the taxable year
5 during which the property, construction, completion or rehabilitation
6 referred to in paragraphs two through seven of subdivision (a) of this
7 section has been placed in service or (B) the first taxable year with
8 respect to which the credit may be claimed pursuant to the initial cred-
9 it component certificate issued pursuant to subdivision (c) of this
10 section.
11 (3) "Commissioning" means the testing and fine-tuning of heat, venti-
12 lating and air conditioning and other systems to assure proper function-
13 ing and adherence to design criteria and the preparation of system oper-
14 ation manuals and instruction of maintenance personnel.
15 (4) "DEC" means the New York state department of environmental conser-
16 vation. "DOH" means the New York state department of health. "EPA" means
17 the United States environmental protection agency.
18 (5) "Economic development area" means an area which is designated (A)
19 an economic development zone pursuant to article eighteen-B of the
20 general municipal law or (B) an empowerment zone or enterprise community
21 pursuant to section 1391 of the Internal Revenue Code.
22 (6) "Eligible building" means a building located in this state which
23 is :
24 (A) classified B2, B3, B4, C1, C2, C5, or C6 for purposes of the New
25 York state uniform fire prevention and building code or similarly clas-
26 sified under any subsequent code; provided that any such building
27 contains at least twenty thousand square feet of interior space, or
28 (B) a residential multi-family building with at least twelve dwelling
29 units that contain at least twenty thousand square feet of interior
30 space, or
31 (C) one or more residential multi-family buildings with at least two
32 dwelling units that are part of a single or phased construction project
33 that contains, in the aggregate, at least twenty thousand square feet of
34 interior space; provided that in any single phase of such project at
35 least ten thousand square feet of interior space is under construction
36 or rehabilitation, or
37 (D) any combination of buildings described in subparagraphs (A), (B)
38 and (C) of this paragraph, and
39 (E) is not a building placed in service on or after January first, two
40 thousand one on freshwater wetlands or tidal wetlands the construction
41 of which requires a permit under section 24-0701 or 25-0403, respective-
42 ly, of the environmental conservation law, or on wetlands such that the
43 construction thereof requires a permit pursuant to section 404 of the
44 federal clean water act (33 U.S.C. § 1344).
45 (7) "Energy code" means the New York state energy conservation
46 construction code.
47 (8) "Fuel cell" means a device that produces electricity directly from
48 hydrogen or hydrocarbon fuel through a non-combustive electro-chemical
49 process.
50 (9) "Green base building" means a base building which is part of an
51 eligible building and which meets the following standards:
52 (A) Energy and energy efficiency. (i) Energy use is no more than
53 sixty-five percent (in the case of new construction of a base building)
54 or seventy-five percent (in the case of rehabilitation of a base build-
55 ing) of the use permitted under the energy code or, in the event such
56 standard is revised or superseded, energy use shall meet such other
S. 6295 89 A. 9295
1 energy efficiency standards that DEC, in consultation with NYSERDA,
2 shall establish in regulations promulgated pursuant to paragraph one of
3 subdivision (e) of this section, in effect at the time the base building
4 or rehabilitation thereof is placed in service.
5 (ii) All appliances and any heating, cooling and water heating equip-
6 ment used in the base building and subject to the regulations promulgat-
7 ed by DEC, in consultation with NYSERDA, pursuant to paragraph one of
8 subdivision (e) of this section, shall meet the standards established by
9 such regulations in effect at the time the base building or rehabili-
10 tation thereof is placed in service.
11 (B) Zoning, indoor air quality, building materials, finishes and
12 furnishings. (i) The base building shall comply with all applicable
13 zoning, land use and erosion control requirements, stormwater management
14 ordinances, building code requirements and environmental regulations. In
15 the case of the rehabilitation of an existing building, all existing
16 environmental hazards shall be identified and managed in accordance with
17 applicable laws, regulations and industry guidelines.
18 (ii) Buildings classified B2, B3, B4, C1, C2, C5, or C6, for purposes
19 of the New York state uniform fire prevention and building code, or
20 similarly classified under any subsequent code, shall meet the following
21 indoor air quality requirements:
22 (I) ventilation and exchange of indoor/outdoor air shall meet the
23 standards established by regulations promulgated by DEC, in consultation
24 with DOH and NYSERDA, pursuant to paragraph two of subdivision (e) of
25 this section;
26 (II) if smoking is permitted in specific areas of the building, sepa-
27 rate air ventilation and circulation shall be provided for smoking and
28 non-smoking areas;
29 (III) the ventilation system shall include an air purging system that
30 is capable of replacing one hundred percent of the air on any floor, on
31 a minimum of two floors at a time. The air shall be purged for a period
32 of one week on every floor immediately prior to initial occupancy and on
33 any floor that undergoes renovation immediately prior to re-occupancy;
34 provided that, if a taxpayer obtains certification from a licensed
35 architect, engineer, certified industrial hygienist, or other licensed
36 or certified professional whom the commissioner of environmental conser-
37 vation shall approve, pursuant to regulations, verifying that off-gass-
38 ing and any other contamination can be reduced to comparable levels in
39 less than one week, the period of purging may be shortened. The taxpayer
40 shall maintain a copy of such certification in accordance with the
41 provisions of subdivision (d) of this section.
42 (C) Building fresh air intake shall be located a minimum of twenty-
43 five feet away from loading areas, building exhaust fans, cooling towers
44 and other point sources of contamination.
45 (D) During construction or rehabilitation, the ventilation system
46 components and pathways shall be protected from contamination in accord-
47 ance with an indoor air quality management plan for the construction or
48 rehabilitation process that meets the standards established in regu-
49 lations promulgated by DEC, in consultation with DOH and NYSERDA, pursu-
50 ant to paragraph two of subdivision (e) of this section. In the event
51 that such areas are not protected from contamination in accordance with
52 such standards, they shall be cleaned prior to occupancy.
53 (E) A licensed engineer, certified industrial hygienist, or other
54 licensed or certified professional whom the commissioner of environ-
55 mental conservation shall approve, pursuant to regulations, shall
56 conduct indoor air quality testing with respect to the entire building
S. 6295 90 A. 9295
1 immediately following occupancy, if any, and on an annual basis, to
2 monitor supply and return air and ambient air for carbon monoxide,
3 carbon dioxide, total volatile organic compounds, radon, and particulate
4 matter. Provided, however, once radon measurements have been found to
5 be satisfactory, subsequent annual testing is not required. The taxpay-
6 er shall record baseline readings immediately following occupancy, if
7 any, and annually thereafter. In the event that the taxpayer does not
8 establish that during a taxable year during which any part of the build-
9 ing is occupied, indoor air quality met the standards established in
10 regulations promulgated by DEC, in consultation with DOH and NYSERDA,
11 pursuant to paragraph two of subdivision (e) of this section, the base
12 building shall not constitute a green base building.
13 (F) The mechanical plant of the building shall be commissioned in
14 accordance with the standards established in regulations promulgated by
15 DEC, in consultation with NYSERDA, pursuant to subparagraph (D) of para-
16 graph one of subdivision (e) of this section, which standards shall be
17 informed by documents such as ASHRAE G-1 and the United States general
18 services administration "Model Commissioning Plan and Guide Specifica-
19 tions". For purposes of this subparagraph the term "ASHRAE" means the
20 American society of heating, refrigerating and air conditioning engi-
21 neers.
22 (G) Separate waste disposal chutes or a carousel compactor system for
23 recyclable materials shall be provided for the recycling of waste by
24 occupants, or recycling shall be otherwise facilitated by, at a minimum,
25 providing a readily accessible designated collection area or areas with
26 sufficient space to store recyclable materials separately between
27 collection dates.
28 (H) All plumbing fixtures in the public areas of the building shall
29 meet the plumbing fixture requirements of the energy policy act of 1992
30 or any successor provision in effect at the time the building or reha-
31 bilitation is placed in service.
32 (I) Prior to initial occupancy and upon request, the owner of the
33 building shall provide each tenant with (1) written notification of the
34 opportunity to apply for a tax credit pursuant to this section and (2)
35 written guidelines regarding opportunities to improve the energy effi-
36 ciency and air quality of tenant space and to reduce and recycle waste
37 streams.
38 (J) All building materials, finishes and furnishings used in the base
39 building and subject to the regulations promulgated by DEC, in consulta-
40 tion with NYSERDA, pursuant to subparagraph (A) of paragraph three of
41 subdivision (e) of this section, shall meet the standards established by
42 such regulations in effect at the time the building or rehabilitation is
43 placed in service; provided further that with respect to furnishings,
44 this requirement shall apply only to newly purchased items.
45 (K) All tenant space in the building occupied by the owner must be
46 green tenant space.
47 (10) "Green building" means a building wherein the base building is a
48 green base building and all tenant space is green tenant space.
49 (11) "Green tenant space" means tenant space in a building if such
50 building is an eligible building and if such tenant space complies with
51 the following requirements:
52 (A) Energy and energy efficiency. (i) Energy use for tenant space is
53 no more than sixty-five percent (in the case of new construction) or
54 seventy-five percent (in the case of rehabilitation) of the use permit-
55 ted under the energy code or, in the event such standard is revised or
56 superseded, energy use shall meet such other energy efficiency standards
S. 6295 91 A. 9295
1 that DEC, in consultation with NYSERDA, shall establish in regulations
2 promulgated pursuant to paragraph one of subdivision (e) of this
3 section, in effect at the time the improvements with respect to which a
4 tax credit is claimed are placed in service.
5 (ii) All appliances and any heating, cooling and water heating equip-
6 ment used in the tenant space and subject to the regulations promulgated
7 by DEC, in consultation with NYSERDA, pursuant to paragraph one of
8 subdivision (e) of this section shall meet the standards established by
9 such regulations or, in the event that such standards are revised, the
10 standards in effect at the time the improvements with respect to which a
11 tax credit is claimed are placed in service.
12 (B) Code requirements, indoor air quality, building materials,
13 finishes and furnishings. (i) The tenant space shall comply with all
14 applicable building code requirements and environmental regulations and,
15 with respect to projects other than new construction, all existing envi-
16 ronmental hazards shall be identified and managed in accordance with
17 applicable laws, regulations and industry guidelines.
18 (ii) In the case of buildings classified B2, B3, B4, C1, C2, C5, or
19 C6, for purposes of the New York state uniform fire prevention and
20 building code, or similarly classified under any subsequent code, venti-
21 lation and exchange of indoor/outdoor air shall meet the standards
22 established in regulations promulgated by DEC, in consultation with DOH
23 and NYSERDA, pursuant to paragraph two of subdivision (e) of this
24 section.
25 (iii) For buildings in which smoking is permitted, the taxpayer shall
26 ensure that, if smoking is permitted in the tenant space, it is permit-
27 ted only in areas in which the air ventilation and circulation is sepa-
28 rate from that for non-smoking areas.
29 (iv) During construction or rehabilitation, the ventilation system
30 components and pathways shall be protected from contamination in accord-
31 ance with an indoor air quality management plan for the construction or
32 rehabilitation process that meets the standards established in regu-
33 lations promulgated by DEC, in consultation with DOH and NYSERDA, pursu-
34 ant to paragraph two of subdivision (e) of this section. In the event
35 that such areas are not protected from contamination in accordance with
36 such standards, they shall be cleaned prior to occupancy.
37 (v) A licensed engineer, certified industrial hygienist, or other
38 licensed or certified professional whom the commissioner of environ-
39 mental conservation shall approve, pursuant to regulations, shall
40 conduct indoor air quality testing with respect to the tenant space
41 immediately following occupancy, if any, and on an annual basis, to
42 monitor supply and return air and ambient air for carbon monoxide,
43 carbon dioxide, total volatile organic compounds, radon, and particulate
44 matter. Provided, however, once radon measurements have been found to
45 be satisfactory, subsequent annual testing is not required. The taxpay-
46 er shall record baseline readings immediately following occupancy, if
47 any, and annually thereafter. In the event that the taxpayer does not
48 establish that during a taxable year during which the tenant space is
49 occupied, indoor air quality met the standards established in regu-
50 lations promulgated by DEC, in consultation with DOH and NYSERDA, pursu-
51 ant to paragraph two of subdivision (e) of this section, the tenant
52 space shall not constitute green tenant space.
53 (vi) All plumbing fixtures in the tenant space shall meet the plumbing
54 fixture requirements of the energy policy act of 1992 or successor
55 provision in effect at the time the improvements with respect to which a
56 tax credit is claimed are placed in service.
S. 6295 92 A. 9295
1 (vii) All building materials, finishes and furnishings selected for
2 use in the tenant space and subject to the regulations promulgated by
3 DEC, in consultation with NYSERDA, pursuant to subparagraph (A) of para-
4 graph three of subdivision (e) of this section, shall meet the standards
5 established by such regulations or, in the event that such standards are
6 revised, the standards in effect at the time the improvements with
7 respect to which a tax credit is claimed are placed in service, provided
8 that, with respect to furnishings, this requirement shall apply only to
9 newly purchased items.
10 (12) "Incremental cost of building-integrated photovoltaic modules"
11 means:
12 (A) the cost of building-integrated photovoltaic modules and any asso-
13 ciated inverter, additional wiring or other electrical equipment or
14 additional mounting or structural materials, less the cost of spandrel
15 glass or other building material that would have been used in the event
16 that building-integrated photovoltaic modules were not installed,
17 (B) incremental labor costs properly allocable to on-site preparation,
18 assembly and original installation of photovoltaic modules, and
19 (C) incremental architectural and engineering services and designs and
20 plans directly related to the construction or installation of photovol-
21 taic modules.
22 (13) "NYSERDA" means the New York state energy research and develop-
23 ment authority.
24 (14) "Qualifying alternate energy sources" means building-integrated
25 and non-building-integrated photovoltaic modules and fuel cells
26 installed to serve the base building or tenant space which have the
27 capability to monitor their AC output, and which are validated upon
28 installation, and annually thereafter, to ensure that such systems meet
29 their design specifications.
30 (15) "Tenant improvements" means improvements which are necessary or
31 appropriate to support or conduct the business of a tenant or occupying
32 owner.
33 (16) "Tenant space" means the portion of a building intended for occu-
34 pancy by a tenant or occupying owner.
35 (c) Certifications. (1) Initial credit component certificate. Upon
36 application by a taxpayer, DEC shall issue an initial credit component
37 certificate where the taxpayer has made a showing that the taxpayer is
38 likely within a reasonable time to place in service property which would
39 warrant the allowance of a credit under this section. Such certificate
40 shall state the first taxable year for which the credit may be claimed
41 and an expiration date, and shall apply only to property placed in
42 service by such expiration date. Such expiration date may be extended at
43 the discretion of DEC, in order to avoid unwarranted hardship. Such
44 certificates may be issued in years 2000-2004. Such certificates shall
45 state the maximum amount of credit component allowable for each of the
46 five taxable years for which the credit component is allowed, under
47 paragraphs two through seven of subdivision (a) of this section. Such
48 certificates shall not be issued, in the aggregate, for more than twen-
49 ty-five million dollars worth of credit components. In addition, such
50 certificates shall be limited in their applicability, as follows:
51 Credit components in the aggregate With respect to taxable
52 shall not be allowed for more than: years beginning in:
53 $ 1 million 2001
54 $ 2 million 2002
S. 6295 93 A. 9295
1 $ 3 million 2003
2 $ 4 million 2004
3 $ 5 million 2005
4 $ 4 million 2006
5 $ 3 million 2007
6 $ 2 million 2008
7 $ 1 million 2009
8 Provided, however, that if as of the end of a calendar year, certif-
9 icates for credit component amounts totalling less than the amount
10 permitted with respect to taxable years commencing in such calendar year
11 have been issued, then the amount permitted with respect to taxable
12 years commencing in the subsequent calendar year shall be augmented by
13 the amount of such shortfall.
14 (2) Eligibility certificate. For each taxable year for which a taxpay-
15 er claims a credit under this section with respect to a green building,
16 green base building or green tenant space, a fuel cell, or photovoltaic
17 modules, or air conditioning equipment using an EPA-approved non-ozone
18 depleting refrigerant, the taxpayer shall obtain from an architect or
19 professional engineer licensed to practice in this state an eligibility
20 certificate. Such certificate shall consist of a certification, under
21 the seal of such architect or engineer, that the building, base building
22 or tenant space with respect to which the credit is claimed is a green
23 building, green base building or green tenant space, respectively, that
24 the fuel cell or photovoltaic modules constitute qualifying alternate
25 energy sources and that the air conditioning equipment uses an EPA-ap-
26 proved non-ozone depleting refrigerant and remains in service. Such
27 certification shall be made in accordance with the standards and guide-
28 lines in effect at the time the property which is the basis for the
29 credit was placed in service. Such certification shall set forth the
30 specific findings upon which the certification was based. The taxpayer
31 shall file such certificate, and the associated initial credit component
32 certificate, with the claim for credit and shall file duplicate copies
33 with DEC. Such certificate shall include sufficient information to iden-
34 tify each building or space, and such other information as DEC and the
35 commissioner shall prescribe.
36 (3) Wrongful certification. If DEC has reason to believe that an
37 architect or professional engineer, in making any certification under
38 this subdivision, engaged in professional misconduct, then DEC shall so
39 inform the education department.
40 (d) Other requirements; miscellaneous. (1) Record keeping. Each
41 taxpayer shall, for any taxable year for which the green building credit
42 provided for under this section is claimed, maintain records of the
43 following information:
44 (A) annual energy consumption for building, base building or tenant
45 space;
46 (B) annual results of air monitoring;
47 (C) annual confirmation that the building, base building or tenant
48 space continues to meet requirements regarding smoking areas, if
49 provided;
50 (D) tenant guidelines referred to in subparagraph (I) of paragraph
51 nine of subdivision (b) of this section, if applicable;
52 (E) all written notification of tenants and requests to remedy any
53 indoor air quality problems;
54 (F) initial and annual (by month) results of validation of performance
55 of photovoltaic modules and fuel cells; and
S. 6295 94 A. 9295
1 (G) certifications as to off-gassing and other contamination, as
2 prescribed in subclause (III) of clause (ii) of subparagraph (B) of
3 paragraph nine of subdivision (b) of this section, where applicable.
4 (2) Reporting to DEC. Each taxpayer shall also provide to DEC the
5 information described in paragraph one of this subdivision, in the form
6 and at the time prescribed by DEC, such time to be determined in consul-
7 tation with the commissioner of taxation and finance. Such information
8 shall be provided to DEC with respect to each taxable year with respect
9 to which the taxpayer claims a credit under this section.
10 (3) Regulations. The commissioner of taxation and finance, the commis-
11 sioner of environmental conservation and the commissioner of education
12 are hereby authorized to promulgate and adopt regulations necessary to
13 the implementation of this section. Such regulations shall construe the
14 provisions of this section in such a manner as to encourage the develop-
15 ment of green buildings, green base buildings and green tenant space and
16 to maintain high but commercially reasonable standards for obtaining tax
17 credits hereunder.
18 (4) Report. On or before April first, two thousand eight, the commis-
19 sioner of taxation and finance and the commissioner of DEC, jointly and
20 in consultation with NYSERDA, shall submit a written report regarding
21 the number of certifications and taxpayers claiming the credit provided
22 for under this section; the amount of the credits claimed, the geograph-
23 ical distribution of the credits claimed; and any other such available
24 information DEC may deem meaningful and appropriate. The commissioner of
25 taxation and finance and the commissioner of DEC shall ensure that the
26 information is presented and/or classified in a manner consistent with
27 the secrecy requirements of this chapter. DEC shall also make recommen-
28 dations regarding the establishment of a permanent green building tax
29 credit program. Recommendations may include methods to enhance the
30 effectiveness, simplicity or other aspects of the program. The report
31 shall be submitted to the governor, the temporary president of the
32 senate, the speaker of the assembly, the chairman of the senate finance
33 committee and the chairman of the assembly ways and means committee.
34 (e) Standards and regulations. (1) Energy standards: base buildings.
35 Within six months of the effective date of this section, DEC, in consul-
36 tation with NYSERDA, shall promulgate the following, with respect to
37 base buildings:
38 (A) regulations establishing standards for energy use for eligible
39 buildings. DEC, in consultation with NYSERDA shall review and update
40 such regulations at least every two years from the date on which such
41 regulations are promulgated.
42 (B) regulations establishing standards for appliances and heating,
43 cooling and water heating equipment that, on the effective date of this
44 section, are covered by specifications from organizations such as the
45 United States department of energy or environmental protection agency.
46 The development of such regulations shall be informed by such specifica-
47 tions. DEC, in consultation with NYSERDA shall review and update such
48 regulations at least every two years from the date on which such regu-
49 lations are promulgated.
50 (C) regulations indicating the methodology by which a taxpayer shall
51 demonstrate compliance with subparagraph (A) of paragraph nine of subdi-
52 vision (b) of this section. Such regulations shall include, at a mini-
53 mum, a requirement to conduct hourly computer modeling for one full
54 year.
55 (D) regulations establishing standards for the commissioning of build-
56 ings.
S. 6295 95 A. 9295
1 (2) Indoor air standards: base buildings. Within six months of the
2 effective date of this section, DEC, in consultation with DOH and NYSER-
3 DA, shall promulgate regulations establishing standards, with respect to
4 base buildings, for (A) ventilation and exchange of indoor/outdoor air,
5 (B) indoor air quality management plans for the construction or rehabil-
6 itation process, and (C) indoor air quality with respect to levels of
7 carbon monoxide, carbon dioxide and total volatile organic compounds,
8 radon and particulate matter.
9 (3) Standards for materials, water conservation, drainage: base
10 buildings. Within one year of the effective date of this section, DEC,
11 in consultation with NYSERDA, shall promulgate the following, with
12 regard to base buildings:
13 (A) regulations establishing standards for building materials,
14 finishes and furnishings regarding minimum percentages of recycled
15 content and renewable source material and maximum levels of toxicity and
16 volatile organic compounds and any other standards that the DEC deems
17 appropriate. Standards shall be developed for building materials,
18 finishes and furnishings, including but not limited to concrete and
19 concrete masonry units; wood and wood products; millwork substrates;
20 insulation; ceramic, ceramic/glass and cementitious tiles; ceiling tiles
21 and panels; flooring and carpet; paints, coatings, sealants and adhe-
22 sives; and furniture. The development of such standards shall be
23 informed by the LEED rating system. The DEC shall review and update such
24 regulations at least every two years from the date on which such regu-
25 lations are promulgated. For purposes of this clause, "LEED rating
26 system" means the leadership in energy and environmental design green
27 building rating system criteria being developed by the United States
28 green building council.
29 (B) regulations establishing standards for buildings located in areas
30 where water use is not metered, which regulations shall require, at a
31 minimum, that the building include one of the following features:
32 (i) a gray water system that recovers non-sewage waste water or uses
33 roof or ground storm water collection systems, or recovers ground water
34 from sump pumps;
35 (ii) for buildings with a cooling tower system, such system shall be
36 designed with delimiters to reduce drift and evaporation; or
37 (iii) for buildings with exterior plants, all such plants shall be
38 tolerant of climate, soils and natural water availability and shall not
39 receive watering from municipal potable water after a period of estab-
40 lishment is complete.
41 (C) regulations establishing standards for buildings located in areas
42 that do not have sewers or that have designated storm sewers, which
43 regulations shall require, at a minimum, that the building shall include
44 one of the following features:
45 (i) an oil grit separator or water quality pond for pretreatment of
46 runoff from any surface parking areas; or
47 (ii) at least fifty percent of nonlandscaped areas (including road-
48 ways, surface parking, plazas and pathways), if any, shall be comprised
49 of pervious paving materials.
50 (D) regulations indicating the methodology by which taxpayers shall
51 demonstrate compliance with subparagraphs (B) and (C) of paragraph nine
52 of subdivision (b) of this section.
53 (4) Energy standards: tenant space. Within six months of the effective
54 date of this section, DEC, in consultation with NYSERDA, shall promul-
55 gate regulations, with respect to tenant space, indicating the methodol-
S. 6295 96 A. 9295
1 ogy by which taxpayers shall demonstrate compliance with subparagraph
2 (A) of paragraph eleven of subdivision (b) of this section.
3 (5) Standards for indoor air quality, building materials, finishes and
4 furnishings: tenant space. Within one year of the effective date of this
5 section, DEC, in consultation with DOH and NYSERDA, shall promulgate
6 regulations, with respect to tenant space, indicating the methodology by
7 which taxpayers shall demonstrate compliance with subparagraph (B) of
8 paragraph eleven of subdivision (b) of this section.
9 (f) Cross-references. For application of the credit provided for in
10 this section, see the following provisions of this chapter:
11 (1) Article nine: Section one hundred eighty-seven-d;
12 (2) Article nine-A: Subdivision thirty-one of section two hundred ten;
13 (3) Article twenty-two: Subsections (i) and (y) of section six hundred
14 six;
15 (4) Article thirty-two: Subsection (m) of section fourteen hundred
16 fifty-six;
17 (5) Article thirty-three: Subdivision (o) of section fifteen hundred
18 eleven.
19 § 3. The tax law is amended by adding a new section 187-d to read as
20 follows:
21 § 187-d. Green building credit. 1. Allowance of credit. A taxpayer
22 shall be allowed a credit, to be computed as provided in section nine-
23 teen of this chapter, against the taxes imposed by sections one hundred
24 eighty-three, one hundred eighty-four, one hundred eighty-five and one
25 hundred eighty-six of this article. Provided, however, that the amount
26 of such credit allowable against the tax imposed by section one hundred
27 eighty-four of this article shall be the excess of the amount of such
28 credit over the amount of any credit allowed by this section against the
29 tax imposed by section one hundred eighty-three of this article.
30 2. Carryovers. In no event shall the credit under this section be
31 allowed in an amount which will reduce the tax payable to less than the
32 applicable minimum tax fixed by section one hundred eighty-three, one
33 hundred eighty-five or one hundred eighty-six of this article. If,
34 however, the amount of credit allowable under this section for any taxa-
35 ble year reduces the tax to such amount, any amount of credit not deduc-
36 tible in such taxable year may be carried over to the following year or
37 years and may be deducted from the taxpayer's tax for such year or
38 years.
39 § 4. Section 210 of the tax law is amended by adding a new subdivision
40 31 to read as follows:
41 31. Green building credit. (a) Allowance of credit. A taxpayer shall
42 be allowed a credit, to be computed as provided in section nineteen of
43 this chapter, against the tax imposed by this article.
44 (b) Carryovers. The credit and carryovers of such credit allowed under
45 this subdivision for any taxable year shall not, in the aggregate,
46 reduce the tax due for such year to less than the higher of the amounts
47 prescribed in paragraphs (c) and (d) of subdivision one of this section.
48 However, if the amount of credit or carryovers of such credit, or both,
49 allowed under this subdivision for any taxable year reduces the tax to
50 such amount, any amount of credit or carryovers of such credit thus not
51 deductible in such taxable year may be carried over to the following
52 year or years and may be deducted from the tax for such year or years.
53 § 5. Paragraph 1 of subsection (i) of section 606 of the tax law, as
54 amended by section 2 of part J of chapter 407 of the laws of 1999, is
55 amended to read as follows:
S. 6295 97 A. 9295
1 (1) For purposes of determining the application under this section of
2 the credit provisions enumerated in the following table, a shareholder
3 of a New York S corporation:
4 (A) shall be treated as the taxpayer with respect to his or her pro
5 rata share of the corresponding credit base of such corporation, deter-
6 mined for the corporation's taxable year ending with or within the
7 shareholder's taxable year and
8 (B) shall be treated as the owner of a new business with respect to
9 such share if the corporation qualifies as a new business pursuant to
10 paragraph (j) of subdivision twelve of section two hundred ten of this
11 chapter, unless the shareholder has previously received a refund by
12 reason of the application of this subparagraph, or this subsection as it
13 was in effect for taxable years beginning before nineteen hundred nine-
14 ty-four.
15 The corporation's
16 With respect to the credit base under
17 following credit section two hundred ten
18 under this section: or section fourteen
19 hundred fifty-six of this
20 chapter is:
21 Investment tax credit Investment credit base
22 under subsection (a) or qualified
23 rehabilitation
24 expenditures under
25 subdivision twelve of
26 section two hundred ten
27 Economic development Cost or other basis
28 zone investment tax credit under subdivision
29 under subsection (j) twelve-B
30 of section two hundred
31 ten
32 Economic development Eligible wages under
33 zone wage tax credit subdivision nineteen of
34 under subsection (k) section two hundred ten
35 or subsection (e) of
36 section fourteen hundred
37 fifty-six
38 Economic development zone Qualified investments
39 capital tax credit and contributions under
40 under subsection (1) subdivision twenty of
41 section two hundred ten
42 or subsection (d) of
43 section fourteen hundred
44 fifty-six
45 Agricultural property tax Allowable school
46 credit under subsection (n) district property taxes under
47 subdivision twenty-two of
48 section two hundred ten
S. 6295 98 A. 9295
1 Credit for employment Qualified first-year wages or
2 of persons with dis- qualified second-year wages
3 abilities under under subdivision
4 subsection (o) twenty-three of section
5 two hundred ten
6 or subsection (f)
7 of section fourteen
8 hundred fifty-six
9 Employment incentive Applicable investment credit
10 credit under subsec- base under subdivision
11 tion (a-1) twelve-D of section two
12 hundred ten
13 Economic develop- Applicable investment
14 ment zone employment credit under sub-
15 incentive credit under division twelve-C
16 subsection (j-1)
17 Alternative fuels credit Cost under subdivision
18 under subsection (p) twenty-four of section two
19 hundred ten
20 Qualified emerging Applicable credit base
21 technology company under subdivision twelve-E
22 employment credit of section two hundred ten
23 under subsection (q)
24 Qualified emerging Qualified investments under
25 technology company subdivision twelve-F of
26 capital tax credit section two hundred ten
27 under subsection (r)
28 Credit for purchase of an Cost of an automated
29 automated external defibrillator external defibrillator under
30 under subsection (s) subdivision twenty-five of
31 section two hundred ten
32 or subsection (j) of section
33 fourteen hundred fifty-six
34 Green building credit Amount of green building credit
35 under subsection (y) under subdivision thirty-one
36 of section two hundred ten
37 or subsection (m) of section
38 fourteen hundred fifty-six
39 § 6. Section 606 of the tax law is amended by adding a new subsection
40 (y) to read as follows:
41 (y) Green building credit. (1) Allowance of credit. A taxpayer shall
42 be allowed a credit, to be computed as provided in section nineteen of
43 this chapter, against the tax imposed by this article.
44 (2) Carryovers. If the amount of the credit and carryovers of such
45 credit allowed under this subsection for any taxable year shall exceed
46 the taxpayer's tax for such year, the excess, as well as any part of the
47 credit or carryovers of such credit, or both, may be carried over to the
48 following year or years and may be deducted from the taxpayer's tax for
49 such year or years.
S. 6295 99 A. 9295
1 § 7. Section 1456 of the tax law is amended by adding a new subsection
2 (m) to read as follows:
3 (m) Green building credit. (1) Allowance of credit. A taxpayer shall
4 be allowed a credit, to be computed as provided in section nineteen of
5 this chapter, against the tax imposed by this article.
6 (2) Carryover. The credit and carryovers of such credit allowed under
7 this subsection for any taxable year shall not, in the aggregate, reduce
8 the tax due for such year to less than the minimum tax fixed by
9 subsection (b) of section fourteen hundred fifty-five of this article.
10 However, if the amount of credit or carryovers of such credit, or both,
11 allowed under this subsection for any taxable year reduces the tax to
12 such amount, then any amount of credit or carryovers of such credit thus
13 not deductible in such taxable year may be carried over to the following
14 year or years and may be deducted from the taxpayer's tax for such year
15 or years.
16 § 8. Section 1511 of the tax law is amended by adding a new subdivi-
17 sion (o) to read as follows:
18 (o) Green building credit. (1) Allowance of credit. A taxpayer shall
19 be allowed a credit, to be computed as provided in section nineteen of
20 this chapter, against the taxes imposed by this article.
21 (2) Carryover. The credit and carryovers of such credit allowed under
22 this subdivision for any taxable year shall not, in the aggregate,
23 reduce the tax due for such year to less than the minimum fixed by para-
24 graph four of subdivision (a) of section fifteen hundred two of this
25 article. However, if the amount of credit or carryovers of such credit,
26 or both, allowed under this subdivision for any taxable year reduces the
27 tax to such amount, then any amount of credit or carryovers of such
28 credit thus not deductible in such taxable year may be carried over to
29 the following year or years and may be deducted from the taxpayer's tax
30 for such year or years.
31 § 9. Section 6509 of the education law is amended by adding a new
32 subdivision 12 to read as follows:
33 (12) In the event that the department of environmental conservation
34 has reported to the department alleged misconduct by an architect or
35 professional engineer in making a certification under section nineteen
36 of the tax law (relating to the green building tax credit) the board of
37 regents, upon a hearing, may revoke the license of such professional or
38 prescribe such other penalty as it determines to be appropriate.
39 § 10. This act shall take effect immediately and shall apply to prop-
40 erty placed in service in taxable years beginning on or after January 1,
41 2001.
42 PART N
43 Section 1. The tax law is amended by adding a new section 20 to read
44 as follows:
45 § 20. Credit for transportation improvement contributions. (a) Allow-
46 ance of credit. A taxpayer subject to tax under article nine, nine-A,
47 twenty-two, thirty-two or thirty-three of this chapter shall be allowed
48 a credit against such tax, pursuant to the provisions referenced in
49 subdivision (d) of this section. The credit shall be allowed where a
50 taxpayer has made a certified contribution of at least ten million
51 dollars to a qualified transportation improvement project in a prior
52 taxable year. The credit shall be equal to six percent of the taxpayer's
53 increased New York payroll for the taxable year. The aggregate of all
54 credit amounts allowed to the taxpayer pursuant to this section with
S. 6295 100 A. 9295
1 respect to a certified contribution shall not exceed the amount of such
2 certified contribution.
3 (b) Definitions. As used in this section, the following terms shall
4 have the following meanings:
5 (1) Certified contribution. The term "certified contribution" means a
6 contribution certified jointly by the commissioner of transportation and
7 the commissioner of economic development as a contribution to a quali-
8 fied transportation improvement project, such certification indicating
9 the date and amount of such contribution by the taxpayer. The commis-
10 sioner of transportation and the comptroller are authorized to accept,
11 hold and, notwithstanding section four of the state finance law, to
12 disburse such contributions, in the same manner as is authorized for
13 municipal contributions in section ten of the highway law.
14 (2) Qualified transportation improvement project. The term "qualified
15 transportation improvement project" means the design, development,
16 construction, and/or improvement of transportation infrastructure and
17 related facilities or systems, including, but not limited to, highways,
18 roadways, bridges, ramps or lanes; or railroad, port, aviation or mass
19 transit facilities; or ferry or marine facilities; or associated right-
20 of-way and associated connections to existing or planned transportation
21 infrastructure or facilities. A project for the design, development,
22 construction, and/or improvement of transportation infrastructure and
23 related facilities or systems shall be considered a "qualified transpor-
24 tation improvement project" under this section only if the commissioner
25 of transportation and the commissioner of economic development jointly
26 determine, in their sole discretion, that the project would promote the
27 development of employment opportunities in the state by creating more
28 than one thousand new jobs in the state, and is in the best interests of
29 the people of the state. The undertaking of said project is declared to
30 be for a public purpose, and the commissioner of transportation is
31 authorized to participate in the costs thereof.
32 (3) Increased New York payroll. The term "increased New York payroll"
33 means the excess, if any, of (A) the taxpayer's total wages, salaries
34 and other personal service compensation of employees within the state,
35 other than general executive officers (in the case of a corporation),
36 for the taxable year, over (B) the average of the taxpayer's total
37 wages, salaries and other personal service compensation of employees
38 within the state, other than general executive officers (in the case of
39 a corporation), for the taxable year in which the contribution was made
40 and for the two immediately preceding taxable years, if any. For
41 purposes of the preceding sentence, the phrase "wages, salaries and
42 other personal service compensation of employees within the state, other
43 than general executive officers" shall have the meaning ascribed thereto
44 for purposes of subparagraph three of paragraph (a) of subdivision three
45 of section two hundred ten of this chapter (relating to the wage factor
46 under article nine-A of this chapter).
47 (c) Recapture. (1) If the taxpayer has made a contribution which is
48 the basis for a credit allowed under this section, and if with respect
49 to the third full taxable year (the "test year") next following the
50 taxable year during which such contribution was made (the "contribution
51 year") the employment increase test described in paragraph three of this
52 subdivision is not met, the taxpayer shall add back the sum of the
53 amounts of such credit which have been allowed for all prior taxable
54 years, and shall be allowed no further credit under this section with
55 respect to such contribution with respect to any other taxable year.
S. 6295 101 A. 9295
1 (2) The amount required to be added back pursuant to this subdivision
2 shall be augmented by an amount equal to the product of such amount and
3 the underpayment rate of interest (without regard to compounding), set
4 by the commissioner pursuant to subsection (e) of section one thousand
5 ninety-six of this chapter, in the case of taxpayers which applied the
6 credit against tax under article nine, nine-A, thirty-two or thirty-
7 three, or pursuant to subsection (j) of section six hundred ninety-seven
8 of this chapter, in the case of taxpayers who applied the credit against
9 tax under article twenty-two of this chapter, in effect on the last day
10 of the taxable year.
11 (3) The employment increase test shall be deemed met where the average
12 number of full-time employees of the taxpayer within the state during
13 the test year exceeds such number determined with respect to the
14 contribution year and the two immediately preceding taxable years by one
15 thousand.
16 (4) The average number of employees in a taxable year shall be
17 computed by ascertaining the number of employees within the state,
18 except general executive officers (in the case of a corporation),
19 employed by the taxpayer on the thirty-first day of March, the thirtieth
20 day of June, the thirtieth day of September and the thirty-first day of
21 December in the taxable year, by adding together the number of employees
22 ascertained on each of such dates and dividing the sum so obtained by
23 the number of such abovementioned dates occurring within the taxable
24 year. For the purposes of this subdivision, the term "employees within
25 the state, except general executive officers" shall mean the same as in
26 subparagraph three of paragraph (a) of subdivision three of section two
27 hundred ten of this chapter.
28 (d) Cross-references. For application of the credit provided for in
29 this section, see the following provisions of this chapter:
30 (1) Article 9: Section 187-e,
31 (2) Article 9-A: Section 210: subdivision 32,
32 (3) Article 22: Section 606: subsections (i) and (z),
33 (4) Article 32: Section 1456: subsection (n),
34 (5) Article 33: Section 1511: subdivision (p).
35 § 2. The tax law is amended by adding a new section 187-e to read as
36 follows:
37 § 187-e. Credit for transportation improvement contributions. 1.
38 Allowance of credit. A taxpayer shall be allowed a credit, to be
39 computed as provided in section twenty of this chapter, against the
40 taxes imposed by sections one hundred eighty-three, one hundred eighty-
41 four, one hundred eighty-five and one hundred eighty-six of this arti-
42 cle. Provided, however, that the amount of such credit allowable
43 against the tax imposed by section one hundred eighty-four of this arti-
44 cle shall be the excess of the amount of such credit over the amount of
45 any credit allowed by this section against the tax imposed by section
46 one hundred eighty-three of this article.
47 2. Application of credit. In no event shall the credit under this
48 section be allowed in an amount which will reduce the tax payable to
49 less than the applicable minimum tax fixed by section one hundred eight-
50 y-three, one hundred eighty-five or one hundred eighty-six of this arti-
51 cle. If, however, the amount of credit allowable under this section for
52 any taxable year reduces the tax to such amount, any amount of credit
53 not thus deductible in such taxable year shall be treated as an overpay-
54 ment of tax to be credited or refunded in accordance with the provisions
55 of section ten hundred eighty-six of this chapter. Provided, however,
S. 6295 102 A. 9295
1 the provisions of subsection (c) of section ten hundred eighty-eight of
2 this chapter notwithstanding, no interest shall be paid thereon.
3 3. Credit recapture. For provisions requiring recapture of credit, see
4 subdivision (c) of section twenty of this chapter.
5 § 3. Section 210 of the tax law is amended by adding a new subdivision
6 32 to read as follows:
7 32. Credit for transportation improvement contributions. (a) Allowance
8 of credit. A taxpayer shall be allowed a credit, to be computed as
9 provided in section twenty of this chapter, against the tax imposed by
10 this article.
11 (b) Application of credit. The credit allowed under this subdivision
12 for any taxable year shall not reduce the tax due for such year to less
13 than the higher of the amounts prescribed in paragraphs (c) and (d) of
14 subdivision one of this section. However, if the amount of credit
15 allowed under this subdivision for any taxable year reduces the tax to
16 such amount, any amount of credit thus not deductible in such taxable
17 year shall be treated as an overpayment of tax to be credited or
18 refunded in accordance with the provisions of section ten hundred eight-
19 y-six of this chapter. Provided, however, the provisions of subsection
20 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
21 no interest shall be paid thereon.
22 (c) Credit recapture. For provisions requiring recapture of credit,
23 see subdivision (c) of section twenty of this chapter.
24 § 4. Paragraph 1 of subsection (i) of section 606 of the tax law, as
25 amended by section 2 of part J of chapter 407 of the laws of 1999, is
26 amended to read as follows:
27 (1) For purposes of determining the application under this section of
28 the credit provisions enumerated in the following table, a shareholder
29 of a New York S corporation:
30 (A) shall be treated as the taxpayer with respect to his or her pro
31 rata share of the corresponding credit base of such corporation, deter-
32 mined for the corporation's taxable year ending with or within the
33 shareholder's taxable year and
34 (B) shall be treated as the owner of a new business with respect to
35 such share if the corporation qualifies as a new business pursuant to
36 paragraph (j) of subdivision twelve of section two hundred ten of this
37 chapter, unless the shareholder has previously received a refund by
38 reason of the application of this subparagraph, or this subsection as it
39 was in effect for taxable years beginning before nineteen hundred nine-
40 ty-four.
41 With respect to the The corporation's
42 following credit credit base under
43 under this section: section two hundred ten
44 or section fourteen
45 hundred fifty-six of this
46 chapter is:
47 Investment tax credit Investment credit base
48 under subsection (a) or qualified
49 rehabilitation
50 expenditures under
51 subdivision twelve of
52 section two hundred ten
53 Economic development Cost or other basis
S. 6295 103 A. 9295
1 zone investment tax credit under subdivision
2 under subsection (j) twelve-B
3 of section two hundred
4 ten
5 Economic development Eligible wages under
6 zone wage tax credit subdivision nineteen of
7 under subsection (k) section two hundred ten
8 or subsection (e) of
9 section fourteen hundred
10 fifty-six
11 Economic development zone Qualified investments
12 capital tax credit and contributions under
13 under subsection (1) subdivision twenty of
14 section two hundred ten
15 or subsection (d) of
16 section fourteen hundred
17 fifty-six
18 Agricultural property tax Allowable school
19 credit under subsection (n) district property taxes under
20 subdivision twenty-two of
21 section two hundred ten
22 Credit for employment Qualified first-year wages or
23 of persons with dis- qualified second-year wages
24 abilities under under subdivision
25 subsection (o) twenty-three of section
26 two hundred ten
27 or subsection (f)
28 of section fourteen
29 hundred fifty-six
30 Employment incentive Applicable investment credit
31 credit under subsec- base under subdivision
32 tion (a-1) twelve-D
33 Economic develop- Applicable investment
34 ment zone employment credit under sub-
35 incentive credit under division twelve-C
36 subsection (j-1)
37 Alternative fuels credit Cost under subdivision
38 under subsection (p) twenty-four
39 Qualified emerging Applicable credit base
40 technology company under subdivision twelve-E
41 employment credit of section two hundred ten
42 under subsection (q)
43 Qualified emerging Qualified investments under
44 technology company subdivision twelve-F of
45 capital tax credit section two hundred ten
46 under subsection (r)
S. 6295 104 A. 9295
1 Credit for purchase of an Cost of an automated
2 automated external defibrillator external defibrillator under
3 under subsection (s) subdivision twenty-five of
4 section two hundred ten
5 or subsection (j) of section
6 fourteen hundred fifty-six
7 Credit for transportation Amount of credit under sub-
8 improvement contributions division thirty-two of section
9 under subsection (z) two hundred ten or subsection
10 (n) of section fourteen
11 hundred fifty-six
12 § 5. Section 606 of the tax law is amended by adding a new subsection
13 (z) to read as follows:
14 (z) Credit for transportation improvement contributions. (1) Allowance
15 of credit. A taxpayer shall be allowed a credit, to be computed as
16 provided in section twenty of this chapter, against the tax imposed by
17 this article.
18 (2) Application of credit. If the amount of the credit allowed under
19 this subsection for any taxable year shall exceed the taxpayer's tax for
20 such year, the excess shall be treated as an overpayment of tax to be
21 credited or refunded in accordance with the provisions of section six
22 hundred eighty-six of this article, provided, however, that no interest
23 shall be paid thereon.
24 (3) Credit recapture. For provisions requiring recapture of credit,
25 see subdivision (c) of section twenty of this chapter.
26 § 6. Section 1456 of the tax law is amended by adding a new subsection
27 (n) to read as follows:
28 (n) Credit for transportation improvement contributions. (1) Allowance
29 of credit. A taxpayer shall be allowed a credit, to be computed as
30 provided in section twenty of this chapter, against the tax imposed by
31 this article.
32 (2) Application of credit. The credit allowed under this subsection
33 for any taxable year shall not reduce the tax due for such year to less
34 than the minimum tax fixed by subsection (b) of section fourteen hundred
35 fifty-five of this article. However, if the amount of credit allowed
36 under this subsection for any taxable year reduces the tax to such
37 amount, then any amount of credit thus not deductible in such taxable
38 year shall be treated as an overpayment of tax to be credited or
39 refunded in accordance with the provisions of section ten hundred eight-
40 y-six of this chapter. Provided, however, the provisions of subsection
41 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
42 no interest shall be paid thereon.
43 (3) Credit recapture. For provisions requiring recapture of credit,
44 see subdivision (c) of section twenty of this chapter.
45 § 7. Section 1511 of the tax law is amended by adding a new subdivi-
46 sion (p) to read as follows:
47 (p) Credit for transportation improvement contributions. (1) Allowance
48 of credit. A taxpayer shall be allowed a credit, to be computed as
49 provided in section twenty of this chapter, against the taxes imposed by
50 this article.
51 (2) Application of credit. The credit allowed under this subdivision
52 for any taxable year shall not reduce the tax due for such year to less
53 than the minimum fixed by paragraph four of subdivision (a) of section
54 fifteen hundred two of this article. However, if the amount of credit
55 allowed under this subdivision for any taxable year reduces the tax to
S. 6295 105 A. 9295
1 such amount, then any amount of credit thus not deductible in such taxa-
2 ble year shall be treated as an overpayment of tax to be credited or
3 refunded in accordance with the provisions of section ten hundred eight-
4 y-six of this chapter. Provided, however, the provisions of subsection
5 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
6 no interest shall be paid thereon.
7 (3) Credit recapture. For provisions requiring recapture of credit,
8 see subdivision (c) of section twenty of this chapter.
9 § 8. Section 14 of the transportation law is amended by adding a new
10 subdivision 34 to read as follows:
11 34. To issue certifications with respect to the transportation
12 improvement credit, as provided for by section twenty of the tax law.
13 § 9. This act shall take effect immediately and shall apply to
14 contributions made on or after January 1, 2000 in taxable years begin-
15 ning on or after such date.
16 PART O
17 Section 1. Paragraphs 20 and 21 of subdivision (b) of section 1101 of
18 the tax law are REPEALED and a new paragraph 20 is added to read as
19 follows:
20 (20) Commercial horse boarding operation. "Commercial horse boarding
21 operation" shall have the same meaning that such term has in subdivision
22 thirteen of section three hundred one of the agriculture and markets
23 law.
24 § 2. Subparagraph (vi) of paragraph 3 of subdivision (c) of section
25 1105 of the tax law, as added by chapter 103 of the laws of 1981, is
26 amended to read as follows:
27 (vi) such services rendered on or after September first, nineteen
28 hundred eighty-two, with respect to tangible personal property for use
29 or consumption [directly and] predominantly either in the production for
30 sale of tangible personal property by farming or in a commercial horse
31 boarding operation, or in both, as such tangible personal property is
32 specified in paragraph six of subdivision (a) of section eleven hundred
33 fifteen of this article. The exemption provided by this subparagraph
34 [(vi)] shall not apply to the taxes imposed pursuant to section eleven
35 hundred seven of this article.
36 § 3. Paragraph 5 of subdivision (c) of section 1105 of the tax law, as
37 amended by section 2 of part Y of chapter 407 of the laws of 1999, is
38 amended to read as follows:
39 (5) Maintaining, servicing or repairing real property, property or
40 land, as such terms are defined in the real property tax law, whether
41 the services are performed in or outside of a building, as distinguished
42 from adding to or improving such real property, property or land, by a
43 capital improvement as such term capital improvement is defined in para-
44 graph nine of subdivision (b) of section eleven hundred one of this
45 article, but excluding (i) services rendered by an individual who is not
46 in a regular trade or business offering his services to the public, (ii)
47 services rendered directly with respect to real property, property or
48 land used or consumed directly and predominantly in the production for
49 sale of gas or oil by manufacturing, processing, generating, assembling,
50 refining, mining, or extracting and (iii) services rendered [directly]
51 with respect to real property, property or land used or consumed
52 [directly and] predominantly either in the production of tangible
53 personal property, for sale, by farming[, but not including such
54 services rendered with respect to such real property, property or land
S. 6295 106 A. 9295
1 which consists of or is constructed from non-qualifying farm building
2 materials and not including such services in conjunction with which
3 non-qualifying farm building materials are transferred to the purchaser]
4 or in a commercial horse boarding operation, or in both.
5 § 4. Paragraph 1 of subdivision (b) of section 1108 of the tax law, as
6 separately amended by section 2 of part D and section 3 of part Y of
7 chapter 407 of the laws of 1999, is amended to read as follows:
8 (1) Notwithstanding any provision of law to the contrary, the receipts
9 from the following shall be exempt from the tax on retail sales and the
10 compensating use tax imposed by this section: All sales of tangible
11 personal property for use or consumption directly and predominantly in
12 the production of tangible personal property, gas, electricity, refrig-
13 eration or steam, for sale, by manufacturing, processing, generating,
14 assembling, refining, mining[,] or extracting [or farming and]; all
15 sales of telephone central office equipment and station apparatus or
16 comparable telegraph equipment for use directly and predominantly in
17 receiving at destination or in initiating and switching telephone or
18 telegraph communications, or in receiving, amplifying, processing, tran-
19 smitting and retransmitting telephone or telegraph signals; and all
20 sales of tangible personal property for use or consumption predominantly
21 either in the production of tangible personal property, for sale, by
22 farming or in a commercial horse boarding operation, or in both.
23 § 5. Paragraph 6 of subdivision (a) of section 1115 of the tax law, as
24 amended by section 4 of part Y of chapter 407 of the laws of 1999, is
25 amended to read as follows:
26 (6) (A) Tangible personal property, whether or not incorporated in a
27 building or structure [but not including non-qualifying farm building
28 materials], for use or consumption [directly and] predominantly either
29 in the production for sale of tangible personal property by farming or
30 in a commercial horse boarding operation, or in both.
31 (B) With respect to the exemption of motor vehicles under this para-
32 graph, (i) use of a motor vehicle [directly] either in the production
33 phase of farming or in a commercial horse boarding operation, or in
34 both, shall be defined as any use of the motor vehicle on property
35 either farmed or used in a commercial horse boarding operation, or both,
36 by the motor vehicle purchaser or user or in direct and uninterrupted
37 trips between properties farmed or used in such operation, or both, by
38 the motor vehicle purchaser or user, and (ii) "predominantly" shall mean
39 that more than fifty percent of the motor vehicle's use is [directly]
40 either in the production phase of farming or in a commercial horse
41 boarding operation, or in both. The percentage of such vehicle's use
42 [directly] either in the production phase of farming or in a commercial
43 horse boarding operation, or in both, may be computed either on the
44 basis of mileage or hours of use, at the discretion of the motor vehicle
45 purchaser or user. A person may purchase a motor vehicle qualifying for
46 exemption under this paragraph without payment of tax imposed by section
47 eleven hundred five or eleven hundred ten of this article by furnishing
48 the vendor a properly completed exemption certificate promulgated by the
49 commissioner; and such purchaser may register such vehicle or apply for
50 a certificate of title for such vehicle with the commissioner of motor
51 vehicles or a county clerk, without payment of such taxes, by furnishing
52 such a properly completed certificate to such commissioner or clerk.
53 § 6. Paragraphs 15 and 16 of subdivision (a) of section 1115 of the
54 tax law, as amended by section 5 of part Y of chapter 407 of the laws of
55 1999, are amended to read as follows:
S. 6295 107 A. 9295
1 (15) Tangible personal property sold to a contractor, subcontractor or
2 repairman for use in (i) erecting a structure or building [(a)] (A) of
3 an organization described in subdivision (a) of section eleven hundred
4 sixteen or [(b)] (B) used [directly and] predominantly either in the
5 production phase of farming [other than non-qualifying farm building
6 materials] or in a commercial horse boarding operation, or in both, or
7 (ii) adding to, altering or improving real property, property or land
8 [(a)] (A) of such an organization or [(b)] (B) used [directly and]
9 predominantly either in the production phase of farming [other than
10 non-qualifying farm building materials] or in a commercial horse board-
11 ing operation, or in both, as the terms real property, property or land
12 are defined in the real property tax law; provided, however, no
13 exemption shall exist under this paragraph unless such tangible personal
14 property is to become an integral component part of such structure,
15 building or real property.
16 (16) Tangible personal property sold to a contractor, subcontractor or
17 repairman for use in maintaining, servicing or repairing real property,
18 property or land (i) of an organization described in subdivision (a) of
19 section eleven hundred sixteen or (ii) used [directly and] predominantly
20 either in the production phase of farming [other than non-qualifying
21 farm building materials] or in a commercial horse boarding operation, or
22 in both, as the terms real property, property or land are defined in the
23 real property tax law; provided, however, no exemption shall exist under
24 this paragraph unless such tangible personal property is to become an
25 integral component part of such structure, building or real property.
26 § 7. Subdivision (c) of section 1115 of the tax law, as added by chap-
27 ter 93 of the laws of 1965, is amended to read as follows:
28 (c) (1) Fuel, gas, electricity, refrigeration and steam, and gas,
29 electric, refrigeration and steam service of whatever nature for use or
30 consumption directly and exclusively in the production of tangible
31 personal property, gas, electricity, refrigeration or steam, for sale,
32 by manufacturing, processing, assembling, generating, refining,
33 mining[,] or extracting[, farming, agriculture, horticulture or flori-
34 culture,] shall be exempt from the taxes imposed under subdivisions (a)
35 and (b) of section eleven hundred five and the compensating use tax
36 imposed under section eleven hundred ten of this article.
37 (2) Fuel, gas, electricity, refrigeration and steam, and gas, elec-
38 tric, refrigeration and steam service of whatever nature for use or
39 consumption either in the production of tangible personal property, for
40 sale, by farming or in a commercial horse boarding operation, or in
41 both, shall be exempt from the taxes imposed under subdivisions (a) and
42 (b) of section eleven hundred five and the compensating use tax imposed
43 under section eleven hundred ten of this article.
44 § 8. Subdivision (j) of section 1115 of the tax law, as amended by
45 chapter 261 of the laws of 1988, is amended to read as follows:
46 (j) The exemptions provided in this section shall not apply to the tax
47 required to be prepaid pursuant to the provisions of section eleven
48 hundred two of this article nor to the taxes imposed by sections eleven
49 hundred five and eleven hundred ten of this article with respect to
50 receipts from sales and uses of motor fuel or diesel motor fuel, except
51 that the exemption provided in paragraph nine of subdivision (a) of this
52 section shall apply to the tax required to be prepaid pursuant to the
53 provisions of section eleven hundred two of this article and to the
54 taxes imposed by sections eleven hundred five and eleven hundred ten of
55 this article with respect to sales and uses of kero-jet fuel. The
56 exemption provided in subdivision (c) of this section shall apply to
S. 6295 108 A. 9295
1 sales and uses of diesel motor fuel which is not enhanced diesel motor
2 fuel but only if all of such fuel is consumed other than on the highways
3 of this state, provided, however, this exemption shall in no event apply
4 to a sale of diesel motor fuel which involves a delivery at a filling
5 station or into a repository which is equipped with a hose or other
6 apparatus by which such fuel can be dispensed into the fuel tank of a
7 motor vehicle. The exemption provided in subdivision (c) of this section
8 shall apply to sales and uses of no more than four thousand five hundred
9 gallons of diesel motor fuel in a thirty-day period for use or consump-
10 tion [directly and exclusively] either in the production for sale of
11 tangible personal property by farming or in a commercial horse boarding
12 operation, or in both but only if all of such fuel is consumed other
13 than on the highways of this state (except for the use of the highways
14 to reach adjacent farmlands or adjacent lands used in a commercial horse
15 boarding operation, or both), provided, however, such exemption shall be
16 applicable to the sale or use of more than four thousand five hundred
17 gallons of diesel motor fuel in a thirty-day period for such use or
18 consumption in accordance with a prior clearance given by the commis-
19 sioner [of taxation and finance].
20 § 9. Paragraph 1 of subdivision (a) of section 1210 of the tax law, as
21 separately amended by section 4 of part D, section 5 of part KK and
22 section 6 of part Y of chapter 407 of the laws of 1999, is amended to
23 read as follows:
24 (1) Either, all of the taxes described in article twenty-eight of this
25 chapter, at the same uniform rate, as to which taxes all provisions of
26 the local laws, ordinances or resolutions imposing such taxes shall be
27 identical, except as to rate and except as otherwise provided herein,
28 with the corresponding provisions in such article twenty-eight, includ-
29 ing the definition and exemption provisions of such article, so far as
30 the provisions of such article twenty-eight can be made applicable to
31 the taxes imposed by such city or county and with such limitations and
32 special provisions as are set forth in this article. However, any local
33 law enacted by any city of one million or more, imposing the taxes
34 authorized by this subdivision, shall omit the exemption provided in
35 subdivision (c) of section eleven hundred fifteen and, unless such city
36 elects otherwise, the provision for refund or credit contained in clause
37 six of subdivision (a) of section eleven hundred nineteen, and may omit
38 (A) the exception provided in paragraph three of subdivision (c) of
39 section eleven hundred five for receipts from laundering, dry-cleaning,
40 tailoring, weaving, pressing, shoe repairing and shoe shining and (B)
41 the exception provided in paragraph one of subdivision (f) of section
42 eleven hundred five for charges to a patron for admission to, or use of,
43 facilities for sporting activities in which such patron is to be a
44 participant, such as bowling alleys and swimming pools. Furthermore, any
45 local law enacted by a city of one million or more imposing the taxes
46 authorized by this subdivision may impose the taxes described in para-
47 graph six of subdivision (c) of section eleven hundred five at a rate in
48 addition to the rate prescribed by this section not to exceed two per
49 centum in multiples of one-half of one per centum. The taxes authorized
50 under this subdivision may not be imposed by a city or county unless the
51 local law, ordinance or resolution imposes such taxes so as to include
52 all portions and all types of receipts, charges or rents, subject to
53 state tax under sections eleven hundred five and eleven hundred ten,
54 except as provided in the following sentence. Any local law, ordinance
55 or resolution enacted by any city of less than one million or by any
56 county or school district, imposing the taxes authorized by this subdi-
S. 6295 109 A. 9295
1 vision, shall, notwithstanding any provision of law to the contrary,
2 exclude from the operation of such local taxes all sales of tangible
3 personal property for use or consumption directly and predominantly in
4 the production of tangible personal property, gas, electricity, refrig-
5 eration or steam, for sale, by manufacturing, processing, generating,
6 assembly, refining, mining[,] or extracting [or farming and]; all sales
7 of telephone central office equipment and station apparatus or compara-
8 ble telegraph equipment for use directly and predominantly in receiving
9 at destination or in initiating and switching telephone or telegraph
10 communication, or in receiving, amplifying, processing, transmitting and
11 retransmitting telephone or telegraph signals; and all sales of tangible
12 personal property for use or consumption predominantly either in the
13 production of tangible personal property, for sale, by farming or in a
14 commercial horse boarding operation, or in both; and, unless such city,
15 county or school district elects otherwise, shall omit the provision for
16 credit or refund contained in clause six of subdivision (a) of section
17 eleven hundred nineteen. Any local law, ordinance or resolution enacted
18 by any city, county or school district, imposing the taxes authorized by
19 this subdivision, shall omit the clothing and footwear exemption
20 provided for in paragraph thirty of subdivision (a) of section eleven
21 hundred fifteen, unless such city, county or school district elects
22 otherwise; provided that if such a city having a population of one
23 million or more enacts the resolution described in subdivision (k) of
24 this section or repeals such resolution, such resolution or repeal shall
25 also be deemed to amend any local law, ordinance or resolution enacted
26 by such a city imposing such taxes pursuant to the authority of this
27 subdivision, whether or not such taxes are suspended at the time such
28 city enacts its resolution pursuant to subdivision (k) of this section
29 or at the time of any such repeal; provided, further, that any such
30 local law, ordinance or resolution and section eleven hundred seven, as
31 deemed to be amended in the event a city of one million or more enacts a
32 resolution pursuant to the authority of subdivision (k) of this section,
33 shall be further amended, as provided in section twelve hundred eigh-
34 teen, so that the clothing and footwear exemption in any such local law,
35 ordinance or resolution or in such section eleven hundred seven is the
36 same as the clothing and footwear exemption in paragraph thirty of
37 subdivision (a) of section eleven hundred fifteen.
38 § 10. This act shall take effect on March 1, 2001, and shall apply to
39 sales made, services rendered and uses occurring on or after that date
40 although made, rendered or occurring under a prior contract; provided,
41 further, that the commissioner of taxation and finance shall be author-
42 ized on and after the date this act shall have become a law to take
43 steps necessary to implement these provisions on their effective date.
44 PART P
45 Section 1. The opening paragraph of subdivision 1 of section 210 of
46 the tax law, as amended by chapter 190 of the laws of 1990, is amended
47 to read as follows:
48 The tax imposed by subdivision one of section two hundred nine of this
49 chapter shall be[,]: (A) in the case of each taxpayer other than a New
50 York S corporation or a qualified homeowners association, the sum of (1)
51 the highest of the amounts prescribed in paragraphs (a), (b), (c) and
52 (d) of this subdivision and (2) the amount prescribed in paragraph (e)
53 of this subdivision, [and,] (B) in the case of each New York S corpo-
54 ration, the amount prescribed in paragraph (g) of this subdivision, and
S. 6295 110 A. 9295
1 (C) in the case of a qualified homeowners association, the sum of (1)
2 the highest of the amounts prescribed in paragraphs (a), (b) and (c) of
3 this subdivision and (2) the amount prescribed in paragraph (e) of this
4 subdivision. For purposes of this paragraph, the term "qualified home-
5 owners association" means a homeowners association, as such term is
6 defined in subsection (c) of section five hundred twenty-eight of the
7 internal revenue code without regard to subparagraph (E) of paragraph
8 one of such subsection (relating to elections to be taxed pursuant to
9 such section), which has no homeowners association taxable income, as
10 such term is defined in subsection (d) of such section. Provided,
11 however, that in the case of a small business taxpayer (other than a New
12 York S corporation) as defined in paragraph (f) of this subdivision, if
13 the amount prescribed in such paragraph (b) is higher than the amount
14 prescribed in such paragraph (a) solely by reason of the application of
15 the rate applicable to small business taxpayers, then with respect to
16 such taxpayer the tax referred to in the previous sentence shall be the
17 sum of (1) the highest of the amounts prescribed in paragraphs (a), (c)
18 and (d) of this subdivision and (2) the amount prescribed in paragraph
19 (e) of this subdivision.
20 § 2. This act shall take effect immediately and shall apply to taxable
21 years beginning on and after January 1, 2000.
22 PART Q
23 Section 1. Subdivision (a) of section 301-a of the tax law, as added
24 by chapter 190 of the laws of 1990, is amended to read as follows:
25 (a) General. Notwithstanding any other provision of this chapter, or
26 of any other law, for taxable months commencing on or after the first
27 day of September, nineteen hundred ninety, there is hereby imposed upon
28 every petroleum business for the privilege of engaging in business,
29 doing business, employing capital, owning or leasing property, or main-
30 taining an office in this state, a monthly tax for each or any part of a
31 taxable month equal to the sum of the motor fuel component determined
32 pursuant to subdivision (b) of this section, the automotive-type diesel
33 motor fuel component determined pursuant to paragraph one of subdivision
34 (c) of this section, the nonautomotive-type diesel motor fuel component
35 determined pursuant to paragraph two of subdivision (c) of this section
36 and the residual petroleum product component determined pursuant to
37 subdivision (d) of this section. [In no event shall the tax imposed by
38 this article be less than twenty-five dollars for each or any part of a
39 taxable month.]
40 § 2. Subdivision (a) of section 301-e of the tax law, as amended by
41 chapter 2 of the laws of 1995, is amended to read as follows:
42 (a) Notwithstanding any other provision of this chapter, for taxable
43 months commencing on and after the first day of September, nineteen
44 hundred ninety, there is hereby imposed upon every aviation fuel busi-
45 ness for the privilege of engaging in business, doing business, employ-
46 ing capital, owning or leasing property, or maintaining an office in
47 this state, for all or any part of each of its taxable months a monthly
48 tax equal to the sum of (1) the aviation gasoline component determined
49 pursuant to subdivision (b) of this section and (2) the kero-jet compo-
50 nent determined pursuant to subdivision (c) of this section. [In no
51 event shall the tax imposed by this article be less than two dollars for
52 each or any part of a taxable month.] Provided, however, the commission-
53 er may permit the tax imposed under this subdivision and returns related
S. 6295 111 A. 9295
1 to such tax to be paid and filed for a period covering twelve consec-
2 utive taxable months by aviation fuel businesses which are not airlines.
3 § 3. This act shall take effect March 1, 2001, provided, however, that
4 any rules or regulations necessary to implement the provisions of this
5 act may be promulgated and any procedures, forms, or instructions neces-
6 sary for such implementation may be adopted and issued on and after the
7 date this act shall have become a law; and the provisions of article
8 13-A of the tax law amended by this act shall continue in effect with
9 respect to the administration, collection and enforcement of taxes
10 accruing prior to repeal or amendment.
11 PART R
12 Section 1. The opening paragraph of subdivision a of section 1604 of
13 the tax law, as amended by chapter 913 of the laws of 1977, is amended
14 to read as follows:
15 In addition to the powers and duties provided in other sections of
16 this article, the division shall have the power and it shall be its duty
17 to operate and administer the lottery including any [lottery for the
18 support of winter sports physical education in commemoration of the XIII
19 winter olympic games] joint, multi-jurisdiction, or out-of-state lottery
20 in cooperation with a government-authorized lottery of one or more other
21 jurisdictions, and to promulgate rules and regulations governing the
22 establishment and operation thereof, including but not limited to the
23 following:
24 § 2. Paragraph 3 of subdivision a of section 1612 of the tax law, as
25 amended by chapter 2 of the laws of 1995, is amended to read as follows:
26 (3) fifty percent of the total amount for which tickets have been sold
27 for games known as: (A) the "Daily Numbers Game" or "Win 4", discrete
28 games in which the participants select no more than three or four of
29 their own numbers to match with three or four numbers drawn by the divi-
30 sion for purposes of determining winners of such games, (B) "Pick 10",
31 offered no more than once daily, in which participants select from a
32 specified field of numbers a subset of ten numbers to match against a
33 subset of numbers to be drawn by the division from such field of numbers
34 for the purpose of determining winners of such game, [and] (C) "Take 5",
35 offered no more than once daily, in which participants select from a
36 specified field of numbers a subset of five numbers to match against a
37 subset of five numbers to be drawn by the division from such field of
38 numbers for purposes of determining winners of such game, and (D) any
39 joint, multi-jurisdiction, or out-of-state lottery game, provided that
40 prior to the introduction of such game there must have been a detailed
41 description of such game in the annual financial plan required by
42 section sixteen hundred fifteen of this article; or
43 § 3. Section 1617 of the tax law is REPEALED and a new section 1617 is
44 added to read as follows:
45 § 1617. Joint, multi-jurisdiction, or out-of-state lottery. Subject
46 to the provisions of sections sixteen hundred twelve and sixteen hundred
47 fifteen of this article, the director may enter into an agreement with a
48 government-authorized lottery of one or more other jurisdictions provid-
49 ing for the operation and administration of a joint, multi-jurisdiction,
50 or out-of-state lottery. Such a joint, multi-jurisdiction, or out-of-
51 state lottery may include a combined drawing, a combined prize pool, the
52 transfer of sales and prize monies to other jurisdictions as may be
53 necessary, and such other cooperative arrangements as the director deems
54 necessary or desirable.
S. 6295 112 A. 9295
1 § 4. This act shall take effect immediately.
2 PART S
3 Section 1. Section 282-b of the tax law, as amended by chapter 55 of
4 the laws of 1992, is amended to read as follows:
5 § 282-b. Additional Diesel motor fuel tax. In addition to the tax
6 imposed by section two hundred eighty-two-a of this chapter, a like tax
7 shall be imposed at the rate of three cents per gallon upon sale or use
8 within the state of Diesel motor fuel or upon the delivery of Diesel
9 motor fuel to a filling station or into the fuel tank of a motor vehicle
10 for use in the operation thereof. Except as otherwise provided in this
11 section, all of the provisions of this article shall apply with respect
12 to the additional tax imposed by this section to the same extent as if
13 it were imposed by said section two hundred eighty-two-a. Beginning on
14 April first, nineteen hundred ninety-one, four and one-sixth per centum
15 of the moneys received by the department [of taxation and finance]
16 pursuant to the provisions of this section shall be deposited to the
17 credit of the emergency highway reconditioning and preservation fund
18 reserve account established pursuant to the provisions of paragraph (b)
19 of subdivision two of section eighty-nine of the state finance law.
20 Beginning on April first, nineteen hundred ninety-one, four and one-
21 sixth per centum of the moneys received by the department [of taxation
22 and finance] pursuant to the provisions of this section shall be depos-
23 ited to the credit of the emergency highway construction and recon-
24 struction fund reserve account established pursuant to the provisions of
25 paragraph (b) of subdivision two of section eighty-nine-a of the state
26 finance law. Beginning on April first, nineteen hundred ninety-two, an
27 additional eight and one-third per centum of the moneys received by the
28 department [of taxation and finance] pursuant to the provisions of this
29 section shall be deposited to the credit of the emergency highway recon-
30 ditioning and preservation fund reserve account established pursuant to
31 the provisions of paragraph (b) of subdivision two of section eighty-
32 nine of the state finance law. Beginning on April first, nineteen
33 hundred ninety-two, an additional eight and one-third per centum of the
34 moneys received by the department [of taxation and finance] pursuant to
35 the provisions of this section shall be deposited to the credit of the
36 emergency highway construction and reconstruction fund reserve account
37 established pursuant to the provisions of paragraph (b) of subdivision
38 two of section eighty-nine-a of the state finance law. Beginning on
39 April first, two thousand one, seventy-five per centum of the moneys
40 received by the department pursuant to the provisions of this section
41 shall be deposited in the dedicated fund accounts pursuant to subdivi-
42 sion (d) of section three hundred one-j of this chapter. Beginning on
43 April first, two thousand three, all of the moneys received by the
44 department pursuant to the provisions of this section shall be deposited
45 in the dedicated fund accounts pursuant to subdivision (d) of section
46 three hundred one-j of this chapter.
47 § 2. Section 282-c of the tax law, as amended by chapter 166 of the
48 laws of 1991, is amended to read as follows:
49 § 282-c. Supplemental Diesel motor fuel tax. In addition to the taxes
50 imposed by sections two hundred eighty-two-a and two hundred
51 eighty-two-b of this chapter, a like tax shall be imposed at the rate of
52 one cent per gallon upon the sale or use within the state of Diesel
53 motor fuel or upon the delivery of Diesel motor fuel to a filling
54 station or into the fuel tank of a motor vehicle for use in the opera-
S. 6295 113 A. 9295
1 tion thereof. Except for paragraph (b) of subdivision three of section
2 two hundred eighty-nine-c, all the provisions of this article shall
3 apply with respect to the supplemental tax imposed by this section to
4 the same extent as if it were imposed by said section two hundred eight-
5 y-two-a. On and after the first day of October, nineteen hundred seven-
6 ty-two, twenty-five per centum of the monies received by the department
7 [of taxation and finance] pursuant to the provisions of this section
8 shall be deposited to the credit of the emergency highway reconditioning
9 and preservation fund established pursuant to the provisions of section
10 eighty-nine of the state finance law. Beginning on April first, nineteen
11 hundred eighty-three, twenty-five per centum of the monies received by
12 the department [of taxation and finance] pursuant to the provisions of
13 this section shall be deposited to the credit of the emergency highway
14 construction and reconstruction fund established pursuant to the
15 provisions of section eighty-nine-a of the state finance law. Beginning
16 on April first, nineteen hundred ninety, an additional twelve and one-
17 half per centum of the moneys received by the department [of taxation
18 and finance] pursuant to the provisions of this section shall be depos-
19 ited to the credit of the emergency highway reconditioning and preserva-
20 tion fund reserve account established pursuant to the provisions of
21 paragraph (b) of subdivision two of section eighty-nine of the state
22 finance law. Beginning on April first, nineteen hundred ninety, an addi-
23 tional twelve and one-half per centum of the moneys received by the
24 department [of taxation and finance] pursuant to the provisions of this
25 section shall be deposited to the credit of the emergency highway
26 construction and reconstruction fund reserve account established pursu-
27 ant to the provisions of paragraph (b) of subdivision two of section
28 eighty-nine-a of the state finance law. Beginning on April first, nine-
29 teen hundred ninety-one, an additional twelve and one-half per centum of
30 the moneys received by the department [of taxation and finance] pursuant
31 to the provisions of this section shall be deposited to the credit of
32 the emergency highway reconditioning and preservation fund reserve
33 account established pursuant to the provisions of paragraph (b) of
34 subdivision two of section eighty-nine of the state finance law. Begin-
35 ning on April first, nineteen hundred ninety-one, an additional twelve
36 and one-half per centum of the moneys received by the department [of
37 taxation and finance] pursuant to the provisions of this section shall
38 be deposited to the credit of the emergency construction and recon-
39 struction fund reserve account established pursuant to the provisions of
40 paragraph (b) of subdivision two of section eighty-nine-a of the state
41 finance law. Beginning on April first, two thousand three, all of the
42 moneys received by the department pursuant to the provisions of this
43 section shall be deposited in the dedicated fund accounts pursuant to
44 subdivision (d) of section three hundred one-j of this chapter.
45 § 3. Section 284-a of the tax law, as amended by chapter 55 of the
46 laws of 1992, is amended to read as follows:
47 § 284-a. Additional motor fuel tax. In addition to the tax imposed by
48 section two hundred eighty-four of this chapter, a like tax shall be
49 imposed at the rate of three cents per gallon upon motor fuel imported,
50 manufactured or sold within this state by a distributor. Except as
51 otherwise provided in this section, all the provisions of this article
52 except subdivision two of section two hundred eighty-nine-e of this
53 article shall apply with respect to the additional tax imposed by this
54 section to the same extent as if it were imposed by said section two
55 hundred eighty-four. Beginning on April first, nineteen hundred ninety-
56 one, four and one-sixth per centum of the moneys received by the depart-
S. 6295 114 A. 9295
1 ment [of taxation and finance] pursuant to the provisions of this
2 section shall be deposited to the credit of the emergency highway recon-
3 ditioning and preservation fund reserve account established pursuant to
4 the provisions of paragraph (b) of subdivision two of section eighty-
5 nine of the state finance law. Beginning on April first, nineteen
6 hundred ninety-one, four and one-sixth per centum of the moneys received
7 by the department [of taxation and finance] pursuant to the provisions
8 of this section shall be deposited to the credit of the emergency high-
9 way construction and reconstruction fund reserve account established
10 pursuant to the provisions of paragraph (b) of subdivision two of
11 section eighty-nine-a of the state finance law. Beginning on April
12 first, nineteen hundred ninety-two, an additional eight and one-third
13 per centum of the moneys received by the department [of taxation and
14 finance] pursuant to the provisions of this section shall be deposited
15 to the credit of the emergency highway reconditioning and preservation
16 fund reserve account established pursuant to the provisions of paragraph
17 (b) of subdivision two of section eighty-nine of the state finance law.
18 Beginning on April first, nineteen hundred ninety-two, an additional
19 eight and one-third per centum of the moneys received by the department
20 [of taxation and finance] pursuant to the provisions of this section
21 shall be deposited to the credit of the emergency highway construction
22 and reconstruction fund reserve account established pursuant to the
23 provisions of paragraph (b) of subdivision two of section eighty-nine-a
24 of the state finance law. Beginning on April first, two thousand,
25 seventy-five per centum of the moneys received by the department pursu-
26 ant to the provisions of this section shall be deposited in the dedi-
27 cated fund accounts pursuant to subdivision (d) of section three hundred
28 one-j of this chapter. Beginning on April first, two thousand three, all
29 of the moneys received by the department pursuant to the provisions of
30 this section shall be deposited in the dedicated fund accounts pursuant
31 to subdivision (d) of section three hundred one-j of this chapter.
32 § 4. Section 284-c of the tax law, as amended by chapter 166 of the
33 laws of 1991, is amended to read as follows:
34 § 284-c. Supplemental motor fuel tax. In addition to the taxes imposed
35 by sections two hundred eighty-four and two hundred eighty-four-a of
36 this chapter, a like tax shall be imposed at the rate of one cent per
37 gallon upon motor fuel imported, manufactured or sold within this state
38 by a distributor. Except for paragraph (b) of subdivision three of
39 section two hundred eighty-nine-c, all the provisions of this article
40 shall apply with respect to the supplemental tax imposed by this section
41 to the same extent as if it were imposed by said section two hundred
42 eighty-four. On and after the first day of October, nineteen hundred
43 seventy-two, twenty-five per centum of the monies received by the
44 department [of taxation and finance] pursuant to the provisions of this
45 section shall be deposited to the credit of the emergency highway recon-
46 ditioning and preservation fund established pursuant to the provisions
47 of section eighty-nine of the state finance law. Beginning on April
48 first, nineteen hundred eighty-three, twenty-five per centum of the
49 monies received by the department [of taxation and finance] pursuant to
50 the provisions of this section shall be deposited to the credit of the
51 emergency highway construction and reconstruction fund established
52 pursuant to the provisions of section eighty-nine-a of the state finance
53 law. Beginning on April first, nineteen hundred ninety, an additional
54 twelve and one-half per centum of the monies received by the department
55 [of taxation and finance] pursuant to the provisions of this section
56 shall be deposited to the credit of the emergency highway reconditioning
S. 6295 115 A. 9295
1 and preservation fund reserve account established pursuant to the
2 provisions of paragraph (b) of subdivision two of section eighty-nine of
3 the state finance law. Beginning on April first, nineteen hundred nine-
4 ty, an additional twelve and one-half per centum of the moneys received
5 by the department [of taxation and finance] pursuant to the provisions
6 of this section shall be deposited to the credit of the emergency high-
7 way construction and reconstruction fund reserve account established
8 pursuant to the provisions of paragraph (b) of subdivision two of
9 section eighty-nine-a of the state finance law. Beginning on April
10 first, nineteen hundred ninety-one, an additional twelve and one-half
11 per centum of the moneys received by the department [of taxation and
12 finance] pursuant to the provisions of this section shall be deposited
13 to the credit of the emergency highway reconditioning and preservation
14 fund reserve account established pursuant to the provisions of paragraph
15 (b) of subdivision two of section eighty-nine of the state finance law.
16 Beginning on April first, nineteen hundred ninety-one, an additional
17 twelve and one-half per centum of the moneys received by the department
18 [of taxation and finance] pursuant to the provisions of this section
19 shall be deposited to the credit of the emergency highway construction
20 and reconstruction fund reserve account established pursuant to the
21 provisions of paragraph (b) of subdivision two of section eighty-nine-a
22 of the state finance law. Beginning on April first, two thousand three,
23 all of the moneys received by the department pursuant to the provisions
24 of this section shall be deposited in the dedicated fund accounts pursu-
25 ant to subdivision (d) of section three hundred one-j of this chapter.
26 § 5. Subdivision 1 of section 289-e of the tax law, as amended by
27 chapter 329 of the laws of 1991, is amended and a new subdivision 3 is
28 added to read as follows:
29 1. All taxes, interest, penalties and fees collected or received by
30 the commissioner [of taxation and finance] under the taxes imposed by
31 this article, except as provided otherwise in subdivision two and subdi-
32 vision three of this section and sections two hundred eighty-two-b, two
33 hundred eighty-two-c, two hundred eighty-four-a and two hundred eighty-
34 four-c, other than those imposed by section two hundred eighty-four-b
35 and the fee imposed by section two hundred eighty-four-d and penalties
36 and interest on such fee, shall be deposited and disposed of pursuant to
37 the provisions of section one hundred seventy-one-a of this chapter;
38 provided that an amount equal to thirty-seven and one-half per centum of
39 the moneys collected under section two hundred eighty-four of this chap-
40 ter shall be appropriated and used for the acquisition of property
41 necessary for the construction and reconstruction of highways and bridg-
42 es or culverts on the state highway system, and for the construction,
43 maintenance and repair of such highways and bridges or culverts, all
44 under the direction of the commissioner of transportation.
45 3. Subject to the provisions of section one hundred seventy-one-a of
46 this chapter relating to refunds and reimbursements, all taxes, inter-
47 est, penalties and fees collected or received by the commissioner after
48 March thirty-first, two thousand, under the taxes imposed by section two
49 hundred eighty-two-a of this article shall be deposited in the dedicated
50 fund accounts pursuant to subdivision (d) of section three hundred one-j
51 of this chapter.
52 § 6. Subdivision (d) of section 301-h of the tax law, as amended by
53 chapter 170 of the laws of 1994, is amended to read as follows:
54 (d) Disposition. Any provision of this article to the contrary
55 notwithstanding, the full amount of tax, as well as interest and penal-
56 ties relating thereto, collected or received by the commissioner [of
S. 6295 116 A. 9295
1 taxation and finance] under this section shall be deposited and disposed
2 of pursuant to the provisions of section one hundred seventy-one-a of
3 this chapter. Beginning on April first, two thousand one, all the
4 moneys received by the commissioner pursuant to the provisions of this
5 section shall be deposited in the dedicated fund accounts pursuant to
6 subdivision (d) of section three hundred one-j of this article.
7 § 7. Subdivision (d) of section 301-j of the tax law, as separately
8 amended by chapters 56 and 57 of the laws of 1993, is amended to read
9 as follows:
10 (d) Deposit and disposition of revenue. All taxes, and any interest
11 and penalties relating thereto, collected or received with respect to
12 the supplemental petroleum and aviation fuel business tax imposed by
13 this section up to and including March thirty-first, nineteen hundred
14 ninety-three shall be deposited and disposed of pursuant to the
15 provisions of section one hundred seventy-one-a of this chapter. Except
16 as otherwise provided, on and after April first, nineteen hundred nine-
17 ty-three, all taxes, and any interest and penalties relating thereto,
18 collected or received in any month with respect to such supplemental
19 petroleum and aviation fuel business tax imposed by this section,
20 together with [the] any other moneys specified in [clause (i) of the
21 first paragraph of subdivision (b) of section three hundred twelve of]
22 this chapter to be deposited under this subdivision, shall be deposited,
23 on or before the fifteenth day of each succeeding month, proportionately
24 into the following [funds] dedicated fund accounts without priority;
25 sixty-three percent in the dedicated highway and bridge trust fund
26 established pursuant to section eighty-nine-b of the state finance law,
27 thirty-four percent in the dedicated mass transportation trust fund
28 established pursuant to section eighty-nine-c of the state finance law
29 to be distributed as follows: eighty-five percent of such amount shall
30 be allocated to the New York city transit authority and its subsidiaries
31 and the Staten Island rapid transit operating authority and fifteen
32 percent of such amount shall be allocated to the Long Island Rail Road
33 Company and metro north commuter railroad company in accordance with the
34 procedures for payment and distribution specified in section one thou-
35 sand two hundred seventy-c of the public authorities law, for payment,
36 subject to appropriation, to the metropolitan transportation authority
37 dedicated tax fund established pursuant to section twelve hundred seven-
38 ty-c of the public authorities law, and three percent in such dedicated
39 mass transportation trust fund to be distributed, subject to appropri-
40 ation, for purposes authorized by section eighty-nine-c of the state
41 finance law, to entities other than the mass transit operating agencies
42 which receive money from the metropolitan transportation authority dedi-
43 cated tax fund. Notwithstanding any general or special law to the
44 contrary, other than a law which makes specific reference to this
45 sentence of this section, so long as such metropolitan transportation
46 authority dedicated tax fund shall exist, any appropriation from the
47 dedicated mass transportation trust fund to the metropolitan transporta-
48 tion authority, its affiliates or its subsidiaries shall be deemed to be
49 an appropriation to the metropolitan transportation authority and the
50 total amount paid pursuant to such appropriation or appropriations or
51 section thirty-one of [a] chapter fifty-six of the laws of [1993 which
52 enacted this sentence] nineteen hundred ninety-three including the
53 second clause of the first sentence of subdivisions a and b thereof,
54 shall be deposited to such metropolitan transportation authority dedi-
55 cated tax fund and distributed in accordance with the provisions of
56 section twelve hundred seventy-c of the public authorities law.
S. 6295 117 A. 9295
1 Prior to making deposits as provided in this subdivision, the comp-
2 troller shall retain such amount as the commissioner may determine to be
3 necessary, subject to the approval of the director of the budget, for
4 reasonable costs of the department [of taxation and finance] in adminis-
5 tering and collecting the taxes deposited pursuant to this subdivision
6 and for refunds and reimbursements with respect to such taxes, out of
7 which the comptroller shall pay any refunds or reimbursements of such
8 taxes to which taxpayers shall be entitled. Provided, further, however,
9 that, prior to such deposit, from the amounts so collected or received
10 during the period commencing on January first, nineteen hundred ninety-
11 four and ending on March thirty-first, nineteen hundred ninety-four, an
12 amount equal to the portion of the taxes, interest and penalties so
13 received or collected resulting from the amendments made by sections
14 forty-two, forty-three and forty-four of [a] chapter fifty-seven of the
15 laws of nineteen hundred ninety-three [that enacted this sentence] shall
16 be deposited and disposed of pursuant to the provisions of subdivision
17 one of section one hundred seventy-one-a of this chapter.
18 § 8. Subdivision (b) of section 312 of the tax law, as amended by
19 section 6 of part H of chapter 407 of the laws of 1999, is amended to
20 read as follows:
21 (b) Of all of the taxes collected or received by the commissioner [of
22 taxation and finance] on or before March thirty-first, nineteen hundred
23 ninety-one under the taxes imposed by sections three hundred one-a and
24 three hundred one-e of this article, and all interest and penalties
25 relating thereto, eighty-seven and five-hundredths percent of such
26 collections shall be deposited and disposed of pursuant to the
27 provisions of section one hundred seventy-one-a of this chapter and the
28 balance thereof shall be deposited in the mass transportation operating
29 assistance fund to the credit of the metropolitan mass transportation
30 operating assistance account and the public transportation systems oper-
31 ating assistance account thereof in the manner provided by subdivision
32 eleven of section one hundred eighty-two-a of this chapter. Of all
33 taxes, interest and penalties collected or received after March thirty-
34 first, nineteen hundred ninety-one, and before April first, nineteen
35 hundred ninety-three, from the taxes imposed by sections three hundred
36 one-a and three hundred one-e of this article, initially thirty-five
37 percent shall be deposited and disposed of pursuant to such section one
38 hundred seventy-one-a. The balance thereof shall then be disposed of as
39 follows: seventy-two and seven-tenths percent shall be deposited and
40 disposed of pursuant to such section one hundred seventy-one-a and twen-
41 ty-seven and three-tenths percent shall be deposited in such mass trans-
42 portation operating assistance fund as prescribed in the aforestated
43 manner. Except as otherwise provided, of all taxes, interest and penal-
44 ties collected or received after March thirty-first, nineteen hundred
45 ninety-three, and before April first, nineteen hundred ninety-four, from
46 the taxes imposed by sections three hundred one-a and three hundred
47 one-e of this article, (i) initially fifty-four percent shall be depos-
48 ited, as prescribed by subdivision (d) of section three hundred one-j of
49 this chapter, (ii) twenty-eight and three-tenths percent shall be depos-
50 ited and disposed of pursuant to such section one hundred seventy-one-a
51 of this chapter in the general fund and (iii) seventeen and seven-tenths
52 percent shall be deposited in such mass transportation operating assist-
53 ance fund as prescribed in the aforestated manner. Provided, however,
54 that, prior to such deposit, from the amounts so collected or received
55 during the period commencing on January first, nineteen hundred ninety-
56 four and ending on March thirty-first, nineteen hundred ninety-four, an
S. 6295 118 A. 9295
1 amount equal to the portion of the taxes, interest and penalties so
2 received or collected resulting from the amendments made by sections
3 forty-two, forty-three and forty-four of [a] chapter fifty-seven of the
4 laws of nineteen hundred ninety-three [that enacted this sentence] shall
5 be deposited and disposed of pursuant to the provisions of subdivision
6 one of section one hundred seventy-one-a of this chapter. Except as
7 otherwise provided, of all taxes, interest and penalties collected or
8 received on or after April first, nineteen hundred ninety-four, from the
9 taxes imposed by sections three hundred one-a and three hundred one-e of
10 this article, (i) initially fifty-four percent shall be deposited, as
11 prescribed by subdivision (d) of section three hundred one-j of this
12 article, (ii) twenty-eight and three-tenths percent shall be deposited
13 and disposed of pursuant to such section one hundred seventy-one-a of
14 this chapter in the general fund, (iii) seven and nine hundred sixty-
15 five thousandths percent shall be deposited in such mass transportation
16 operating assistance fund as prescribed in the aforestated manner and
17 (iv) nine and seven hundred thirty-five thousandths percent shall be
18 deposited in the revenue accumulation fund. Except as otherwise
19 provided, of all taxes, interest and penalties collected or received on
20 or after September first, nineteen hundred ninety-four and before
21 September first, nineteen hundred ninety-five, from the taxes imposed by
22 sections three hundred one-a and three hundred one-e of this article,
23 (i) initially fifty-nine percent shall be deposited, as prescribed by
24 subdivision (d) of section three hundred one-j of this article, (ii)
25 twenty-two and four-tenths percent shall be deposited and disposed of
26 pursuant to such section one hundred seventy-one-a of this chapter in
27 the general fund, (iii) eight and three hundred seventy thousandths
28 percent shall be deposited in such mass transportation operating assist-
29 ance fund as prescribed in the aforestated manner and (iv) ten and two
30 hundred thirty thousandths percent shall be deposited in the revenue
31 accumulation fund. Except as otherwise provided, of all taxes, interest
32 and penalties, collected or received on or after September first, nine-
33 teen hundred ninety-five and before April first, nineteen hundred nine-
34 ty-six from the taxes imposed by sections three hundred one-a and three
35 hundred one-e of this article, (i) initially sixty-two and eight-tenths
36 percent shall be deposited as prescribed by subdivision (d) of section
37 three hundred one-j of this article, (ii) eighteen percent shall be
38 deposited and disposed of pursuant to section one hundred seventy-one-a
39 of this chapter in the general fund, (iii) eight and six hundred forty
40 thousandths percent shall be deposited in such mass transportation oper-
41 ating assistance fund as prescribed in the aforestated manner and (iv)
42 ten and five hundred sixty thousandths percent shall be deposited in the
43 revenue accumulation fund. Except as otherwise provided, of all taxes,
44 interest and penalties collected or received on or after April first,
45 nineteen hundred ninety-six, and before January first, nineteen hundred
46 ninety-seven from the taxes imposed by sections three hundred one-a and
47 three hundred one-e of this article, (i) initially sixty-three and
48 three-tenths percent shall be deposited, as prescribed by subdivision
49 (d) of section three hundred one-j of this article, (ii) seventeen and
50 four-tenths percent shall be deposited and disposed of pursuant to such
51 section one hundred seventy-one-a of this chapter in the general fund
52 and (iii) nineteen and three-tenths percent shall be deposited in such
53 mass transportation operating assistance fund as prescribed in the
54 aforestated manner. Except as otherwise provided, of all taxes, inter-
55 est and penalties collected or received on or after January first, nine-
56 teen hundred ninety-seven and before January first, nineteen hundred
S. 6295 119 A. 9295
1 ninety-eight from the taxes imposed by sections three hundred one-a and
2 three hundred one-e of this article, (i) initially sixty-six and two-
3 tenths percent shall be deposited, as prescribed by subdivision (d) of
4 section three hundred one-j of this article, (ii) fourteen and one-half
5 percent shall be deposited and disposed of pursuant to such section one
6 hundred seventy-one-a of this chapter in the general fund and (iii)
7 nineteen and three-tenths percent shall be deposited in such mass trans-
8 portation operating assistance fund as prescribed in the aforestated
9 manner. Except as otherwise provided, of all taxes, interest and penal-
10 ties collected or received on or after January first, nineteen hundred
11 ninety-eight and before April first, nineteen hundred ninety-nine from
12 the taxes imposed by sections three hundred one-a and three hundred
13 one-e of this article, (i) initially sixty-eight and one-tenth percent
14 shall be deposited, as prescribed by subdivision (d) of section three
15 hundred one-j of this article, (ii) twelve and four-tenths percent shall
16 be deposited and disposed of pursuant to such section one hundred seven-
17 ty-one-a of this chapter in the general fund and (iii) nineteen and
18 one-half percent shall be deposited in such mass transportation operat-
19 ing assistance fund as prescribed in the aforestated manner. Except as
20 otherwise provided, of all taxes, interest and penalties collected or
21 received on or after April first, nineteen hundred ninety-nine, from the
22 taxes imposed by sections three hundred one-a and three hundred one-e of
23 this article, (i) initially sixty-nine and eight-tenths percent shall be
24 deposited, as prescribed by subdivision (d) of section three hundred
25 one-j of this article, (ii) ten and seven-tenths percent shall be depos-
26 ited and disposed of pursuant to such section one hundred seventy-one-a
27 of this chapter in the general fund and (iii) nineteen and one-half
28 percent shall be deposited in such mass transportation operating assist-
29 ance fund as prescribed in the aforestated manner. Except as otherwise
30 provided, of all taxes, interest and penalties collected or received on
31 or after April first, two thousand one, from the taxes imposed by
32 sections three hundred one-a and three hundred one-e of this article,
33 (i) initially [seventy and one-half] eighty and three-tenths percent
34 shall be deposited, as prescribed by subdivision (d) of section three
35 hundred one-j of this article[,] and (ii) [nine and eight-tenths percent
36 shall be deposited and disposed of pursuant to such section one hundred
37 seventy-one-a of this chapter in the general fund and (iii)] nineteen
38 and seven-tenths percent shall be deposited in such mass transportation
39 operating assistance fund as prescribed in the aforestated manner.
40 Provided, further, that on or before the twenty-fifth day of each
41 month commencing with October, nineteen hundred ninety and terminating
42 with the month of March, two thousand one, the comptroller shall deduct
43 the amount of six hundred twenty-five thousand dollars prior to any
44 deposit or disposition of the taxes, interest and penalties collected or
45 received pursuant to such sections three hundred one-a and three hundred
46 one-e and shall pay such amount to the state treasury to the credit of
47 the general fund. Provided, further that on or before the twenty-fifth
48 day of each month commencing with April, two thousand one, the comp-
49 troller shall deduct the amount of six hundred twenty-five thousand
50 dollars prior to any deposit or disposition of the taxes, interest, and
51 penalties collected or received pursuant to such sections three hundred
52 one-a and three hundred one-e and shall deposit such amount in the dedi-
53 cated fund accounts pursuant to subdivision (d) of section three hundred
54 one-j of this article. Provided, further, that commencing January
55 fifteenth, nineteen hundred ninety-one, and on or before the tenth day
56 of March and the fifteenth day of June and September of such year, the
S. 6295 120 A. 9295
1 commissioner [of taxation and finance] shall, based on information
2 supplied by taxpayers and other appropriate sources, estimate the amount
3 of the utility credit authorized by section three hundred one-d of this
4 article which has been accrued to reduce tax liability under section one
5 hundred eighty-six-a of this chapter during the period covered by such
6 estimate and certify to the state comptroller such estimated amount. The
7 comptroller shall forthwith, after receiving such certificate, deduct
8 the amount of such credit so certified by the commissioner [of taxation
9 and finance] prior to any deposit or disposition of the taxes, interest
10 and penalties collected or received pursuant to such sections three
11 hundred one-a and three hundred one-e and shall pay such amount so
12 certified and deducted into the state treasury to the credit of the
13 general fund. As soon as practicable after April first, nineteen hundred
14 ninety-one, nineteen hundred ninety-two and nineteen hundred ninety-
15 three, but before June fifteenth of each such year, the commissioner
16 shall determine the amount of the utility tax credit which has been
17 actually used to reduce tax liability under such section one hundred
18 eighty-six-a and shall certify the difference between such actual amount
19 and the earlier estimated amount. Also, subsequently, during the fiscal
20 year when the commissioner becomes aware of changes or modifications
21 with respect to actual credit usage, the commissioner shall, as soon as
22 practicable, issue a certification setting forth the amount of any
23 required adjustment to the amount of actual credit usage previously
24 certified. After receiving the certificate of the commissioner with
25 respect to actual credit usage or modification of the same, the comp-
26 troller shall forthwith adjust general fund receipts and the revenues to
27 be deposited or disposed of under this article to reflect the difference
28 so certified by the commissioner. The commissioner [of taxation and
29 finance] shall not be liable for any overestimate or underestimate of
30 the amount of the utility credit which has been accrued to reduce tax
31 liability under such section one hundred eighty-six-a. Nor shall the
32 commissioner be liable for any inaccuracy in any certificate with
33 respect to the amount of such credit actually used or any required
34 adjustment with respect to actual credit usage, but the commissioner
35 shall as soon as practicable after discovery of any error adjust the
36 next certification under this section to reflect any such error.
37 On or before July thirty-first, nineteen hundred ninety-two and on or
38 before July thirty-first, nineteen hundred ninety-three, the commission-
39 er [of taxation and finance] shall conduct the following reconciliation
40 with respect to the preceding fiscal year: he shall multiply the total
41 of all taxes, penalties and interest, after refunds and reimbursements,
42 which are derived from the motor fuel component, the automotive-type
43 diesel motor fuel component and the aviation gasoline component by twen-
44 ty fifty-fifths; the total of all taxes, penalties and interest, after
45 refunds and reimbursements, which are derived from the nonautomotive-
46 type diesel motor fuel component (excluding taxes, penalties and inter-
47 est which are derived from product with respect to which the credit or
48 reimbursement provided by section three hundred one-d is taken) by twen-
49 ty-fiftieths; and all taxes, penalties and interest, after refunds and
50 reimbursements, which are derived from the residual petroleum product
51 component (excluding taxes, penalties and interest which are derived
52 from product with respect to which the credit or reimbursement provided
53 by section three hundred one-d is taken) by twenty-fortieths. The
54 products of the foregoing multiplications shall be added together and
55 the resulting sum of such products shall be compared with the total of
56 the amounts initially distributed during such fiscal year with respect
S. 6295 121 A. 9295
1 to such components (excluding receipts derived from product with respect
2 to which the credit or reimbursement provided by section three hundred
3 one-d is taken and excluding any amount which represents a reconcil-
4 iation adjustment pursuant to this paragraph) pursuant to section one
5 hundred seventy-one-a of this chapter which represented thirty-five
6 percent of the total, after refunds and reimbursements, of all taxes,
7 penalties and interest collected or received during such fiscal year
8 under sections three hundred one-a and three hundred one-e during the
9 months of such fiscal year with respect to such components. The commis-
10 sioner shall then certify the amount of such difference to the comp-
11 troller. If the amounts initially distributed in such fiscal year are
12 greater than the sum of such products, the comptroller shall withhold an
13 amount equal to twenty-seven and three-tenths percent of such difference
14 from the first moneys otherwise payable to the general fund pursuant to
15 this subdivision and shall pay such amount to the mass transportation
16 operating assistance fund to the credit of the metropolitan mass trans-
17 portation operating assistance account and the public transportation
18 systems operating assistance account thereof in the aforestated manner.
19 If the amounts initially distributed in such fiscal year are less than
20 the sum of such products, the comptroller shall withhold an amount equal
21 to twenty-seven and three-tenths percent of such difference from the
22 first moneys otherwise payable to the mass transportation operating
23 assistance fund pursuant to this subdivision and shall pay such amount
24 to the general fund.
25 When the commissioner becomes aware of changes or modifications with
26 respect to the distribution of revenue under this article, the commis-
27 sioner shall, as soon as practicable, issue a certification setting
28 forth the amount of any required adjustment. After receiving the certif-
29 icate of the commissioner with respect to any adjustments, the comp-
30 troller shall forthwith adjust general fund receipts and the revenues to
31 be deposited or disposed of under this article to reflect the difference
32 so certified by the commissioner. The commissioner [of taxation and
33 finance] shall not be liable for any overestimate or underestimate of
34 the amount of the distribution. Nor shall the commissioner be liable for
35 any inaccuracy in any certificate with respect to the amount of the
36 distribution or any required adjustment with respect to the distrib-
37 ution, but the commissioner shall as soon as practicable after discovery
38 of any error adjust the next certification under this section to reflect
39 any such error.
40 Prior to making deposits as provided in this subdivision, the comp-
41 troller shall retain such amount as the commissioner may determine to be
42 necessary, subject to the approval of the director of the budget, for
43 reasonable costs of the department [of taxation and finance] in adminis-
44 tering and collecting the taxes deposited pursuant to this subdivision
45 and for refunds and reimbursements with respect to such taxes, out of
46 which the comptroller shall pay any refunds or reimbursements of such
47 taxes to which taxpayers shall be entitled.
48 § 9. Subdivision 21 of section 401 of the vehicle and traffic law, as
49 amended by chapter 55 of the laws of 1992 and the opening paragraph as
50 amended by section 75 of part A of chapter 56 of the laws of 1998, is
51 amended to read as follows:
52 21. The commissioner shall deposit daily the percentages listed below
53 of all fees collected or received by the commissioner after March thir-
54 ty-first, nineteen hundred ninety-three pursuant to certain registration
55 fees imposed by (a) paragraph a of subdivision six, (b) all schedules of
56 subdivision seven and (c) paragraph a of subdivision eight of this
S. 6295 122 A. 9295
1 section in a responsible bank, banking house or trust company, which
2 shall pay the highest rate of interest to the state for such deposit to
3 the credit of the comptroller on account of the dedicated highway and
4 bridge trust fund established pursuant to section eighty-nine-b of the
5 state finance law. The commissioner shall so deposit thirteen percent of
6 all such registration fees so collected or so received after March thir-
7 ty-first, nineteen hundred ninety-three, seventeen percent of all such
8 registration fees so collected or so received after December thirty-
9 first, nineteen hundred ninety-four, twenty percent of all such regis-
10 tration fees so collected or so received after December thirty-first,
11 nineteen hundred ninety-five, twenty-eight percent of all such registra-
12 tion fees so collected or so received after March thirty-first, nineteen
13 hundred ninety-eight, thirty-four percent of all such registration fees
14 so collected or so received after June thirtieth, nineteen hundred nine-
15 ty-eight, and forty-five and five-tenths percent of all such registra-
16 tion fees so collected or so received after January thirty-first, nine-
17 teen hundred ninety-nine. Every bank, banking house or trust company
18 that accepts such deposits shall execute and file in the office of the
19 department of audit and control an undertaking to the state, in the sum,
20 and with such sureties, as are required and approved by the comptroller
21 for the safe keeping and prompt payment on legal demand therefor of all
22 such moneys held by or on deposit in such bank, banking house, or trust
23 company, with interest thereon on daily balances at such rate as the
24 comptroller may fix. Every such undertaking shall have endorsed thereon
25 or annexed thereto the approval of the attorney general as to its form.
26 The commissioner shall deposit daily the percentages listed below of
27 all fees collected or received by the commissioner after March thirty-
28 first, two thousand one pursuant to certain registration fees imposed by
29 (a) paragraph a of subdivision six, (b) all schedules of subdivision
30 seven, and (c) paragraph a of subdivision eight of this section in a
31 responsible bank, banking house or trust company, which shall pay the
32 highest rate of interest to the state for such deposit to the credit of
33 the comptroller on account of the dedicated highway and bridge trust
34 fund established pursuant to section eighty-nine-b of the state finance
35 law and the dedicated mass transportation trust fund established pursu-
36 ant to section eighty-nine-c of the state finance law and to distribute
37 such deposit pursuant to the provisions of subdivision (d) of section
38 three hundred one-j of the tax law. In addition to the percentages spec-
39 ified in the opening paragraph of this section, the commissioner shall
40 so deposit twenty-three and five-tenths percent of all such registration
41 fees so collected or so received after March thirty-first, two thousand
42 one and fifty-four and five-tenths percent of all such registration fees
43 so collected or so received after March thirty-first, two thousand two.
44 Every bank, banking house or trust company that accepts such deposits
45 shall execute and file in the office of the department of audit and
46 control an undertaking to the state, in the sum, and with such sureties,
47 as are required and approved by the comptroller for the safe keeping and
48 prompt payment on legal demand therefor of all such moneys held by or in
49 deposit in such bank, banking house or trust company, with interest
50 thereon on daily balances at such rate as the comptroller may fix. Every
51 such undertaking shall have endorsed thereon or annexed thereto the
52 approval of the attorney general as to its form.
53 Of the revenues so deposited, the comptroller shall retain in his
54 hands such amount as the commissioner may determine to be necessary for
55 refunds or reimbursements of the fees collected or received pursuant to
56 (a) paragraph a of subdivision six, (b) all schedules of subdivision
S. 6295 123 A. 9295
1 seven and (c) paragraph a of subdivision eight of this section to which
2 registrants shall be entitled under the provisions of this article, out
3 of which amount the commissioner shall pay any refunds or reimbursements
4 of the fees collected or received pursuant to (a) paragraph a of subdi-
5 vision six, (b) all schedules of subdivision seven and (c) paragraph a
6 of subdivision eight of this section to which registrants shall be enti-
7 tled under such provisions. The comptroller, after reserving the amount
8 to pay such refunds or reimbursements, shall, on or before the last day
9 of each month, deposit the balance of the revenue so deposited during
10 such month into the dedicated highway and bridge trust fund established
11 pursuant to section eighty-nine-b of the state finance law and the dedi-
12 cated mass transportation trust fund established pursuant to section
13 eighty-nine-c of the state finance law.
14 § 10. Notwithstanding any other law, rule or regulation to the contra-
15 ry, the comptroller is hereby authorized and directed to deposit in
16 equal monthly installments and distribute pursuant to the provisions of
17 subdivision (d) of section 301-j of the tax law amounts listed below to
18 the credit of the dedicated highway and bridge trust fund and the dedi-
19 cated mass transportation trust fund from taxes now deposited into the
20 general fund pursuant to provisions of the vehicle and traffic law:
21 twenty-five million six hundred thousand dollars from April 1, 2002
22 through March 31, 2003, sixty-two million three hundred thousand dollars
23 from April 1, 2003 though March 31, 2004, and one hundred sixty-four
24 million five hundred thousand dollars from April 1, 2004 through March
25 31, 2005 and the same amount each year thereafter.
26 § 11. Paragraph (a) of subdivision 3 of section 89-b of the state
27 finance law, as amended by chapter 56 of the laws of 1993, is amended to
28 read as follows:
29 (a) The special obligation reserve and payment account shall consist
30 (i) of all moneys required to be deposited in the dedicated highway and
31 bridge trust fund pursuant to the provisions of sections two hundred
32 eighty-nine-e, three hundred one-j and five hundred fifteen of the tax
33 law, section four hundred one of the vehicle and traffic law, and
34 section thirty-one of this chapter which amends this sentence, (ii) all
35 fees, fines or penalties collected by the commissioner of transportation
36 pursuant to section fifty-two and subdivisions five, eight and twelve of
37 section eighty-eight of the highway law, subdivision fifteen of section
38 three hundred eighty-five of the vehicle and traffic law, section
39 fifteen of this chapter, excepting moneys deposited with the state on
40 account of betterments performed pursuant to subdivision twenty-seven or
41 subdivision thirty-five of section ten of the highway law, and (iii) any
42 other moneys collected therefor or credited or transferred thereto from
43 any other fund, account or source.
44 § 12. Sections 89 and 89-a of the state finance law are REPEALED.
45 § 13. The closing paragraph of section 52 of the highway law, as
46 amended by chapter 297 of the laws of 1972, is amended to read as
47 follows:
48 Any person, firm or corporation violating this section shall be liable
49 to a fine of not less than twenty-five dollars nor more than one thou-
50 sand dollars for each day of violation to be recovered by the commis-
51 sioner of transportation [and paid into the state treasury to the credit
52 of the capital construction fund]. All fees, fines or penalties
53 collected or recovered by the commissioner pursuant to this section
54 shall be deposited by the comptroller into the special obligation
55 reserve and payment account of the dedicated highway and bridge trust
56 fund established pursuant to section eighty-nine-b of the state finance
S. 6295 124 A. 9295
1 law, excepting monies deposited with the state on account of betterments
2 performed pursuant to subdivision twenty-seven or subdivision thirty-
3 five of section ten of this chapter.
4 § 14. Subdivision 15 of section 385 of the vehicle and traffic law is
5 amended by adding a new paragraph (i) to read as follows:
6 (i) All moneys collected by the commissioner of transportation pursu-
7 ant to this subdivision shall be deposited by the comptroller into the
8 special obligation reserve and payment account of the dedicated highway
9 and bridge trust fund established pursuant to section eighty-nine-b of
10 the state finance law.
11 § 15. Section 15 of the state finance law is amended by adding a new
12 subdivision 6 to read as follows:
13 6. All fees collected by the commissioner of transportation pursuant
14 to the provisions of this section shall be deposited by the comptroller
15 into the special obligation reserve and payment account of the dedicated
16 highway and bridge trust fund established pursuant to section eighty-
17 nine-b of this chapter.
18 § 16. This act shall take effect immediately; provided, however, that:
19 (a) section eight of this act shall take effect on the same date as
20 section 6 of part H of chapter 407 of the laws of 1999, as amended,
21 takes effect.
22 (b) sections eleven, thirteen, fourteen and fifteen of this act shall
23 take effect April 1, 2000.
24 (c) section twelve of this act shall take effect April 1, 2003.
REPEAL NOTE.--Sections 89 and 89-a of the state finance law, proposed
to be repealed by section twelve of this act, establish, respectively,
the emergency highway reconditioning and preservation fund and the emer-
gency highway construction and reconstruction fund.
25 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
26 sion, section or part contained in any part of this act shall be
27 adjudged by any court of competent jurisdiction to be invalid, such
28 judgment shall not affect, impair, or invalidate the remainder thereof,
29 but shall be confined in its operation to the clause, sentence, para-
30 graph, subdivision, section or part contained in any part thereof
31 directly involved in the controversy in which such judgment shall have
32 been rendered. It is hereby declared to be the intent of the legislature
33 that this act would have been enacted even if such invalid provisions
34 had not been included herein.
35 § 3. This act shall take effect immediately provided, however, that
36 the applicable effective date of Parts A through S of this act shall be
37 as specifically set forth in the last section of such Parts.